Rosal asked SC to stop Comelec from cancelling CoCs of candidates with pending appeal

Former governor Noel Rosal asked the Supreme Court to stop the Commission on Elections from enforcing resolution No. 11044-A which bars a former public official, like him, who has been dismissed in an administrative case by the Office of the Ombudsman with perpetual disqualification from holding public office even while his appeal is pending before the Court of Appeals.

In a 39-page petition for certiorari and prohibition, Rosal, through his lawyers led by election lawyer Romula Macalintal, argued that “existing jurisprudence or decisions of the Supreme Court and even existing Comelec policy have been very consistent in previous elections that the said penalty of perpetual disqualification applies only once the decision of the Ombudsman becomes final and executory”.

Rosal said the Comelec’s resolution to dismiss the CoC of candidates is unconstitutional even if they have been dismissed from office. He said the dismissal case can still be appealed before the Supreme Court, the highest court in the Philippines.

According to the Comelec, resolution was issued to harmonize section 12, article 1 of the Omnibus Election Code (OEC) with existing laws and jurisprudence” in disqualification cases by referring to its law department all petitions for disqualification of candidates with perpetual disqualification.

On September 4, 2024, Rosal received a copy of the Ombudsman June 2024 resolution dismissing him from service. He made a timely appeal of said resolution before the Court of Appeals on September 16, 2024, docketed as CA-GR No. 185892 now pending with the court’s Seventeenth Division.

While the order of dismissal is immediately executory, the penalty of perpetual disqualification as held in various cases and Comelec’s own policy citing the 2013 case of Jalosjos vs Comelec applies only in case of final judgment and in criminal cases and not when the Ombudsman decision is pending appeal before the Court of Appeals or Supreme Court. The Ombudsman decision is not yet final and executory, Rosal said.

Macalintal submitted as part of Rosal’s petition a copy of an opinion of the Comelec’s law department dated April 20, 2016 citing said Jalosjos case stating that “the power of the Comelec to bar from running for public office those suffering from perpetual disqualification shall be by virtue of a final judgment or the judgment of the Ombudsman has attained finality.

He reminded Comelec that in various cases it decided, such as the 2017 case of Bello vs Paulete, EPC No. 2016-22, its First Division held that “perpetual disqualification in an Ombudsman case applies only when there is a final judgment on the administrative case. As stated, Rosal’s appeal from the Ombudsman decision is not yet final because of his timely appeal to the Court of Appeals.

Macalintal also argued that the power of Comelec to disqualify a candidate cannot be done in an administrative proceedings through its law department, since it is not within the administrative power of the Comelec, but rather it calls for the exercise of its quasi-judicial functions through Division or “En Banc” citing the case of Buenafe versus Comelec which involved the disqualification case of then candidate, now President Ferdinand E. Marcos, Jr., in that a disqualification of a candidate “requires the Comelec’s exercise of its quasi-judicial function.

By referring a disqualification case to its law department there is that imminent and clear danger that such candidate will be deprived of his right to due process because Comelec will act the incompatible roles of complainant, judge, and prosecutor, since its law department has no choice but to comply with the directive of its superior to forthwith cancel the certificate of candidacy of the candidate,” the petition said, citing the 1992 case of Barican vs Comelec.

“And when that happens, then Rosal faces the clear and imminent danger of being deprived of his right of suffrage as there is that danger that his name may not be included in the official ballots while he is seeking further legal remedies,” Rosal said.

Rosal hit the Comelec’s purpose of “harmonizing” the provision of Section 12 of the OEC with existing laws and jurisprudence because resolution No. 11044-A does not state with specificity the said laws or jurisprudence Comelec intends to harmonize with section 12.

“By trying to harmonize” these laws, the Comelec is actually trying to modify or supply what it perceives to be a procedural gap in Section 12 or OEC which is usurpation of the legislative function. Comelec cannot provide what the law does not prescribe,” Rosal said, citing the 1992 case of Loong vs Comelec. In a word, there might be a procedural gap in the law but it is not for Comelec to supply the gap, its function not being legislative.

Rosal said that since his case at the Ombudsman involved an administrative case, then Section 12 of the OEC does not apply to him because said section refers only to criminal cases namely: subversion, insurrection, rebellion, and other criminal offenses with penalty of more than 18 months or crimes involving moral turpitude.” Such arbitrary, whimsical, and capricious acts demonstrate the very grave abuse of discretion committed by the Comelec in issuing the assailed resolution.

Due to this, Rosal asked the Supreme Court to conduct a special raffle of his petition in order for the court to take immediate action on his prayer for the issuance of a temporary restraining order o status quo ante order directing Comelec to cease and desist from implementing its said resolution No. 11044-A. – BY RHAYDZ BARCIA