“This is a disaster waiting to happen.”
- Justice Antonio T. Carpio[1]
The Supreme Court declared unconstitutional in Quinto vs. Comelec[2] the second provision in the third paragraph of Section 13, Republic Act 9369,[3] Section 66 of the Omnibus Election Code (OEC); and Section 4(a) of Comelec Resolution 8678. Consequently, appointive public officials are no longer ipso facto resigned when they file their certificate of candidacy for an elective post.
The Court found that the assailed provisions are violative of the equal protection clause. According to the court, “in considering persons holding appointive positions as ipso facto resigned from their posts upon the filing of their COCs, but not considering as resigned all other civil servants, specifically the elective ones, the law unduly discriminates against the first class. The fact alone that there is substantial distinction between those who hold appointive positions and those occupying elective posts, does not justify such differential treatment.”
The ruling basically paves the way for justices, judges, election officials, military and police officers, members of the cabinet and all appointed civil servants to continue exercising the functions of, and holding on to, their appointive office while campaigning to get elected for an elective position.
The legal ramifications are of great significance. As Justice Carpio pointed out in his dissenting opinion, imagine if the Provincial Commander of the AFP files his COC for governor on 1 December 2009 for the 10 May 2010 elections. If he is not considered automatically resigned from office, he has until the start of the campaign period on 26 March 2010 to remain in his post, in command of hundreds, if not thousands, of fully-armed personnel. The same is true for judges, cabinet secretaries, and other heads of offices who have some kind of influence and control over certain personnel and government resources. There are even reports that some Comelec officials themselves have filed their COCs for certain elective positions.
Next elections, it would then be possible that the Chief Justice, the Comelec Chairperson or the AFP Chief of Staff become a candidate for President, Vice-President or Senator while serving the office to which they were appointed.
The decision does not seem to prevent the evil that the Constitution, in so many words, seeks to prevent. In fact, Article IX(B), Section 2(4) of the Constitution expressly provides that “No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign.”
Furthermore, if they lose, they just continue occupying their appointive posts. This is illogical because Section 6, Art. IX(B) of the Constitution provides that “No candidate who has lost in any election shall, within one year after such election, be appointed to any office in the Government of any government-owned or controlled corporations or in any of its subsidiaries.”
What this author finds even more strange is that originally, both elective officials and appointive officials are generally deemed resigned upon filing their COCs.[4] When the OEC was enacted in 1985, it substantially retained the rules on deemed resignations for both elected and appointive officials.[5] However, the Republic Act No. 9006[6] expressly repealed, among others, Section 67 of the OEC and rendered ineffective the provision relating to the automatic resignations of elected officials.
Curiously, RA 9006 is supposed to be “An Act To Enhance The Holding Of Free, Orderly, Honest, Peaceful And Credible Elections Through Fair Election Practices.” The law was all about the regulation of media or information in elections. But out of nowhere, and without any reasonable connection to the subject law, RA 9006, in its repealing clause, repealed Section 67 of the OEC. Unfortunately, the Supreme Court has already declared that the repealing clause of RA 9006 is not a rider and therefore constitutional in Fariñas vs. Comelec.[7] Personally, I still believe the repeal of Section 67 was a rider in the Fair Election Act.
It must be pointed out that the major reason behind the decision is to give some sort of equality between elective and appointive positions. The Court believed that prior to the decision, there was an “obvious discrimination” against appointive officials. Thus, in a way, the Court in this case removed said discrimination and treated elective and appointive positions the same.
Clearly, the effect of this decision is that public officials, whether elective or appointive, can keep their positions even when they have filed their COCs. Both Section 66, on appointive officials, and Section 67, on elective officials, of the OEC are now ineffective.
This author believes that if fairness and equality were the objectives, it would have been more logical to restore Section 67, instead of deleting Section 66. This way, we go back to what the OEC originally contained.
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Footnotes:
[1] Dissenting Opinion, Quinto vs. Comelec, G.R. No. 189698, December 1, 2009.
[2] G. R. No. 189698, 1 December 2009.
[3] The Poll Automation Law
[4] Under Section 22 of Commonwealth Act No. 357, “Every person holding a public appointive office or position shall ipso facto cease in his office or position on the date he files his certificate of candidacy.” On the other hand, Section 2 of Commonwealth Act No. 666 states that “Any elective provincial, municipal, or city official running for an office, other than the one for which he has been lastly elected, shall be considered resigned from his office from the moment of the filing of his certificate of candidacy.”
[5] Section 66 and 67.
[6] Fair Election Act, effective March 20, 2001.
[7] G.R. No. 152161. December 10, 2003.
