Tatad’s case an exemption?
Instead of dismissing the case, however, the Comelec division gave Tatad’s Petition for Disqualification due course, treating it instead as a “Petition to Deny Due Course,” over which the commission has jurisdiction.
Now, can the First Division do that? No. There are 3 reasons:
1. Tatad never prayed for the cancellation of Grace Poe’s COC, but for her disqualification.
The First Division cannot substitute the litigant’s intent with its own, because the Comelec is supposedly neutral and, under the law, it has no motu propio power (or power on its own) to file a Petition to Deny Due Course, except for nuisance candidates.
2. The Petition to Deny Due Course specifically requires the allegation of “bad faith” or “deliberate false representation [of a qualification].”
These are jurisdictional elements. Without these indispensable allegations, a “Petition for Disqualification” can never be treated as “Petition to Deny Due Course.”
None of these jurisdictional elements were ever alleged in Tatad’s petition. As clarified in Gonzales vs COMELEC (GR Number 192856, March 8, 2011), “[Petition to Deny Due Course] ought not to be interchanged or confused with a [Petition for Disqualification] petition. They are different remedies, based on different grounds, and resulting in different eventualities.”
3. Comelec’s own rule explicitly prohibits such action, in fact, it mandates the automatic or summary dismissal thereof.
This is the most important reason for the Comelec to have dismissed Tatad’s petition.
While this may have been tolerated in the past, the amendment of Paragraph 2 of Section 1 of Rule 25 of the Comelec Rules of Procedure (Resolution Number 9523, effective September 25, 2012) has explicitly disallowed such practice. I quote the rule:
“A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or Cancel a Certificate of Candidacy or Petition to Declare a Candidate as a Nuisance Candidate, or a combination thereof, shall be summarily dismissed.”
I cannot over-emphasize the use of the word “shall” to mean that it is mandatory and compulsory. In fact, the debate within the Comelec en banc when this amendment was adopted in 2012 revolved around this. Resolution No. 9523 has not been amended to this day, and I see no special or exceptional reason why Tatad’s case should be exempted from its operation.
It is worth noting, however, that the Tatad case is the only case of the 3 pending cases that actually questioned the status of Grace Poe as a foundling. Without it, the First Division could not have touched and ruled on that issue.
(Next: 3 curious points in Comelec 1st division’s ruling vs Grace Poe)
Emil Marañon is an election lawyer who served as chief of staff of recently retired Comelec Chairman Sixto Brillantes Jr. He is currently studying Human Rights, Conflict and Justice at SOAS, University of London, as a Chevening scholar.