PHILLIP Zafra, tail-end councilor in the 2019 election for members of the Cebu City Council, risks losing his seat if Marie Velle “Amay” Abella moves up and dislodges Zafra from the #8 slot in the south district.
Yet Zafra--the Partido Barug stalwart who might be evicted from the City Council by Amay’s petition to declare Sherwin Luie Abella a nuisance candidate--can do little in the legal squabble to protect the seat he won.
Zafra is not a party to the petition and thus has not received notices or summons from Comelec. He may be allowed to intervene by Comelec or the Supreme Court (SC), if the case is raised there, but what he has to say may have little influence on its ruling.
‘Mere silent observer’
To the high court, Zafra will be a “mere silent observer,” which was how the SC in Santos vs. Comelec and Jennifer Roxas described Consertino Santos, a candidate for Pasay City councilor who was not party to the 2016 election nuisance complaint.
The reason: The other candidates for councilor who don’t have the same surname are not affected by the nuisance case. “Regardless of whether the petition is granted or not,” the SC ruled in the Santos case (GR #235058, Sept. 4, 2018), “the votes of the unaffected candidates shall be completely the same.”
Applied to the Abella controversy in Cebu City, Zafra’s votes (115,292) will not go down or up. The bad thing is that Amay’s votes (110,090), if padded with Sherwin’s votes (20,262), will increase to 130,352 or 15,060 more than Zafra’s—and topple the councilor from #8 slot and out of the City Council.
But Comelec, heeding the SC ruling in the Santos case, may no longer automatically give Amay all of Sherwin’s votes. The SC rejected Comelec’s “simple arithmetic of adding the votes” from the nuisance candidate to the legitimate candidate. It is possible that in a “multi-slot office,” such as that of a councilor, the voter may vote for both the legitimate candidate and the nuisance candidate. “Comelec still has to inspect the ballots,” the SC said.
In those ballots where the voter votes for both Amay and Sherwin, Amay will get only one vote. In other words, Sherwin will get zero credit from all the votes for him but Amay will also not get double credit in ballots where both Abellas are voted for.
Reduced add-on votes
Amay’s add-on votes from Sherwin may be reduced and thus also cut down her initially estimated lead of 15,060 over Zafra. But how many among the 20,262 voters for Sherwin also voted for Amay?
Zafra’s hope of survival is that the result of the recount wont’ give enough pile of votes to exceed his and throw him out of the City Council.
Not helping any is that Sherwin has disappeared from, or has never been in, public view. As early as November and December last year, the other Abella couldn’t be served notices, didn’t answer Amay’s complaint, and was a no-show at two scheduled Comelec hearings in late 2018. No one has been resisting the legal blitz against Sherwin.
Salimbangon doctrine, delay
And, of course, there’s the Benhur Salimbangon doctrine, laid down in Tining Martinez III vs. Salimbangon (2010 case, arising from 2007 elections), which fortifies Amay’s case: “The votes shall be credited to the legitimate candidate regardless of whether the decision in the nuisance case becomes final and executory before or after the elections.”
Zafra may also wish for bureaucratic delay to enable him to enjoy as much of the three-year term as he can. But with the gentle scolding the SC gave Comelec in the Santos case, it may act on Amay’s complaint more speedily.
In the Santos case, the SC gave Comelec 30 days from receipt of decision to implement the ruling. The same prodding may come in Amay Abella’s complaint.
If the dispute won’t reach the high court, things may even run faster. Prudent for Zafra if he won’t move in huge, hard wood furniture into his office yet.