Seares: Salimbangon doctrine most likely to unseat Zafra, install Abella

HERE’S the situation:

A Comelec division has ruled on a petition, filed on Oct. 23, 2018 by BOPK’s Marie Velle “Amay” Abella, that an independent candidate in the 2019 May election, one Sherwin Luie Abella, was a nuisance candidate.

What will happen in the Cebu City south district race for councilors is that the votes cast for Sherwin Luie will go to Amay, #10 in the final standing. Amay will leap over BOPK’s Roberto Cabarubbias, #9, and move up and dislodge Barug’s Councilor Philip Zafra, #8. Do the math: Sherwin Luie’s 20,262 votes will bloat Amay’s 110,090 votes to 130,352—or 15,060 more than Zafra’s. 115,292.

Both Amay and Sherwin Luie bear the same surname Abella. Amay’s petition argued that the similarity of surnames would confuse voters. Comelec agreed, citing these facts: (a) its notices to Sherwin Luie could not be served at his given address and (b) he was a no-show at hearings set by the division last Dec. 11 and Dec. 27.

Two questions

The questions are (1) whether the declaration of a candidate as a nuisance takes effect on election day even if it is made after the elections and (2) whether the “Abella” votes counted for Sherwin Luie are credited to Amay.

Yes, said the Supreme Court in its ruling in Martinez III vs. Salimbangon (GR #189034, Jan. 11, 2010). The protagonists then were Cebu’s Tining Martinez III and Benhur Salimbangon in the 2007 elections. Benhur lost in the protest with HRET but Tining never got to enjoy the term. Instead, Benhur benefited by legally breaching the term limit.

Councilor Zafra, in published reactions after news of the Comelec division ruling broke out, said the transfer of votes from Sherwin Luie to Amay is “not automatic.” True, the division ruling merely declared Sherwin Luie a nuisance and didn’t order the shift of votes. Besides. moving votes is not automatic when the position involved is for more than one person.

Voter’s intent

Zafra wondered, in an interview with Jason Monteclar on dyCM radio Monday (July 8), how voters’ intent could be changed from a vote for Sherwin Luie to a vote for Amay.

There’s this assumption the law makes, as interpreted by Comelec and Supreme Court, that when a nuisance candidate wades in, he causes the waters to darken. The nuisance bet creates confusion and uncertainty and, to Comelec and the SC, the closest indicator of voter’s intent is the surname. With the nuisance candidate struck, the vote logically goes to the “legitimate” candidate with the same surname.

Mechanism to use

The mechanism is not fully spelled out but what Cebu province elections chief Lionel Marco Castillano told me enlightens. Castillano said it will be “very much the same route” the recent cases of Councilors Alvin Arcilla and Sisenio Andales took.

Here’s what may happen: Petitioner Abella moves for a writ of execution. Sherwin Luie seeks reconsideration, that is, if he surfaces this time. The division turns him down and he may opt to go to Comelec en banc. The division or Comelec en banc, ruling in favor of Amay, orders a special board of canvassers to annul Zafra’s proclamation and proclaim Amay in his stead.

Zafra not a party

What can Zafra do? The councilor is not a party to the case. Amay filed the petition against Sherwin Luie, who defaulted by not answering and not showing up. No notices have been given to Zafra but he may intervene, Castillano said, by asking Comelec’s leave. After all, Zafra is the one who’ll be most adversely affected by the Comelec decision. If he is allowed by Comelec, he may then take the steps of opposing the execution and seeking court relief.

Just like the Arcilla and Andales cases, the unseating can be sooner than one thinks. Although the SC may still reverse the Comelec rulings, the high tribunal generally follows precedent and will depart from it only when the court finds a compelling a reason.

Not the Congress way

And what’s the difference between the Salimbangon and Amay cases? The House takes its sweet time in enforcing an outside decision to expel its member. Salimbangon enjoyed until the last day the full term that was not supposed to be his. Benhur even ran for and won another set of three terms. And this bonus: a Supreme Court doctrine on nuisance candidates is known by his name.

The City Council cannot protect Zafra the way Congress can and does. That’s why the prospect is dim for Zafra—and Barug, whose lead will be diminished by his eviction.


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