Antecedents to the nullification of proclamations (cont'd)

Extracts from the Comelec Resolution in the matter of declaring null and void the proceedings of the Provincial Board of Canvassers (PBOC) of Marinduqe and the subsequent proclamation of Regina O. Reyes as member of the House of Representative in the Lone District of Marinduque. Filed by Petitioner Rep. Lord Allan Jay Q. Velasco. (SPC No. 13-010):

“xxx Likewise, herein Petitioner through his counsel was constrained to move for the inhibition of Fiscal Bimbo Mercado, the Vice Chairman of the PBOC for having displayed bias and partiality. However, Atty. Edwin Villa, the Chairman of the PBOC immediately and quickly said that the PBOC ruling is that said motion for inhibition is denied.”

On May 16, 2013, respondent through counsel, Atty. Nelia Aureus received a copy of the May 14, 2013 Resolution of the Comelec in SPA No. 13-053 (DC).

On May 16, 2013, the regular Chairman of the Provincial Board of Canvassers  (PBOC) Provincial Election Supervisor Edwin Villa (PES Villa), was replaced by Asst. Regional Election Director Atty. Emmanuel E. Ignacio (ARED Ignacio). The new PBOC (Ignacio PBOC) proclaimed Respondent Reyes as the winning candidate for the position of representative of the House of Representatives. Petitioner claimed that ARED Ignacio has no written authority from the Commission to assume the position of Chairman of the Marinduque PBOC.

On May 20, 2013, the instant verified petition was filed by petitioner, and on May 30, 2013, a Supplement to the Petition was likewise filed.

On June 5, 2013, we issued a Certificate of Finality, declaring the May 14, 2013 Resolution that denied the motion for reconsideration of respondent to be final and executory, considering that more than 21 days have elapsed since the date of the promulgation of said resolution and no restraining order was issued by the Supreme Court.

Likewise, on the same date, June 5, 2013  at 2:35 p.m. respondent filed her verified Answer to the instant petition.

Earlier on, petitioner filed a Notice of Appeal  from the May 15, 2013 Order of the Villa PBOC, and the instant petition was treated as the appeal of said order. In addition, the petition seeks the declaration that the May 18, 2013 Proclamation of respondent Reyes is illegal, null and void from the beginning.

In this petition, petitioner prays for the following reliefs: 1) that the first May 15, 2013 Order of the Villa PBOC headed by Atty. Villa denying the oral motion to proclaim him as winning candidate be nullified. 2) that the second May 15, 2013 Order of the Villa PBOC proclaiming respondent Reyes be declared as illegal, null and void ab initio. 3) that the composition of the Ignacio PBOC under ARED Ignacio be declared illegal, 4) that the May 18, 2013 proclamation of respondent as winning candidate be nullified and the effects thereof suspended. 5) to direct the PBOC to implement the May 14, 2013 Resolution of the Commission in SPA No. 13-053 (DC) to declare all votes of respondent Reyes as stray votes and proclaim petitioner as the duly elected candidate.

In her verified answer, respondent alleged that there is no legal impediment to her proclamation as the May 14, 2013 Resolution of the Commission En Banc has not yet attained finality, considering that she has five (5) days to file a petition with the Supreme Court and get a restraining order. She received said Resolution on May 16, 2013 and, therefore, has up to May 21,  2013 to get the restraining order. Thus on May 16, 2013 the resolution has not et become final. Moreover, she argues that there was no suspension order from the Commission. Under Section 28, par 3 of Comelec Resolution No. 9648, since the Petition in SPA No. 13-053 (DC) remains pending with the Commission on the day of the canvassing and no suspension order of the proclamation is issued, then the May 18, 2013 proclamation is legal. As an affirmative defense, respondent contends that the jurisdiction over the instant petition falls within the jurisdiction of the House of Representatives Electoral Tribunal (HRET) and no longer with the Comelec. Citing Perez v. Comelec and Lazatin v. HRET petitioner claims her proclamation can no longer be questioned before a tribunal other than the HRET.

On June 19, 2013, the Commission First Division promulgated a resolution denying Velasco’s petition.

Before resolving the substantive issue, we first rule on whether this Commission retains jurisdiction over the instant petition.

In her verified answer, respondent Regina Reyes insists that jurisdiction over the matter of election and qualification falls within the HRET and no longer with the Commission. As basis, respondent invoked Section 17, Article VI of the 1987 Constitution, which provides:

"Section 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. xxx"

Reyes argues that once a proclamation has been made, Comelec’s jurisdiction is already lost and, thus, Comelec’s jurisdiction over contests relating to elections, returns, and qualifications ends, and that the HRET’s own jurisdiction begins. This, according to the respondent, is pursuant to the cases of Perez v. Comelec and Lazatin v. HRET.

Considering the facts and circumstances of the instant petition, we rule that the Commission retains jurisdiction over the instant petition until respondent assumes the office of representative in the House of Representatives which starts at noon of June 30, 2013.

The Perez case was promulgated by the Supreme Court way back on October 28, 1999. The latest ruling of the Supreme Court is the case of Jalosjos v. Comelec promulgated on June 26, 2013 which we quote:

“Here, however, the fact is that on election day of 2010 the Comelec En Banc had as yet to resolve Erasmo’s appeal from the Second Division’s dismissal of the disqualification case against Jalosjos. Thus, there then existed no final judgment deleting Jalosjos’ name from the list of candidates for the congressional seat he sought. The last standing official action in his case before election day was the ruling of the Comelec’s Second Division that allowed the name to stay on that list. Meantime, the Comelec En Banc did not issue any order suspending his proclamation pending its final resolution of his case. With the fact of his proclamation and assumption of office, any issue regarding his qualification for the same, like his alleged lack of the required residence, was solely for the HRET to consider and decide.” (Emphasis and underscoring supplied).

Jalosjos tells us that it is ASSUMPTION OF OFFICE that is the reckoning date when the jurisdiction of HRET begins. This is supported by the case of Vinzons-Chato v. Comelec, citing Aggabao v. Comelec and Guerrero v. Comelec, where it was held that:

“The Court has invariably held that once a winning candidate has been proclaimed, taken the oath, and assumed office as a Member of the House of Representatives, the Comelec’s jurisdiction over election contests relating to his election, returns and qualification ends, and the HRET’s own jurisdiction begins” (Emphasis and underscoring supplied).

Romualdez-Marcos v. Comelec elucidated that the HRET does not have jurisdiction over a candidate who is not a member of the House of Representatives to wit:

“As to the House of Representatives Electoral Tribunal’s supposed assumption of jurisdiction over the issue of petitioner’s qualifications after the May 8, 1995 elections, suffice it to say that HRET's jurisdiction as the sole judhe of all contests relating to the elections, returns and qualifications of members of Congress begins only after a candidate has become a member of the House of representatives. Petitioner not being a member of the House of Representatives, it is obvious that the HRET at this point has no jurisdiction over the question.”

Finally, in Dimaporo v. Comelec, the Supreme Court transferred the jurisdiction over the case to the HRET only after the candidate had been proclaimed, had taken his oath of office before the Speaker of the House and had assumed the duties of a Congressman on September 26, 2007, after the start of his term on June 30, 2007, to wit:

“On October 8, 2007, private respondent Belmonte filed his commitment in which he brought to Our attention that on September26, 2007, even before the issuance of the status quo ante order of the Court, he had already been proclaimed by the PBOC as the duly elected Member of the House of Representatives of the First Congressional District of Lanao del Norte. On that very same day he had taken his oath before Speaker of the House Jose de Venecia, Jr. and assumed his duties accordingly.

"In light of this development, jurisdiction over the case has already been transferred to the House of Representatives Electoral Tribunal (HRET).”

Respondent even admitted that this Commission has jurisdiction when she cited Lazatin v. HRET as supporting argument for her contention. The Supreme Court ruled therein that HRET’s jurisdiction starts only when the winning candidate assumes the duties of his office as Congressman, thus:

“The petition is impressed with merit because petitioner has been proclaimed winner of the Congressional elections in the first district of Pampanga, has taken his oath of office as such and assumed his duties as Congressman. For this Court to take cognizance of the electoral protest against him would be to usurp the functions of the House Electoral Tribunal.” (Emphasis and underscoring supplied.)

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