Noncandidate wins as mayor of Samar town

This one is for the books: A reelectionist mayor was defeated by a noncandidate in the May 13 local elections, and the board of election canvassers proclaimed the noncandidate as the winner. Only in the Philippines.

How and where did this happen? On Oct. 3, 2012, Nicasio L. Abaigar filed his certificate of candidacy (COC) for mayor of Calbiga, Samar. On the same day, Calbiga Mayor Melchor F. Nacario filed his own COC. Nacario had served as town mayor for four terms, with a gap between the third and fourth terms.

On Oct. 10, 2012, Santiago B. Abelido, a registered voter and a resident of Calbiga, petitioned the Commission on Elections “to deny due course to or cancel the [COC]” of Abaigar, on the ground of misrepresentation. In the document, Abaigar claimed that he is a registered voter of Calbiga, Samar; that he has been a resident of the Philippines since birth; and that he is not a permanent resident of or an immigrant to a foreign country. All of these are false, Abelido said.

It turned out that at the time that he filed his COC, Abaigar was not a Filipino citizen but an American citizen and a permanent resident of Sacramento, California.  Based on the records, Abaigar entered the Philippines on Sept. 27, 2012, using his US passport with number 208986310, and left on Oct. 8, 2012. He filed his COC on Oct. 3, 2012.

The Comelec said in its decision: “It bears stressing that he (Abaigar) was using a US passport from Jan. 30, 2000, to the time he left the Philippines [in] 2012. This means only one thing: Abaigar underwent naturalization process in the United States; he was born in the Philippines of Filipino parents. Based on current jurisprudence, Abaigar abandoned his Filipino citizenship and was divested of his domicile in the Philippines when he was naturalized.”

The poll body cancelled Abaigar’s COC for mayor of Calbiga. Abaigar filed a motion for reconsideration, but the Comelec en banc denied it for lack of merit.

Nevertheless, Abaigar’s name remained on the ballot.

On May 12, 2013, Abelido sought from the Comelec en banc an “omnibus motion (A) not to count/canvass the votes and/or (B) suspend proclamation.”

But at noon on Election Day, after the voting, the board of canvassers started canvassing the votes. The final result of the canvassing: Abaigar, Nicasio L.: 5,804 votes; Nacario, Melchor F.: 5,747 votes; and Daciag, Jaime S.: 27 votes.

Abaigar had won by 57 votes.

Despite the protests of Nacario’s counsel, the board of canvassers proclaimed Abaigar as the duly elected mayor of Calbiga on May 14. The next day, Abaigar flew back to the United States.

Nacario subsequently filed a petition at the Comelec to annul the proclamation of Abaigar as mayor-elect of Calbiga. He argued that Abaigar was no longer a candidate at the time of the election, the Comelec en banc having denied with finality his motion seeking reconsideration of the cancellation of his COC.

Nacario also said a resolution that is final and executory is defined by the Comelec thus: “A decision or resolution is deemed final and executory if, in case of a Division ruling, no motion for reconsideration is filed within the reglamentary period, or in cases of rulings of the Commission En Banc, no restraining order is issued by the Supreme Court within five days from receipt of the decision or resolution.”

He said it was clear that the effects of the Comelec en banc resolution canceling one’s COC can only be suspended by a restraining order from the Supreme Court. He pointed out that Abaigar had not even filed an appeal at the high court at the time of his proclamation.

Thus, the Comelec en banc resolution canceling Abaigar’s COC being final and executory, Abaigar could not be considered a qualified candidate during the May 13 elections, Nacario said. He added that according to the rules, votes cast in Abaigar’s favor are considered stray votes.

He cited this relevant provision: “Section 9. Effect of granting a Petition—In the event a Petition to Deny Due Course to or Cancel a Certificate of Candidacy is granted by final judgement as defined in the immediately preceding section, the votes cast for the candidate whose certificate of candidacy has been cancelled or denied due course shall be deemed as stray votes.”

“A cancelled COC cannot give rise to a valid candidacy, much less to valid votes,” Nacario argued, citing Bautista v. Comelec, GR No. 133840, Nov. 13,1998, 298 SCRA 480. “His COC being cancelled, Abaigar should not have been treated as a candidate at all, and votes in his favor should not have been counted and considered by the MBOC.”

Nacario also said that he being the only eligible and qualified candidate who got the highest number of votes, it is he who should have been proclaimed.

There is a similar case (Maquiling v Comelec, Arnado & Balua, GR 195649), decided last April 16,  in which the Supreme Court ruled: Citizenship is not a matter of convenience… While those who acquire dual citizenship by choice are afforded the right of suffrage, those who seek election or appointment to public office are required to renounce their foreign citizenship to be deserving of the public trust. Holding public office demands full and undivided allegiance to the Republic and to no other.