DAVID Q. SANDALO, PETITIONER, VS. COMMISSION ON ELECTIONS AND PACIFICO D. ALBURO, RESPONDENTS.

SEPARATE DISSENTING OPINION

TEEHANKEE, J.:

The majority decision wrongfully brands the opposition (NP)
winner petitioner David Q. Sandalo, of the mayoralty elec­tion on January 30,
1980 in the small town of Tubay, Agusan del Norte (the first local election
held under martial law since 1971), as “a political opportunist …. a
turncoat.”

Sandalo was duly proclaimed the duly elected mayor of Tubay on
January 31, 1980 with a decisive margin of 455 votes against his KBL opponent,
respondent Pacifico D. Alburo (2439 – 55% vs. 1,984 – 45%).

The Comelec had taken no action on the petition for disqua­lification
case for alleged turncoatism filed by the loser Alburo.  But on February 16, 1980 after the lapse of
the 10-day period for the loser to file an election protest, the Comelec issued
its Resolu­tion “setting aside all the effects of the proclamation of
Sandalo and ordering the canvassers who had finished their task on the day
after election day with Sandalo’s unquestioned proclamation “to proclaim
[defeated candidate] Alburo as the duly elected mayor.”

The Comelec resolution was based on the flimsiest of evi­dence
with Sandalo at the hearing emphatically denying that he ever signed the
certificate of affiliation with the KBL at the organiza­tion meeting of December
3, 1979 for he was then in Manila having a dental checkup and specifically
averred in his answer that “since he joined politics in 1951 when he ran
and won as the Municipal Mayor of Tubay, Agusan del Norte up to the time he won
in 1971 as member of the Provincial Board of Agusan del Norte he has been a
consistent member of the Nacionalista Party.” But the Comelec, as against
these unresolved conflicting issues of fact and without making any findings
of fact, resolved to summarily act and grant after the elections the moot
petition for disqualification of Alburo, and the ma­jority would now hold this
Comelec action as “binding and conclusive on this Court.”

Upon Sandalo’s filing on February 23, 1980 of the petition at
bar, a majority of the Court voted to issue a restraining order against
enforcement of the Comelec resolution,^[1]
with a member remarking then that “after the election, Comelec
should go easy about disqualifying the winner, which matter is within the CFI
juris­diction [involving a municipal office].”

At any rate, a majority of the Court has now voted to dis­miss
Sandalo’s petition and to lift the restraining order.  I am con­strained to dissent because:

1.   The majority decision is contrary, without
any explana­tion or distinction, to the Court’s unanimous doctrine laid down in
numerous decisions penned by the Chief Justice since Venezuela vs. Comelec^[2]
as far back as July 25, 1980 to Faderanga vs. Comelec^[3]
on June 26th of this year that “all such pre-proclamation controversies not
submitted to this Court or resolved before election day, January 30, 1980,
should be dismissed without prejudice to such ground being passed upon in a
proper election protest or quo warranto proceeding.”^[4]
The Court laid down this doctrine and rule of law precisely to rid its dockets
of all such pre-proclamation controversies and in the Chief Justice’s language
in Arcenas vs. Comelec^[5]
“ought to have fur­nished guidance,” but almost two years after the
elections here comes the decision at bar ignoring and disregarding the same,
contrary to the Court’s own injunction in the cited case that “to upset
the existing conditions x x x under the circumstances would not be conducive to
stability.  On the other hand, to follow
the authoritative pronounce­ment of this Court and thus put an end to the
pre-proclamation contro­versy, reserving the right to private respondents to
pursue the mat­ter in the appropriate election protest or quo warranto petition
as the case may be, would be more in keeping with the orderly ways of the
law.” Coincidentally, the President himself as far back as February 27,
1980 as reported in the metropolitan newspapers, apparently recognizing the
need of respecting the sovereign will of the electorate had directed the
withdrawal by KBL losers of all disqualification cases against the opposition
survivors, without prejudice to their filing an election pro­test – but
apparently to no avail.

2.   The disposition of the case at bar does not
jibe with the precedents of Gonzales vs. Comelec^[6]
and Fariñas vs. Comelec^[7]
decided only last July, wherein the Court unanimously set aside the Comelec
resolutions of disqualification of the winners. 
In Gonzales, which is fully applicable here, mutatis mutandis,
des­pite the winner Gonzales of the opposition Bicol Saro having right on election
day let his wife file her certificate of candidacy for the same post of mayor
of Polangui, Albay in substitution for himself because of his disqualification,
the Court ruled that “the release of the disqualification resolution on
the eve of the election was quite unfair and disconcerting to Gonzales.  For that reason, we cannot sustain the
view of the Solicitor General that, because Gonzales allowed his wife to
substitute for him, he is estopped to question the resolution disqualifying
him.  He was constrained to resort to
any expedient in order that the effort and money spent in the cam­paign would
not be wasted,” since Comelec “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.” In Fariñas,
the Court set aside the “midnight disqualification resolution
therein” because the Comelec hearing was as in the case at bar
“summary in character” and “due to the numerous pending
disqualification cases and the nearness of the election, the Comelec did
not have ample time and opportunity to receive evidence in this case and to
deliberate thereon.  Its abbreviated
resolution is an indication that the case had not been thoroughly
threshed out.”

3.   The majority decision without explanation nor
overruling the unquestioned doctrine in election cases that the
disqualification of the winner does not entitle the defeated candidate to claim
the contested seat has simply “upheld” the Comelec resolution
ordering the canvassing board to proclaim the loser Alburo as the “duly
elected mayor” when in fact Alburo was rejected and repudiated by the electorate.  This action violates the express
mandate of the 1980 local elec­tion law on succession that where the elected
mayor “fails to qualify … the vice mayor … shall assume the
office.”^[8]
It also disregards the unbroken line of jurisprudence which is the law of the
land since the 1912 case of Topacio vs. Paredes^[9]
that “the effect of a decision declaring a person ineligible to hold an
office is only that the election fails entirely,” that “the wreath of
victory cannot be transferred”^[10]
from the disqualified winner to the repudiated loser because the law then as
now “only authorizes a declaration of election in favor of the person who
has obtained a plurality of votes”^[11]
and “does not entitle the candidate receiving the next highest number of
votes to be declared elected.  In such
case, the electors have failed to make a choice and the election is a
nullity.”^[12]

4.   Petitioner complains with reason and
justification in his petition that “to allow private respondent to be
installed as mayor-elect despite the resounding rejection by the electorate in
the last election is tantamount to dis-enfranchising the whole electorate of
Tubay, Agusan del Norte, without any fault on their part.  This situation undermines and destroys the
essence of democracy.  It exalts legalism
at the expense of substantial justice and stifles and curtails the sovereign
will of the people to elect their own leaders. 
This simply amounts to a situation wherein it is not the will of the
people but the Comelec that elects the mayor.”^[13]

5.   The people’s will and undeniable right to
have officials of their unfettered choice should be respected, as stressed by
the now Chief Justice in Badelles vs. Cabili.^[14]
The Court has long consistently ruled that “after the termination of the
election, public interest must be made to prevail over that of the defeated
candidate.”^[15]
For brevity’s sake, I reproduce the citation of authorities on this point and
the other reasons and considerations extensively set forth in my separate
dissenting opinion in the Ticzon disqualifi­cation cases of San Pablo
City^[16]
which are equally applicable in the case at bar.

^[1]
The majority vote then for issuance of a restraining order was cast by
Fernando, C.J. and Teehankee, Barredo, Antonio, Fernandez, Abad Santos, De
Castro and Melencio Herrera, JJ. Aquino and Guerrero, JJ. voted against and
Concepcion Jr., J. reserved his vote.

^[2]
G.R. No. 53532.

^[3]
G.R. No. 55938.

^[4]
Aguinaldo vs. Comelec, G.R. No. 53953, Jan. 5, 1981.

^[5]
G.R. No. 54039, Nov. 28, 1980.

^[6]
G.R. No. 52789, Dec. 19, 1980, per Aquino, J.; emphasis supplied.

^[7]
G.R. No. 52431, July 30, 1981, per Aquino, J.; emphasis supplied.

^[8]
Sec. 8 of Batas Pambansa Blg. 51 provides:

“SEC.
8.  Succession to the office of the
Governor, City or Municipal Mayor.  –
In case of a permanent vacancy that arises when a governor, city or municipal
mayor refuses to assume office, fails to qualify, dies, is convicted by final
judgment of a crime involving moral turpitude, resigns, is permanently
incapacitated, or has been absent with­out authorization for more than three
(3) consecutive months, the vice-governor, city vice-mayor or muni­cipal
vice-mayor as the case may be, shall assume the office x x x.”

^[9]
23 Phil 238 (1912).

^[10]
Luison v. Garcia, 103 Phil 457 (1958).

^[11]
Vilar v. Paraiso, 96 Phil 664 (1955)

^[12]
Llamaso v. Ferrer, 84 Phil 490 (1949).

^[13]
At page 12 thereof.

^[14]
27 SCRA 121 (1969).

^[15]
De Guzman v. Board of Canvassers, 48 Phil 211 (1925), citing Lino Luna v.
Rodriguez, 39 Phil 208 (1918).

^[16]
Ticzon v. Comelec, G.R. Nos. 52451 and 52678, March 31, 1981.