JERRY Guardo and Joel Garganera found their way back to the Cebu City Council through the backdoor. Could a political newcomer enjoy the same measure of success via a similar route?
Guardo and Garganera benefitted from the result of the Comelec decision in two separate petitions filed by a voter against Alvin Arcilla and Sisinio Andales, winners in the May 13 elections for councilors in the north district. Guardo and Garganera did not win, obtaining the ninth and tenth highest number of votes, respectively, in the same district.
After the Comelec canceled the certificates of candidacy of both BOPK candidates because they have already served three consecutive three-year terms, their council seats became vacant. Guardo and Garganera, under the law, are mandated to take their places.
The case of Amay Abella, who ran in the south district as a BOPK candidate, has a different factual and legal background since it does not involve the disqualification (legally, the cancellation of the certificate of candidacy) of a winner but that of a nuisance candidate in the May elections.
A nuisance candidate is one whose candidacy tends to put the election process in mockery or disrepute or cause confusion among voters by the similarity of his name to that of another registered candidate.
The Supreme Court has decided a number of cases involving a nuisance candidate, almost always crediting his votes to the legitimate candidate with the same surname. One of the most notable cases involved Tining Martinez, who was declared the duly elected congressman of the fourth district in the 2007 elections after another candidate with the same name, reportedly a tricycle driver, was disqualified for being a nuisance. Unfortunately, the decision to unseat his opponent came very late and Martinez was able to serve only the few remaining weeks of his term.
The delay of the Comelec in disqualifying a nuisance candidate has been a bane to the legitimate ones. The Supreme Court noted this in Dela Cruz vs. Comelec, saying any delay on the part of the poll body “increases the probability of votes lost” by the qualified candidate.
The “primordial objective of election laws is to give effect to, rather than frustrate, the will of the voter,” the Court said. “The inclusion of nuisance candidates turns the electoral exercise into an uneven playing field where the bona fide candidate is faced with the prospect of having a significant number of votes cast for him invalidated by the mere presence of another candidate with a similar surname.”
This was the point of Amay Abella when she sought the disqualification of Sherwin Abella for being a nuisance candidate. The Comelec agreed with her, only that it came too late as she may have already lost votes because the ruling was issued after the elections.
Abella now wants the Comelec to rectify their error by crediting all votes for Sherwin to her. By her calculations, she will place eighth, unseating Philip Zafra, if the Comelec, following established doctrine, grants her wish.
The only problem is how would the Comelec know if the people who voted for Sherwin did not also vote for Amay? Can the injustice done her by a nuisance candidate be rectified by allowing two votes from one and the same person credited to her?