ZACARIAS A. TICZON, PETITIONER, VS. COMMISSION ON ELECTIONS, RESPONDENT.

DISSENTING OPINION

MELENCIO-HERRERA, J.:

In the local elections held on January 30, 1980 in San Pablo,
Laguna, petitioner Zacarias A. Ticzon
and intervenor Cesar P. Dizon
(then incumbent Mayor) were the respective NP and KBL official candidates for
the position of City Mayor of San Pablo.

Prior to said elections, petitioner Ticzon
and intervenor Dizon were
respondents in cases for disqualification on the ground of poli­tical turncoatism before respondent COMELEC.  In PDC 235 entitled Cosico
vs. Ticzon, it was alleged that petitioner Ticzon did not resign from his former political party, the
Liberal Party, and became a member of the Nacionalista
Party only on December 31, 1979.  In PDC
166, entitled Armedilla vs. Dizon,
it was alleged that intervenor Dizon
was a member of the Nacionalista Party until he filed
his candidacy for City Mayor as the KBL candidate on January 3, 1980.

On January 31, 1980, intervenor Dizon filed a Petition with respondent COMELEC alleging
that prior to the elections many registered voters in the permanent list of
voters were not included in the certified list of voters prepared for each
voting center, so that thousands of registered voters were disenfranchised and
not able to vote on Election Day, and who, if able to vote, would mate­rially
alter the results of the election particularly with respect to the position of
City Mayor; that petitioner Ticzon had resorted to
wide­spread vote-buying and had employed strong-arm
tactics; and that the election returns appear to be tampered, altered or
falsified.  Intervenor
Dizon thus prayed to suspend ex-parte the canvassing of the election returns, more
particularly that of City Mayor, and to suspend ex-parte the proclamation of the candidate elect and/or to
annul any proclamation already made, more particularly that of City Mayor of
San Pablo.

Acting on the aforesaid Petition of intervenor
Dizon, respondent COMELEC issued a directive on February 1, 1980 addressed to the
Provincial Election Officer of Laguna, the pertinent portion of which reads as
follows:

“You are hereby directed as follows:

“1.  To stop the canvassing of the votes
for city positions from Mayor, vice?mayor and Member of Sangguniang Panglungsod in the
City of San Pablo and that no
canvass or proclamation shall he undertaken until further orders from the
Commission.

“x x x                                                 xxx                                                                   xxx”

On February
4, 1980, petitioner filed a Petition for Certiorari, Injunction with Preliminary
Injunction (G.R. No. L-52451) with this Court questioning the
aforequoted directive of respondent COMELEC as violative of
section 175 of the 1978 Election Code.

On February
5, 1980, we issued a
Restraining Order reading as follows:

“Acting on the petition, the court RESOLVED in the light of the provisions of the
Election Code and the applicable jurisprudence x x x to
restrain the Comelec from enforcing the said directive insofar as it suspended the canvassing, and to direct the city board of
canvassers to proceed with the canvas­sing of the election returns.”

After the issuance of
said Restraining Order, which was served on COMELEC on February 6, 1980, that poll body
became fully aware of the controversy
before this Court and of the Restraining Order issued herein.  Nonetheless, COMELEC continued to take steps the results of which tended to make the
pending case before this Court moot and academic.  Thus, on February 6, 1980, it replaced the City board of canvassers with a new board of canvassers composed of 3
COMELEC lawyers.  On February
7, 1980, it
transferred the place of canvass
from San Pablo to Manila.  On February
11, 1980, it ordered a re-canvass
of election returns previously canvassed
by the former Board of Canvassers and to
continue canvassing election returns not as yet canvassed.  On February
12, 1980, it
disqualified petitioner Zacarias A. Ticzon for turncoatism on the basis of pleadings and exhibits
and without a full-dress hearing,
considered the votes cast for him as stray votes, and directed the City
Board of Canvassers of San Pablo City to proclaim the remaining winning candidate.  On February 15, 1980, Dizon was proclaimed winner by the City Board of Canvassers with “no opponent.” And this,
notwithstanding the manifestation by Asst. Solicitor General Vicente Mendoza
at the hearing before this Court in the
afternoon of February 15, 1980, of the COMELEC officials assurance that
implementation of the Resolution disqualifying peti­tioner Ticzon
and directing the proclamation of the remaining candidate would be suspended
pending this Court’s action on his petition. 
The end result was that
the canvassing of the election returns ordered by this Court,
undoubtedly to include the votes of both contestants,
was completely thwarted.

I vote, therefore, to grant the Petitions, the actuations of the
COMELEC having been contrary to the spirit and intendment of our Restraining
Order of February 5, 1980.  The proclamation of Cesar P. Dizon as Mayor of San Pablo City should be set aside with
the elected Vice-Mayor assuming office in the meantime; a canvass of the votes
of both candidates should be held pursuant to the Restrain­ing Order of
this Court dated February 5, 1980; and the disqualification case against Ticzon should be remanded to the COMELEC for a full-dress
hearing, or that issue ventilated anew in the quo warranto
proceeding filed by Ticzon against Dizon with the COMELEC.

DISSENTING OPINION

TEEHANKEE, J.:

1. This is a sorry tale that will go into the record books as the
case where three (3) successive restraining orders issued unanimously
by the Supreme Court enjoining enforcement of an equal num­ber of
successive Comelec resolutions arbitrarily issued ex
parte after the elections (1) suspending
the canvass of the election returns of San Pablo City (to prevent the
proclamation of the winner); (2) replacing the original board of canvassers
with a new and more pliant board and transferring the venue of the canvassing to
Manila; and (3) disqualify­ing the winning mayoralty candidate Zacarias A. Ticzon for alleged turncoatism and directing the board to proclaim the loser
Cesar P. Dizon “as the remaining winning
candidate”^[1]
have been grossly disregarded and violated by the Comelec,
and yet the Supreme Court has dismally fail­ed (by a vote of seven [7]
members  against to four [4]
members for) to en­force its own restraining orders and compel
compliance therewith.

2. This case marks the nadir of the Comelec’s
credibility.  Mr. Justice Abad Santos’ separate dissent says it all: “This is
another instance where the Commission on Elections did not live up to the high
expectations of the people and of this Court. 
The vast power entrusted to the COMELEC by the Constitution and statutes
should have given it a sober sense of responsibility.  Instead it has even dealt unfairly with this
Court.  Add to this its flip-flopping
reso­lutions and we have a constitutional body whose credibility has been
seriously eroded.”

3. Before, the loser’s tactic was to “grab
proclamation at all costs and prolong the protest.” Now, the Comelec has refused to even count the votes of the winner
(in gross violation of the Court’s standing February 5, 1980 restraining order) and enabled
the loser to grab not only the proclamation but the election as
well with not even a right of protest by the winner.  The Comelec did
this by an arbitrary post-election disqualification of the winner as a
“turncoat” from the Liberal Party (which had boycotted
the elections as well as the pre­vious 1973 elections and was considered by the
Comelec itself as “in­existent“) to Nacionalista Party and ordering the proclamation of the
loser as “the remaining winning candidate” with “no opponent.”
There might as well have been no elections. 
In the words of the late Chief Justice Fred Ruiz Castro, the loser
“continues to fraudulently represent the people who had in
law and in fact duly elected someone else to represent them.”^[2]
Furthermore, the prevailing doctrine since the 1912 case of Topacio
vs. Paredes^[3]
that the repudiated loser who succeeds in disqualifying the winner is not
entitled to be proclaimed, much less to assume office, since he has not
received the majority of the votes cast in the elections as well as the
sovereign will of the San Pablo electorate have simply been disregarded and
swept aside without even a passing nod.

4. As early as one day after the elections on January 31,
1980, Dizon already exhibited the loser’s perennial
tantrums and filed his petition with the Comelec “for
suspension of the canvass and proclamation or for nullification of the
election with the usual cries of “disenfranchise­ment and widespread
vote-buying” notwithstanding the vast powers at his disposal as incumbent
KBL mayor and the utter lack of any authentic election day reports of
such alleged irregularities which the Comelec
certainly would have attended to, considering the alacrity with which the Comelec accommodated his every petition after the elections
to thwart the winner as this case shows. 
(See decision at pages 5-6).  The Comelec without the notice and hearing required by
Section 175 of the 1978 Election Code forthwith accommodated him in its
peremptory order of February 1, 1980 directing that “no canvass or
proclamation shall be undertaken until further orders” which the Court set
aside in February 5, 1980 restraining order ordering the board to proceed
with and terminate the canvassing – futilely, as it turned out now.  For where other agencies and subordinate
courts generally refrain, as matter of deference, from taking any action on
questions pending with this Court even where no restraining order is
issued by this Court, here in gross disregard of the two
restraining orders of February 5 and 14, 1980 and still the third
restraining order that was issued right after the Court’s hearing of February
15, 1980, as well as of the Solicitor General’s assurance given solemnly on its
behalf, the Comelec raced to beat the force
and effects of the said orders, and has gotten away with it, as well as beaten
the contempt charges filed against it and the canvassing board which the
plurality decision has just ignored.

5. At the same time, the Comelec
whimsically refused to disqualify the loser Dizon on
the Armedilla petition for “petitioner’s failure
to present sufficient evidence, ” when Dizon
(who was elected mayor as the official Nacionalista
Party candidate in the 1967 and 1971 elections but in the last 1980 elections
turned coat and ran as official KBL candidate) was patently guilty of turncoatism for changing his political party
affiliation during his term of office against the express
prohibition of Article XII C, Section 10 of the 1973 Constitution.^[4]
The plurality’s decision has disregarded their pledge during our deliberations of
applying the same measure of “turncoatism”
to Dizon and necessarily also disqualifying him.

6. What is worse, Comelec’s abrupt
disqualification of the winner Ticzon was against the
President’s own post-election order to “the lawyers of the KBL to withdraw
all disqualification charges to allow already proclaimed opposition
candidates involved in such cases to assume office without prejudice to filing
an election protest.”^[5]
Questioned about such order, Dizon’s counsel replied
that the order was just a newspaper order and they did not receive it.

7. The core issue at bar is the validity and fairness of the Comelec’s post-election disqualification of Ticzon as a turncoat for having run as an oppositionist
Liberal in 1971 and nine years later as an oppositionist Nacionalista in 1980 against the dominant KBL candi­date,
Dizon, who had been elected in both the 1967 and 1971
elections as the then dominant Nacionalista
official candidate.

(a) The said disqualification of Ticzon
should be dismissed out­right by this Court for lack of substantial
evidence (see my Memoran­dum to the Court of March 25, 1980, reproduced hereunder, at pages 4-5).  In Potencion
vs. Comelec^[6]
involving the governorship of the Province of Aurora, the Comelec,
as sustained in the comment filed by the Solicitor General on its behalf,
“dismissed the disqualification case against respondent for switching
from Liberal Party (under which he was elected) to the KBL on the ground
that ‘the Liberal Party may be deemed to have become inexistent as it did
not nominate candidates both in the elections of 1978 and 1980.'”
But the Comelec inconsistently flip-flopped
here and did not equally apply this reasoning and in the case of the winner Ticzon who became partyless and
switched from the “inexistent” Liberal Party not to the
dominant KBL (as the loser Dizon did,
switching from the former majority Nacionalista
Party under which he was elected) but to the opposition Nacionalista Party. 
This action of the Comelec violates the very
spirit of the cited cons­titutional prohibition against turn coatism, which is to curtail opportunism and desertion of
the opposition ranks;

(b) The Comelec’s disqualification of Ticzon likewise denied him “the rudimentary
requirements of fair play [which] demand that [he] be afforded ample
opportunity to prove” his defenses against the charge of turncoatism – to borrow the very phrase of Mr. Justice
Ramon C. Aquino for a unanimous Court in Gonzales
vs. Comelec.^[7]
In setting aside therein the Comelec disqualification
of the winner of the election for the mayoralty of Polangui,
Albay, and the proclama­tion of the loser (because
the winner’s votes were considered as stray votes and not counted, as in Ticzon’s case here), Mr. Justice Aquino
pointed out that he was denied procedural due process: “(T)he Comelec disqualified Gonzales without hearing his
evidence.  It denied his mo­tion for
reconsideration in a somewhat high-handed or cavalier man­ner.  It did not bother to resolve
the factual issues raised in the affidavits supporting his motion for
reconsideration.  There is no find­ing
as to when the KBL became a duly accredited political party.  Moreover, the release of the disqualification
resolution on the eve of the election was quite unfair and
disconcerting to Gonzales, ” – which con­siderations are fully
applicable to the present case; and worse, Ticzon
was disqualified 16 days after the election and on the eve
of his proclama­tion;

(c) The Comelec’s post-election
disqualification of the win­ner Ticzon offends all
notions of fair play and equal protection as well as of substantive due process
and transgresses the constitutional injunc­tion that all “bona fide
candidates shall be free from any form of harassment and
discrimination.”^[8]
Here, Ticzon’s case, like that of An­tonio O. Singco the opposition winner of the last mayoralty election
for Ginatilan, Cebu (whose
arbitrary post-election disqualification on February 26, 1980 by the Comelec was set aside by a unanimous Court in Singco vs. Comelec,^[9]) was
arbitrarily, whimsically and discrimina­torily plucked by the Comelec from hundreds of pending disqualification
cases in order to select the losers as the winners with “no
opponent” by disqualifying the elected winners and not
counting their votes as “stray votes”; and

(d) In Arcenas vs. Comelec,^[10]
the Chief Justice, speaking for a unanimous Court, essayed to write finis
to all such pending disqualification cases still being utilized to harass the
winners and clear the Court’s dockets by restating that “It is now the prevailing
doctrine that after an election duly held and a proclamation [of the
winner] thereafter made, a pre-proclamation controversy should no
longer be viable” and “resort [must] be had to the remedy
of an election protest or a quo warranto,
whichever is proper.” This doctrine has been affirmed and reaffirmed in
all subsequent cases, the latest being Agcaoili
vs. Santos and Comelec.^[11]
In this latest case, the Court thru the Chief Justice once again reiterated election
day, January 30, 1980, as the cut-off date and that disgualification cases which had not been
acted upon prior to that date by the Comelec
“should be dismissed without prejudice to such ground being passed
upon in a proper election protest or quo warranto
proceeding.” Inexplicably, this settled doctrine has not been
applied to the present case of Ticzon who should have
long been proclaimed the winner (since January 31st and at the latest in February
of last year pursuant to the Court’s three restraining orders) and assumed
his rightful office pursuant to the electorate’s verdict.

8. In Esquivel vs. Comelec,^[12]
a plurality of six members of the Court sanctioned the Comelec’s
belated unseating of petitioner as mayor of Palayan
City despite the lapse of almost two months since his assumption of office, on
the ground that the canvassing board which proclaimed him was “illegally
constituted” and “as such its acts are pa­tent nullities without
force and effect in law” because its chairman, the election registrar, was
not a lawyer as directed by section 11 of B. P. Blg.
52, although said board was constituted according to the Comelec’s
own guidelines, which imposed no such requirement.  Then all the more so, should the
unjustifiable act of the new canvassing board of proclaim­ing Dizon as the “remaining winning candidate” with
“no opponent” be deemed a “patent nullity without force and
effect in law” by virtue of the Court’s restraining orders of February 14
and 15, 1980 enjoining en­forcement of the Comelec
orders replacing the original board and ordering Dizon’s
“proclamation.”

9. The plurality decision’s assertion (at page-8) that “this
Court’s second restraining order of February 14, enjoining the canvass
by the newly constituted board of canvassers, was useless.  It was useless because of the Comelec’s prior resolution of February 12, disqualifying Ticzon and ordering the proclamation of Dizon.  By reason of Ticzon’s
disqualification, there was no need to canvass or determine the votes for him
as tallied in the election returns,”^[13]
is untenable, because: –

– The Court’s first restraining order of February 5th
directed the canvassing board to disregard the Comelec’s
suspension of the canvass and “to proceed with the canvassing” and
count, of course, the votes of both Ticzon and
Dizon, and the board acknowledged the same and
pledged compliance therewith in its February 7th telegram;

– This triggered the Comelec’s
arbitrary order replacing the original board and transferring the venue
to Manila, which was also enjoined by the Court’s second restraining
order of February 14th; and hence, the new board was “illegally
constituted” and its acts were “patent nullities” – in the
language of Esquivel, supra;

– This Court’s second restraining order of February 14th
can hardly be downgraded as “useless“. Ticzon’s 11th hour disqualification by the Comelec resolution dated February 12, 1980 but released
only on February 14, 1980 when the canvassing showed Ticzon with an insurmountable margin of 2,994
votes with only 62 more precincts to be tallied was another “patent
nullity” in gross violation of the Court’s first restraining
order, which ordered that the board and Comelec
canvass Ticzon’s votes, as well as of the
Court’s third restraining order of February 15th which expressly
enjoined enforcement of the Comelec’s 11th hour disqualification
of Ticzon;

– As admitted in the plurality decision, (at pages 7 and
8), the Court’s second restraining order restraining the canvass in Manila by
the new board “was [timely] served in (sic) the Comelec
at ten o’clock in the morning of February 15, 1980 when the recan­vass was about to be terminated. ” The excuse
that it took up to 4:30 p. m. that day for the Comelec
records section to send a copy of the restraining order to its Law Department,
which in turn took more than 24 hours until 5:30 p.m. of the next
day, February 16, to forward a copy to the Comelec
chairman, whereas Dizon had been proclaimed at past
6:00 p.m. of the preceding day, February 15, is of no
consequence, prescinding from the outrageous
incredibility of the excuse;

– For on that very afternoon of February 15th, the Court
was hearing Ticzon’s urgent petition for a
restraining order against his 11th hour disqualification (which he learned of
only on the preceding day) and then Assistant Solicitor General, now Court of
Appeals Justice, Vicente V. Mendoza in representation of the Comelec solemly
manifested in open court that he was assured by the Comelec
chairman and officials that pending the Court’s action on the petition
before it, they would not implement the questioned Comelec
order to proclaim Dizon as the only remaining
candidate.  Assistant Solicitor General
Mendoza was so visibly shocked when it turned out that as he gave his assurance
at the hearing, the new board was at that very hour rushing its proclamation
of Dizon, that at the subsequent hearing of February
26, 1980 to set aside Dizon’s proclamation and to
hold the Comelec in contempt, he candidly stated to
the Court that on his own, he was recommending to the Comelec
and to this Court the setting aside of Di­zon’s
proclamation.  Callous proof of the Comelec’s forfeiture of “a sober sense of
responsibility” is its obdurate failure to heed its own counsel’s
recommendation and set aside Dizon’s railroaded”
proclama­tion” against its chairman’s plighted word.

– No matter.  Prescinding from the nullity of said proclama­tion and the
brazenly oppressive and arbitrary action of the Comelec,
it lies within the inherent power of the Court to enforce its restraining order
against the parties who were racing to beat the order and to set aside
the “proclamation” and restore the status quo, as this Court
has done in many such other cases.

10. The plurality decision’s pronouncements to the effect that the
Comelec’s findings are sacrosanct and that
“there is no justifica­tion for this Court to interfere with the actions
taken by the Comelec” (at page 11, et seq) are an untenable abdication of the Court’s
consti­tutional power and duty of review over the Comelec^[14]
and have no justification in law and in fact.

In law: Ironically, the cited case of Vinzons14-a
manifests the Court’s reluctance to disturb the Comelec’s
rulings “on facts and matters of equity . . . . to assure
the sanctity of the ballot,” exercised freely by the voters as
“particles of sovereignty” – but has no applica­tion when the Comelec serves as the very instrument of oppression
to thwart the people’s will and impose on them the repudiated
loser as the “remaining winning candidate” with “no
opponent“.  When the Comelec makes the baseless finding in its disqualification
resolution that “the records do not disclose that [Ticzon] resigned his membership from the said Liberal
Party.  Neither was he expelled
from his party.  On the contrary the
affidavit of Ex-Vice Mayor Pedro Magcase shows ‘that Ticzon remained with the Liberal Party.’ All other
documentary evidences on record indicate his continuance as member in good
standing of the Li­beral Party, ” (at page 12, decision), such baseless
finding cannot be “binding and conclusive on this Court, ” as asserted
by the plurality decision (at page 13).  Contrary
to the Comelec’s incorrect statement, the documentary
evidence of record amply shows that both former Con­gressman Manuel
Concordia as LP chairman for the Laguna first con­gressional district and LP
president Gerardo Roxas had submitted sworn
statements that Ticzon had been expelled from
the Liberal Party for having run as a rebel Liberal candidate in the 1971
elections (resulting in the victory of the Nacionalista
Party candidate Dizon, now KBL, and the defeat of the
disgruntled official Liberal Party candidate, ex-vice mayor Pedro Magcase upon whose barren affidavit the Comelec
solely relied for its “finding” that “Ticzon
remained with the Liberal Party” which the Comelec
itself had held to be now “inexistent” since it had not
participated in the 1978 and 1980 elections. 
So how could Ticzon be a turncoat from an
“inexistent” Liberal Party?) The plurality deci­sion itself
does not even mention these vital documents that reveal the baselessness of the Comelec’s
“finding” which it pronounces as “binding and conclusive.”

In fact: As Mr. Justice Abad
Santos justly observed in his dissent in Omar vs. Comelec,^[15]
“(T)he proposition that this Court should sparingly use its power of
review over the COMELEC because it is an independent constitutional body is
correct but this is one case where we should firmly exercise our power because
of the flip-flopping resolutions of the Comelec.”
These “flip-flopping” resolutions have had to be “interfered
with” and stricken down by this Court in a far greater number
of decisions of this Court than at any other time, as listed in the footnote.^[16]
None of these cases approximates the brazenly oppressive and arbitrary actions
of the Comelec in this case.

11. I have always maintained that all pre-election cases seeking
to disqualify the winner simply on the ground of alleged turncoatism
should be ordered dismissed after the last January 30th elections,
subject to the filing of an appropriate quo warranto
action or election protest against the winner in the appropriate forum.

The people’s will and undeniable right to have officials of their
unfettered choice will thus be respected pending the final out­come of such
protest, which depends upon so many factual and other relevant considerations
as set forth hereinbelow. (See memoranda reproduced
hereunder)

In Venezuela vs. Comelec^[17]
(where the Court upheld the Comelec’s action in
refusing to disqualify the mayor-elect of Pozorrubio
for turncoatism, for having switched, like Dizon from the then majority NP under
which he was elected in 1971 to the now dominant KBL), I pointed
out in my separate concurrence that “Respondent Comelec
in its Comment of May 8, 1980 filed by Solicitor General Estelito
P. Mendoza takes the position that ‘(I)t is worth noting that the people of Pozorrubio, Pangasinan have
spoken and their choice to be their mayor is the private respondent.  The will of the electorate of Pozorrubio, Pangasinan should be respected.  In Canceran
v. Comelec, 107 Phil. 607, this Honorable Court
held that the courts must give the voice of the electorate efficacy and
not stifle or frustrate it.  Also of
particular relevance is the ruling of this Honorable Court in Lino Luna vs. Rodriguez, 29 Phil, 208, and De
Guzman vs. Board of Canvassers, 48 Phil. 211;

‘It has been announced in many decisions that the rules and
regulations for the conduct of elections are mandatory before the
election, but when it is sought to enforce them after the election, they
are held to be directory only, if that is possible especial­ly where, if
they are held to be mandatory, innocent voters will be deprived
of their votes without any fault on their part.  The various and numerous provisions of the
Election Law were adopted to assist the voters in their participation
in the affairs of government and not to defeat that object.'”

I concluded therein that “(I)t is to be devoutly wished that
the Comelec apply equally and consistently
this salutary position in all pend­ing pre-proclamation cases (many of which
are still pending in this Court involving on the whole opposition party winners
sought to be disqualified).”

12. The public interest demands the prompt proclamation and
assumption of office by the true and rightful winner of the
election and he and the sovereign will of the electorate may be thwarted if at
all – not in administrative and summary pre-proclamation
proceedings of the Comelec-but only after a full-dress
hearing in accordance with due process where the parties are
afforded full opportunity to present evidence relevant to the issue of
disqualification of the winner because of alleged turncoatism
and the verdict of the Comelec (for provincial and city
officials) or of the CFI (for municipal officials) shall have passed the final
action of this Court.

Pending such final action, the losing candidate repudiated by the
people (who would not be entitled to proclamation even if the win­ner
were to be disqualified for turncoatism, since he has
not received the required plurality of the votes cast in the election) should not
offend the sovereign will of the people who rejected him by assuming
office (as an aftermath of the Comelec’s arbitrary
disqualification of the winner) as the “remaining
winning candidate” with “no opponent.“

13. When one takes into account all the relevant issues on “turn­coatism” (see memoranda, infra, at pp.
20-26 hereof) and considers that by this Court’s own pronouncements in the Peralta
and Laban cases of 1978 that the KBL until the
sudden calling of the January 30, 1980 lo­cal elections (the first ever to be
held) was but an umbrella organiza­tion of all pre-martial law political
parties whose activities were all suspended during martial law, the “turncoatism” provision should in all fairness be
declared inoperative for the said 1980 elections in the same
manner that it was declared inoperative in the 1978, elections,
for it would have thereby disqualified all KBL candidates in the said
elections as turncoats for switching to the dominant KBL.

14. In the course of the long pendency of
these cases before the Court, I submitted two memoranda of March 25, and May 7,
1980 to the Court on the antecedents and issues of the cases at bar which
because tine constraints I can no longer re-write and therefore reproduce verbatim^[18] hereinbelow, in amplification of the foregoing considerations
for my dissent which were focused on the plurality decision’s rationale.

Memorandum on the overruling compelling
considerations for enforcing the Court’s restraining orders of February
5, 1980, February 14, 1980 and February 15 1980 and upholding
the Supreme Courts dignity and the force and effect of its orders
and processes in the Ticzon vs. Comelec cases, G. R. Nos. 52451 and 52678. (March 25, 1980)

I.   Antecedents. – Before,
the loser’s slogan was to “grab the proclamation and prolong
the protest.” Now, the loser with the active support of the Comelec, would not even count the votes of
the winner but would grab the proclamation and the election
by a post-election disqualification of the winner.  One would be hard put to find a series of brazenly
oppressive and arbitrary actions on the part of the Comelec
in pursuing such an unworthy purpose and nullifying the will of the elec­torate.

The petitioner, Zacarias A. Ticzon, came timely to this Court four (4) times for relief
from the oppressive and arbitrary orders of the Comelec
and three (3) times this Court issued separate restraining orders to stop the Comelec, which orders were nevertheless frustrated and
disregarded by the Comelec as may be seen from
the following sum­mary.

1. On February 1, 1980 the Comelec
Chairman without any given reason issued a directive to the provincial
election officer of Laguna “to stop the canvassing of the votes for
city positions from Ma­yor, Vice-Mayor and Members of Sangguniang
Panglungsod in the City of San Pablo and that no
canvass or proclamation shall be undertaken until further orders from this
Commission.” Upon petition of petitioner Ticzon
who attached thereto the quick-count certificate based on the du­plicate
originals of election returns of San Pablo City as submitted by the chairman of
the Citizens’ Election Committee showing that Ticzon
had won the mayoralty by a majority of 2,204 votes together with his
entire Nacionalista ticket, the Court issued its restraining
order of February 5, 1980 
“restraining the Comelec from enforcing
the said directive insofar as it suspended the canvassing” and
“directing the City Board of Canvassers to 
proceed with the canvassing of the election returns “

2. While the City Board of Canvassers in a telegram dated February
7, 1980 informed this Court that it would comply with said restraining order,
petitioner filed an urgent motion on February 8, 1980 complaining that the Comelec without any explanation changed the original
composition of the Board of Canvassers and designated in their stead three
(3) lawyers who arrived at San Pablo City to com­ply with still another
directive of the Comelec to bring the election
returns, and other records to Manila for the canvassing
notwithstanding that untoward  incident
had been reported nor any anomaly recorded during the canvassing by the
original Board of Canvasser that was peremptorily suspended by the Comelec.  The Court
issued its restraining order of February 14, 1980 enjoining the Comelec from enforcing (its) directive that the canvassing
of the election returns be conducted by a new Board of Canvassers in Manila at
the Comelec’s Election and Barangay
Affairs Department (instead of by the City Board of Canvassers in San Pablo
City ).  The second restraining order of
the Court was is­sued too late, six (6) days after the filing of the urgent
motion to stop the returns from being transferred to Manila.  The new Board of Canvassers escorted by
heavily armed troopers had lost no time in taking possession the ballot boxes
and transporting them in a closed van to which the as­signed NP
representative was denied access.

3. On February 15, 1980, Ticzon
had to file a still more urgent petition complaining that on the preceding day,
February 14, 1980, while the new Board of Canvassers was still in the
process of canvassing results from 213 voting centers out of a total of 275
which had been already tallied showing that Ticzon
was leading his opponent Cezar P. Dizon
(the incum­bent KBL mayor) by an insurmountable margin of 2,994 votes
(22, 871 votes for Ticzon and 19,877 votes for Dizon) with only 62 election returns not yet canvassed
which could not affect the result, the Comelec
released its resolution dated February 12,1980 granting a voter’s petition for
the disqualification of Ticzon for alleged turncoatism (while at the same time leaving unresolved
another voter’s petition for the disqualification of Dizon
who had been elected as mayor as a Nacionalista in
1971 and changed his political affiliation to KBL on January 3, 1980) and
resolved “not to give due course to the Certificate of Candidacy of
respondent Zacarias Africa Ticzon,
who is hereby ordered as disqualified, and hereby orders the City Board of
Canvassers of the city of San Pablo to consider all votes cast in favor of
respondent Ticzon as stray votes; and,
consequently, orders the City Board of Canvassers of San Pablo City to proclaim
the remaining winning candidate for the position of Mayor of San Pablo
City, Laguna.”

The Court held a hearing on the case in the afternoon of February
15, 1980 and Assistant Solicitor General Vicente V. Mendoza who represented
the Comelec formally manifested in open court
that he was given assurance by the Comelec
officials that they would not implement the ques­tioned resolution
(No. 985) pending the Court’s action on Ticzon’s
petition.  After the hearing, the
Court did issue its restraining order of February 15, 1980 restraining
the Comelec “from implementing the questioned
resolution ‘not to give due course to the certificate of candidacy of
respondent Zacarias Africa Ticzon‘
(Annex K of the Petition), the City Board of Canvassers thus being enjoined
from proclaiming the only other candidate for City Mayor of San Pablo City, the
canvassing of the election returns to continue with the votes
of both candidates counted.”

4. But Ticzon’s travails were
still far from over.  His complete votes
which did show him to be the clear and uncontested winner of the
elections remained uncounted and uncanvassed notwithstanding this
Court’s direct orders of February 6 and February 14, 1980 to the Comelec and to the Board of Canvassers to do so.  Worse, late on that very same afternoon
February 15, 1980, the new Board of Canvassers, in gross disregard
and defiance of this Court’s restraining order of February 14, 1980
enjoining the enforcement of the Comelec
“directive that the canvass of the election returns be conducted by a new
Board of Canvassers in Manila” on the pretext that it had not been
advised of the Comelec’s commitment
that it would not implement its questioned resolution disqualifying Ticzon and directing the canvassing board to proclaim the
loser and repudiated candidate Dizon as “the
remaining winning candidate” (notwithstand­ing that it was in the very
premises of the Comelec in Manila), neverthe­less
issued its certificate of canvass and proclamation proclaiming “Cezar P.  Dizon (no opponent)” as having received the plurality
of the votes legally cast for the office of mayor, after discarding all the
votes of Ticzon as stray votes.  (In the same proclamation certificate, the
entire Nacionalista ticket carried by Ticzon was perforce proclaimed.) Once again for the
fourth time, Ticzon appealed to this Court for
relief through his urgent petition and contempt petition, both dated February
18, 1980, and his urgent motion of February 22, 1980 and urgent petition of
March 1, 1980, all asking the Court to maintain the status quo and as
prayed for in the ur­gent petition of February 18, 1980 to set aside the
proclamation of Dizon if he would have already been
proclaimed by the Board of Canvassers as of the time of the issuance of this
Court’s restraining order of February 15, 1980 after the hearing on that day as
originally prayed for by Ticzon both in his petition
of February 15, 1980 and at the said hearing.

Ticzon’s urgent petitions
of February 18 and 22, 1980 were set for hearing and heard by us in the
afternoon of February 26.  At the
hearing, Assistant Solicitor General Mendoza was frank enough to state on
his own that he recommended to the Comelec and to
this Court the setting aside of the proclamation of Dizon
and that upon proper petition all the NP’s or Liberals who turned KBL at the
last elections should also be disqualified on the charge of turncoatism.  At the end of the hear­ing, there was a clear
consensus to apply the same formula applied in the Pimentel
case of Cagayan de Oro
City, i.e., annul the proclamation of Dizon and
complete the canvassing and proclaim the winning candidate (Ticzon)
and remand the case of disqualification to the Comelec
for a full-dress hearing thereon with the winning candidate Ticzon
being proclaimed and allowed to assume office if the question of his
disqualification has not been resolved by the Comelec
on March 3 (the date set by law for assumption of office).  The issuance of the formal resolution to this
effect, however, was deferred to February
28, 1980 in deference to some absent members and has since bogged
down and been left un­resolved up to now.  Justice Vicente Abad
Santos who was scheduled to leave on February 28, 1980 in fact left his written vote of
February 27 with the Chief Justice stating the following:

“I have to refer to the cases of Zacarias
A. Ticzon vs. COMELEC, et al. (G. R. Nos. 52451 and
52678).  Since I will be abroad in the
service of our country, I beg leave to set forth my position in respect of
several issues, namely:

“1.  I am for setting aside the proclamation
of Ce­sar P. Dizon as Mayor of San Pablo City.

“2. I am for the continuance of the canvass
of all election returns for the office of Mayor of San Pablo City.  In the canvass the votes cast in favor of Zacarias A. Ticzon should be
counted and should not be considered as stray votes.

“3. If Ticzon
turns out to have the plurality of votes and the question of his
disqualification is not resolved by the COMELEC in a full dress hearing be­fore
March 3, 1980, he should be proclaimed as the duly elected Mayor of San
Pablo City and allowed to assume office.

“4.  The proclamation
and assumption of office by Ticzon will be without
prejudice to any appropriate proceeding against him.

“My position in the Ticzon case
applies to all other similar cases pending before us, and I request that you
certify my vote therein accordingly.”

Even if we were to apply solely the criterion of substantial
evidence, I hold that Ticzon is entitled to an
outright dismissal by this Court of the disqualification case against
him.  The Comelec
in its belated re­solution of disqualification of February 12, 1980 disqualified Ticzon
on the following rationale:

“x x x It
appears from the pleadings and ex­hibits that on December 28, 1979
respondent filed his certificate of candidacy as an Independent (Exhibit
‘B’).  That on December 31, 1979,
he withdrew his Certificate of Candidacy (Exhibit ‘C’) and on January 7, 1980,
he filed his second certificate of candidacy as a member of the Nacionalista Party (Exhibit ‘D’).  It appears, however, that on November 8, 1971, he filed his
certificate of can­didacy for Mayor in San Pablo
City, as a member of the Liberal
Party (Exhibit ‘A’).  The records do
not disclose that he resigned his membership from the said Liberal
Party.  Neither was he expelled
from his party.  On the contrary the affidavit
of Ex-Vice Mayor Pedro Magcase shows respondent
remained with the Liberal Party.  All
other documentary evidence on record indicate his con­tinuance as member
of good standing of the Liberal Party.”

But the Comelec’s
statement was far from fair nor complete.  It failed to mention the evidence of
record that Ticzon had run as a rebel Liberal
candidate in 1971 for the same office of mayor by virtue of which he was expelled
from the Liberal Party as attested in a verified statement of former
Congressman Manuel Concordia then Liberal Party district chair­man
for the Laguna first congressional district and in the sworn certificate of
Sen. Gerardo Roxas, president of the Liberal
Party, confirming such expulsion.  It failed to mention further that it had failed
to act on the pending petition for disqualification against Dizon for being an NP turncoat who changed his party
affiliation to KBL only upon filing of his certificate of candidacy on January 3, 1980.  The Solicitor General’s answer to the
petition assailing the questioned disqualification resolution is a bit more
candid, as follows:

“x x x
Even if, as argued, Comelec should not have relied on
this evidence alone but should, likewise, consider the affidavit of Manuel Concordia,
the contents of which are certified to by Gerardo Roxas,
the result would substantially be the same. 
The two affidavits would merely offset and neutralize each
other which would leave the following undisputed facts: that petitioner was
a Liberal in 1971 and that on January
7, 1980 he filed his certificate of candidacy as a Nacionalista candidate.”

The undisputed facts that remain after
mutual neutralizing or offsetting of the contradictory affidavits as stated by
the Solicitor General should be that Ticzon was a
Liberal in 1971 and that on January 7,
1980 or 9 years later he filed his certificate of candidacy
as a Nacionalista candi­date after having filed an
earlier certificate of candidacy as an indepen­dent.  This bare evidence certainly cannot
constitute in any language substantial evidence that would warrant his
disqualification for turncoatism.  On the contrary, it amply shows that he had long
left his party affiliation of a Liberal which incidentally was not
taking part in the elections since it had boycotted the same as well
as the 1978 Interim Batasang Pambansa
elections.

Finally, the possible argument that may be raised that these pro­ceedings
have become moot since Dizon has already been
proclaimed and assumed office is of no consequence.  We have already issued a good
num­ber of restraining orders setting aside such assumption office pending
our determination of the cases before us as in the cases of Renato Reyes, Yason et al.  This is but in accordance with settled
precedents such as the resolution that we issued on December 10, 1973 in
L-37384, Villegas vs. Salvador, wherein “upon motion of petitioner,
the Court RESOLVED to clarify the writ of preliminary injunction issued on
October 19, 1973, enjoining the respondent judge from enforcing his decision
dated June 15, 1973 in Civil Case No. C-2261 and private respondent Domingo de
Jesus from continuing further in exercising the office as councilor of Malabon, Rizal, to the effect
that said writ of preliminary injunction affirms the right of and authorizes
petitioner Villegas to assume and exercise the office of councilor of Malabon, Rizal, until further
orders, pursuant to Section 218 of Republic Act No. 6388, otherwise known as
the Election Code of 1971.” The Court’s authority to uphold its
restraining orders or injunctions so as to restore matters to the status
quo in cases where the adverse party has beaten the injunction or
restraining order has consist­ently been affirmed by us as in Banzon vs. Cruz (45 SCRA 506), where we
reaffirmed that “the Court does not look with favor upon parties
‘racing to beat an injunction or restraining order‘ which they have reason
to believe might be forthcoming from the Court by virtue of the filing
and pendency of the appropriate petition therefor.  Where the
restraining or­der or preliminary injunction are found to have been properly
issued, as in the case at bar, mandatory writs shall be issued by the
Court to res­tore matters to the status quo ante.”

II. Disqualification cases. – All such pre-election cases
seeking to disqualify the winner on the ground of turncoatism
should be dismissed subject to the filing of an appropriate quo warranto action or election protest against the winner
in the appropriate forum.  I believe that
this is the only practical course for the Court to follow (as indicated by
Justice Vicente Abad Santos in his vote) if we are to
get on with the Court’s business in the other equally important cases
that confront us and if we are to remove the spectacle where two months
after the elections of January 30th the real winners in some localities
are still unproclaimed or have not yet assumed
office.  The President seems to
share this view, having been reported in the February 27, 1980 newspapers to have “ordered the
lawyers of the KBL to withdraw all disqualification charges to allow
already proclaimed opposition candidates involved in such cases to assume
office.  Even with the withdrawal of
these cases, the KBL lawyers can still reserve the right to file an election
protest, the President said.  The
President noted the numerous disqualifacation
cases filed by the KBL against some winning opposition candidates.”
This position is based on a good number of compelling considerations which we
may in the main briefly summarize, as follows:

1. The people’s will and undeniable right to have
officials of their unfettered choice should be respected in the
meantime and innocent voters should not be deprived of their
votes without any fault on their part. 
What I said in the Pimentel case applies to all other cases mutatis
mutandis, as follows:

“As the Court has consistently held in an unbroken line of
cases, ‘after the termination of the election, public interest
must be made to prevail over that of the defeated candidate‘ (De Guzman vs.
Board of Canvassers, 48 Phil 211 [1925], citing Lino
Luna vs. Rodriguez, 39 Phil 208 [1918]. 
As stressed by the now Chief Justice in Badelles
vs. Cabili (27 SCRA 121 [1969], ‘it is [the peo­ple’s]
undeniable right to have officials of their unfettered choice.’ Thus, we have
invariably held that the will of the electorate should ever be respected,
not defeated or frustrated by material defects in the winning
candidates certificate of candidacy (including one not being a registered
elector in the very municipality where he was nevertheless
elected president of Meycauayan, Yra vs. Abaño, 52 Phil 380 [1928]),
which while mandatory before the elections (and would therefore render
null and void the certificate of candidacy) were held to be directory only
after the election, as otherwise ‘innocent voters we deprived of their
votes without any fault on their part.’ (Lino
Luna, supra; also Canceran vs. Comelec, 107 Phil 607 [1960], Corocoro
vs. Bascara, 9 SCRA 522 [1963], Pungutan
vs. Abubakar, 43 SCRA 11 [1972]; and Lacson, Jr. vs. Posadas, 72 SCRA
170 [1976]).

“Consistently with the above-cited jurisprudence, and with the
Court’s now setting aside the Comelec summary
resolution of January 28, 1980 disqualifying Pimentel by not giving due course
to his certificate of candidacy for al­leged turncoatism
(when he has always been identified with the oppositionist cause and has now
been elected as such but which was restrained in our Order of January 29, 1980,
the summary case in the Comelec has now become
functus oficio,
with the electorate having been allowed to express their sovereign will and
clear choice of Pimentel at the elections (instead of what would have been
a non-election where the electorate could not even vote yes or no
for his defeated opponent who would have been the remaining unopposed
candidate).  Now that Pimentel has
been over whelmingly elected, the only course left is
to file an election contest under section 189 of the 1978 Election Code.”

2. Equally important under the prevailing doctrine of Topacio vs. Paredes
(23 Phil 238), the repudiated candidate and loser in the election who succeeds
in disqualifying the winner is not entitled to be proclaimed
much less to assume office, since he has not received the
plurality of the votes cast in the elections. If during the pendency
of an action for disqualification, no one qualifies for the questioned position
(of mayor in the Ticzon case), under the law it is
the duly proclaimed and elected vice mayor who assumes the contested office
(section 8, Batas Pambansa Blg.
51).

3. The winning candidate especially after he has received
the approbation of the electorate is entitled to due process and a full-dress
hearing so that the circumstances relied upon to sustain the charge of
alleged turncoatism may be duly threshed out with
confrontation and ex­amination of witnesses and his good faith or bad
faith, as the case may be, may be duly determined.  Ticzon
also has ground to complain as he has in his urgent motion of March 1, 1980
where unlike other candidates in the same situation as his facing
charges of disqualification for turn­coatism such as
Pimentel of Cagayan de Oro
City and Nepomuceno in Sta. Rosa, Laguna, these
candidates notwithstanding their previous dis­qualification by the Comelec were nevertheless proclaimed as winning
candidates by order of the Comelec itself.

4. There are a number of vital facts that have to be
established and duly taken into consideration in a full-dress hearing, among
them the lack of fair notice and suddenness with which the January 30th
elections were called when as late as November 21, 1979 it was being reported
by the newspapers that local elections have been set for December 7, 19801
with the President having been reported on November 22, 1979 as notifying the Comelec that “local elections will be held either
before the end of next year 1980 or in early 19812
until suddenly on December 16, 1979 it was reported that the President
asked the Batasang Pambansa
to set the local elections for January 30th which was so fixed by the Batasang Pambansa.  On January 4, 1980, the deadline for filing
of certificates of candidacy, “the President was reported to ‘uphold NP’s
right to field candidates’ stating that ‘the po­licy should be to allow
fair, free and open fight among the aspirants from the gubernatorial to the
sanggunian position’ and that ‘it is obvious, the
President told newsmen, that in most places, the fight will be between the KBL
and the NP.  ‘That would make the NP the
opposition in the coming elections, ‘ the President continued.”3

It is important that all the
circumstances and facts be duly brought out because even in the cases of those
who were seeking an official nomination and affiliation as KBL candidates in
the light of the undisputed situation that during this entire period of martial
law – going into the 8th year now – the activities of political parties had
been suspended and there was only one dominant organization serving as
an umbrella organization which is the KBL which admittedly was
organized as a political party only in December 1979 after the calling of the
elections and that all local offi­cials held office at the pleasure of the
President and were exhorted to support the KBL organization and could be
removed even before the elec­tions as in fact a number of them were so removed
as in the case of the Mandaluyong mayor.

The question of fairness and equal protection of the laws
also comes into serious consideration when we take the case of Assemblyman Edelmiro Amante whose
contention before this Court was that he has always been a Nacionalista
and his disqualification by the Comelec from
running for the office of governor of his home province of Agustin del Sur on the ground that he had been elected as a KBL
assemblyman was set aside by this Court and yet after the elections he
and a number of others who supported or ran as Nacionalista
candidates had been accepted back into the KBL ranks in the Batasan
Pambansa.

5. Some of the KBL candidates with pending cases of disqualification
against them invoke P.D. 1667 decreed January 26, 1980 amending section 1 of P.
D. 1661 by inserting the proviso “that a person who participated as an
officer in the campaign of a political party, group aggrupation
in the immediately preceding elections shall be deemed a member of such party
as of the date of the political campaign for pur­poses of nomination as
official candidate of such party in succeeding elec­tions. ” The Comelec in the cases resolved by it in favor of the KBL
candidates has simply dismissed the petitions of turncoatism
“for lack of sufficient basis” without invoking P. D. 1667.  Indeed, this P. D. has been assailed for
having been tailored to rescue the KBL candidates from the clear charges of turncoatism against them and for denying equal protection
of the laws and for violating the cited constitetional
in­junction that all “bonafide candidates
shall be free from any form of harassment and discrimination.”

6. The cited prohibition against change of political party af­filiation
must be so construed so as not to collide with the right gua­ranteed by the
Constitution such as the right of free association.  As stated by the Court itself in the Peralta
case, “a narrow_ construction may discourage the robust exercise
of the right of association guaranteed by the Bill of Rights,” and
“(I)t is, therefore, necessary at this stage to encourage the
emergence or growth of political parties that will truly reflect the opinions
and aspirations of our people.  The right
of individuals to form associations as guaranteed by the fundamental law, to
includes the freedom to associate or refrain from association.  In ac­cord with this constitutional precept,
it is-recognized that no man is compelled by law to become a member
of a political party, or, after having become such, to remain a
member.”

7. The question as to whether P.D. 1661 which partook of the
nature of an implementing legislation and outlawing guest candidacy as
published in the newspapers only on Jan. 5, 1980 after the expira­tion of the
Jan. 4, 1980 deadline for filing of certificates of candidacy, could not be
justly relied upon to disqualify candidates who were not aware of its
provisions since it had not yet been promulgated much less published as of the
time they filed their certificates of candidacy; that the P.D. is
unquestionably penal in nature and imposes penalties for violators and
therefore could not be made to retroact without transgressing the ex post
facto provisions of the Bill of Rights; and those questions of substantive
due process and the application of the constitutional mandate in Art. XII-C,
section 9 (1) that “bona fide candidates for any public office shall be
free from any form of harassment and discrimination” and the question
of real import and meaning of turncoatism such as
whether one who after a gap of 9 years of no contested elections runs as an
oppo­sitionist as against the overwhelming power and resources
of the dominant party or organization can genuinely be denounced as a
turncoat following the spirit and not the mere letter of the Constitution and
of the law, are all issues of great importance and significance that have
to be addressed by this Court only after the affected party shall have been
given in the first instance a full dress hearing by this Court and
resolved only after the fullest deliberations.

Letter-memo of

May 7, 1980

“To my esteemed colleagues:

In connection with our scheduled deliberation to­morrow on
disqualification cases, particularly the Tic­zon
vs. Comelec cases involving the mayoralty of San
Pablo City, where the repudiated candidate Cesar P. Dizon
continues (although we are now into the fourth month after the January 30th
elections) to sit as mayor due to the Court’s failure up to now to enforce its
last restraining order of February 15, 1980 against the post election
disqualification of Ticzon and proclamation of
the repudiated candidate, theretofore incumbent mayor Dizon
(notwithstanding the candid recommendation of Assistant Solicitor
General Vicente Mendoza, who had been assured by Comelec
that they would respect the Court’s restraining order), I am submitting the
following con­siderations supplementing my original memorandum of March 25,
1980 which was distributed to you on the same date (and copy whereof is hereto
attached for your ready reading/reference):-

1.  I submit for your serious consideration the
vote which our colleague Justice Antonio ^[19]
left on April 18, 1980 with
the Chief Justice as follows:

‘MEMORANDUM for:

Hon. Enrique M. Fernando

Chief Justice

O f f i c e

Re:  
The cases of Zacarias A. Ticzon

vs. COMELEC, et
al. – G. R. Nos.

52451 and 52678

1.  I am for setting aside the proclamation
of Cesar P. Dizon as Mayor of San Pablo City;

2.  I am for the definite resolution of
the question of disqualification after a full dress hearing in
accordance with due process; and

3.  Pending the resolution of that
question the Vice Mayor who has been elected and proclaimed should
act as Mayor.

(Sgd. ) FELIX Q. ANTONIO

Associate Justice’

2.  The very least that should be done is enforce
now the Court’s last restraining order (and maintain the integrity of the
Court’s orders and the respect owing thereto) and set aside the proclamation
of Dizon, since as the repudiated loser,
he has no right to claim the mayoralty as an also-ran even though
Ticzon may ultimately be declared dis­qualified.

3.  If the Court is to be consistent with
its ruling in Pimentel and other cases, Ticzon
should in the meantime be duly proclaimed and allowed to assume office as
mayor, with­out prejudice to holding ‘a full dress hearing’ on his alleged
disqualification, in accordance with the vote of Justice Abad
Santos.  (See pp. 3-4 of my March 25th
Memorandum.)

4.  The question of the disqualification of Ticzon (and of other winning candidates as well) should
be threshed out only ‘after a full dress hearing in accordance with due
pro­cess, ‘ as urged by Justice Antonio in his above vote.

5.  Such a full dress hearing is necessary
and impera­tive.  In addition to the
compelling questions of due process, lack of fair notice and suddenness
of the call for the Jan. 30th elections, the equally important constitutional
right of free association, the ex post facto nature of P. D. 1661
published only after the January 4, 1980 deadline (for filing of certi­ficates
of candidacy), it must be borne in mind that the Court has up to now never
squarely addressed the question that the KBL became a political party only in late
December, 1979 after the calling of the Jan. 30th elections.

Before then, by the Court’s own pronouncements in the
Peralta and  Laban
cases of 1978, the dominant KBL was not a political party but an
umbrella organization of all pre-martial law political parties.  So, the jockeying of prospec­tive candidates
like Assemblyman Amante for a place in the KBL ticket
(whom we did not disqualify, unlike Gabatan
and Evasco) could not be deemed as opportunism.  Neither could their going their own way with
the NP as an opposition party (as expressly recognized by the President) be
termed as turncoatism.  (Assemblyman Amante,
after running as NP candidate is back with the KBL after his defeat.)

6.  The Court must have the full big picture
before it can disqualify any candidate for alleged turncoatism.  (For example, in the face of the KBL having
become a political party only in late December, 1979, then Dizon,
who was elected mayor in 1971 as an NP, should be the one disqualified
for turncoatism for having joined the KBL.) The
Court’s minute resolutions in the Gabatan and Evasco cases upholding their disqualification
on alleged substantial evidence are not precedents, for the facts of the KBL
having become a party only in December, 1979 and the many issues of substantive
due process and fair play, etc. were never dealt with in those cases.

7.  It is only fair and just that the Court
remand or turn over all such disqualification cases for a full dress hearing
and that the winners be allowed meanwhile to assume their offices.  The sovereign will of the electorate
cannot be lightly treated or cavalierly disregarded by the Court.

Thank you.”

–        –           –

Upon the final voting on the cases last month, I understood that
even though Dizon’s proclamation would stand, by
virtue of the plurality of seven votes in his favor, Ticzon
would be reserved the right of protest and the dismissal of Ticzon’s
petitions would be without prejudice to his pursuing the pending election
protest against Dizon (which he had filed ad cautelam with the Comelec in
February, 1980, expressly subject to the outcome of the cases at bar),
consistently with the Court’s reservation in all other cases.  The plurality deci­sion’s action now
upholding Ticzon’s disqualification on the bare pro­nouncement
that the Comelec’s finding of turncoatism
against him “is not a whimsical and capricious finding” and “is
binding and con­clusive on this Court” (at pages 12-13, decision), has regretably and wrongfully foreclosed totally and shut out
any right of protest or vindi­cation on Ticzon’s
part.

I vote accordingly to grant the petitions at bar, specifically
(a) to set aside the proclamation of Dizon; and (b)
to set aside the Comelec resolution disqualifying Ticzon and to direct the original canvassing board to
forthwith reconvene and complete the canvass and proclaim Ticzon
as the winning candidate, so that he may assume his rightful of­fice of Mayor
of San Pablo City without further delay; and (c) therewith to declare moot the Armedilla petition (G. R. 53393) to declare Dizon disqualified as a turncoat for having changed his
political party affiliation during his term of office.

^[1]
At the time of the 11th hour issuance of this resolution, the canvassing board
had canvassed the returns from 213 out of 275 voting centers and Ticzon had established an insurmountable lead of 2,994
(22, 871 against 19,877 for Dizon) votes with only 62
returns not yet canvassed.  The Ministry
of Education and Culture quick count based on duplicate originals of the
election returns from all voting centers showed Ticzon
the winner over Dizon by 2,204 (30,178 vs.
27,974 for Dizon) votes (Annex A of petition in G.R. No.
52451).  The proclamation of Dizon with “(No opponent)” listed him with
28,119 votes (1,959 short of Ticzon’s 30,178
votes, which the Comelec arbitrarily ordered to be
considered as “stray votes”).  Ticzon’s complete victory over Dizon
is reflected by the fact that Ticzon’s entire
ticket for vice mayor and the Sangguniang Bayan of San Pablo City, whom the Comelec
could not dis­qualify, swept the elections with the Ticzon’s
vice-mayoralty teammate Jimmy Gonzales posting a 10,757 vote-margin over his
opponent (33,.128 vs.. 22, 371) and the two SB top winners garnering
more votes than Dizon, Virginia B. Estrada with
29,889 and Reynato A, Estrellado
with 29,448 (Rollo in G.R. 52678, at pages 49
and 50).

^[2]
Chief Justice Castro’s dissent in Aratuc vs. Comelec, 88 SCRA 251, 287 (1979); emphasis supplied.

^[3]
23 Phil 238.

^[4]
The cited constitutional prohibition reads:

“SEC. 10. No elective
public officer may change his political party affiliation during
his term of office, and no candidate for any elective public office may
change his political affiliation within six months immediately preceding or
following an election.”

This Court has held that the term
of office of the elected local officials in 1971 was the same term, (not
a new one) converted beyond the original 4 years to an indefinite
term to be held by the incumbent “until otherwise provided by law or
decreed by the incumbent President” [Paredes vs.
Men Abad, ’56 SCRA 522] – so there is no question
that the constitutional prohibition against change of political affiliation by
an elective official during his term absolutely applied to Dizon.

^[5]
Reported in Metropolitan papers of February
27, 1980.

^[6]
G.R. No. 52527, September 4, 1980.

^[7]
G.R. No. 52789, December 19, 1980.

^[8]
Article XII C, section 9, 1973 Constitution.

^[9]
G.R. No. 52830, Nov. 28, 1980,
with Aquino, J. taking no part.

^[10]
G.R. No. 54039, Nov. 28, 1980,
with Aquino, J. taking no part.

^[11]
G.R. No. 52791, February 26, 1981.

^[12]
G.R. Nos. 53416 & 53475, October
14, 1980 and Resolution of November
6, 1980. See dissenting opinion of writer.

^[13]
Emphasis copied

^[14]
Article XII C, section 11, 1973 Constitution.

14-a 73 Phil. 247.

^[15]
G.R. No. 53962, February 3,, 1981;
see also writer’s dissent.

^[16]
A partial list of eleven (11) decisions of this Court setting aside the Comelec’s resolutions as issued with grave abuse of
discretion:

^[17]
G. R. 53532, July 25, 1980.

^[18] With
some minor revisions for accuracy’s sake.

1 Times-Journal issue of Nov. 16, 1979 and Bulletin Today issue of Nov. 21, 1979.

2 Bulletin Today issue of Nov. 22, 1979.

3 Daily Express issue of Jan. 4, 1980.

^[19]
Justice Antonio retired from the Court on his 70th birthday last year on May 18, 1980.