Kare vs COMELEC
G.R. No.157526-7/ April 28 2004/ Panganiban, J./LOCGOV- ISSUES & RATIO.
Disqualifications/JMQAquino
NATURE Petition for Certiorari
PETITIONERS (GR no 157526) Emiliana Kare; (GR 157527)
Salvador K. Moll
RESPONDENTS COMELEC
SUMMARY Moll and Ceriola were candidates for mayor. Kare was the
elected Vice Mayor. Ceriola had Moll disqualified and Comelec held the
former to be the rightful winner of the elections after disqualifying the
latter on the ground of final conviction of a crime with imprisonment of
more than 1 year. Moll argues that the judgment wasnt final yet since he
filed a MR. Court said that his MR didnt suspend the period of appeal since
it wasnt directed against the judgment of conviction. This being the case,
he was disqualified properly. When a mayoral candidate who gathered the
highest number of votes is disqualified after the elections held, a
permanent vacancy is created, and the vice mayor succeeds to the
position.
FACTS
Moll and Ceriola were candidates for mayor of the Municipality of Malinao
Albay (May 14, 2001 Elections). Moll won and Ceriola was the 2nd placer
(vote difference: 987). Kare was the elected vice mayor of the said
election.
May 17 2001: Ceriola filed a Petition to Confirm the Disqualification and/or
Ineligibility of Moll to Run for Any Elective Position on the ground that
Moll had been sentenced to 6 mos of arresto mayor to 1 year and 9 mos
of prision correccional for Usurpation of Authority or Official functions
(RPC 177)
Comelec 1st Div dismissed said petition
On reconsideration, COMELEC En Banc issued Mar 19 2003 Resolution
which affirmed Molls disqualification (as recommended by the
provincial election supervisor of Albay) and proclaimed Ceriola as the
mayor-elect. COMELEC ruled that:
o Moll had been disqualified from being a mayoral candidae
in the 2001 local election and that his subsequent
proclamation as mayor was void ab initio. He was thus
disqualified from holding office
o TCs final judgment disqualified Moll from filing his
certificate of candidacy and continued to disqualify him
from holding office. Accordingly, votes case in his favor
were stray or invalid votes, and Ceriola was adjudged the
winner.
Before Ceriolas actual proclamation, Kare filed a petition before the SC for
a Status Quo order, which was granted.
GR 157526: Kare seeks the nullification of the Mar 19 resolution wrt Ceriola
being held as winner.
GR 157527: Moll wants to annul the entire resolution. Cases were
consolidated.
1. Should Moll be disqualified from running/holding the
position of mayor? YES
Moll argues that he cannot be disqualified from running for mayor since his
judgment of conviction (the basis of his disqualification) has allegedly not
attained finality. While he did not appeal the said judgment (promulgated
on May 11 1999) by filing a notice of appeal, he still filed an MR on May 28
1999 within the reglementary period.
SC: The period for perfecting an appeal is interrupted when a MR of Motion
for New Trial is filed (Sec 6, Rule 122). Moll makes it appear that his filing of
an MR should have stayed the running of the period for filing an appeal.
However, what he did file was a Motion to Quash the Information; and
when it was denied, he filed an MR. Neither the Motion to Quash nor his MR
was directed at the judgment of conviction. Rather, they both attacked a
matter extraneous to the judgment. Hence, they cannot affect the period
of appeal granted by the ROC in relation to the conviction. Further, Moll
admitted that no regular appeal was filed. He also filed the MTQ belatedly
(filed it on day of promulgation instead of any time before entering a plea).
Since no appeal of conviction was seasonably filed by Moll, judgment
against him has become final. COMELEC en banc correctly ruled that he
was disqualified from running for mayor under Sec. 40 (a) LGC 1. Moll was
sentenced to suffer the penalty of 6 mos of arresto mayor to 1 year and 9
mos of prison correccional, a penalty that clearly disqualified him from
running for any elective local position.
Moll argues that the promulgation of judgment was not valid because it
was done in his absence.
SC: As correctly contended by the OSG, Moll received a notice of his
promulgation, in fact his counsel was present on the day of his
promulgation- to file a motion to quash. Because of his unexplained
absence, promulgation of judgment can be validly made by recording the
judgment in the criminal docket and serving him a copy thereof to his last
known address or thru counsel as per Sec 6, Rule 120 of ROC.
2. If yes, who should become mayor? Ceriola or Kare? Kare.
In allowing Ceriola to be proclaimed mayor-elect, the COMELEC applied
Sec. 211(24) OEC2. It interpreted the phrase disqualified by final
judgment to mean disqualification by a final judgment of conviction. SC
1 Sec. 40. Disqualifications (a) Those sentenced by a
final judgment for an offense involving moral turpitude
or for an offense punishable by 1 year of more of
imprisonment, within 2 years after serving sentence.
has ruled in a long line of cases that the COMELEC cannot proclaim as
winner the candidate who obtained the second highest number of votes
should the winning candidate be declared ineligible or disqualified.
However, COMELEC asserts that this case falls under the exception in
Sunga vs. COMELEC. Court held therein that in the absence of a statute
which clearly asserts a contrary political and legislative policy on the
matter, if the votes were cast in the sincere belief that the candidate was
qualified, they should not be treated as stray, void, or meaningless (italics
supplied). According to the COMELEC, Sec. 211(24) OEC is a clear
legislative policy contrary to the rule that the second placer cannot be
declared winner. Thus, votes cast in Cerilos favor are stray or invalid as
per Sec. 211(24) OEC and Moll thus obtained the highest number of valid
votes.
SC: COMELEC misconstrued Sec. 211(24) by limiting it only to
disqualification by conviction in a final judgment. Read together with
other provisions in the OEC 3 , any vote cast in favor of a candidate, whose
disqualification has already been declared final regardless of the ground
therefor, shall be considered stray.
More importantly, the electorate were under the belief that Moll was
qualified when they voted for him as mayor on May 2001 because it was
only on March 19 2003 that the Comelec en banc resolved to disqualify
Moll from running as a mayoral candidate. There is no presumption that
they agreed to the subsequent invalidation of their votes as stray votes, in
case of his disqualification. COMELECs finding that Moll was ineligible
cannot retroact to the date of the election and invalidate the votes.
The Court pronounced that to allow the defeated and repudiated
candidate to take over the mayoralty despite his rejection by the electorate
is to disenfranchise them through no fault on their part, and to undermine
the importance and the meaning of democracy and the right of the people
to elect officials of their choice.
Theoeretically, the second placer could just receive one
vote. It would then be absurd to proclaim the totally repudiated
candidate as the voters choice. In situations when the votes of the
second placer is not numerically insignificant and the equation
changes because of the disqualification of an ineligible candidate,
voters preferences would be so volatile and unpredictable that the
results for qualified candidates would not be self-evident.
Sec. 44 of RA7169 on permanent vacancies in the offices of the governor,
vice-governor, mayor, and vice mayor would them apply. When Moll was
adjudged to be disqualified, a permanent vacancy was created for failure of
the elected mayor to qualify. In such eventuality, the duly elected vice
mayor shall succeed as provided by Sec. 44
Decision: Molls petition denied. Kares petition granted.

Also, Moll was not notoriously known to the public as an ineligible

candidate. Thus, there is a presumption that the votes of those who voted
for him were cast with a sincere belief that he was a qualified candidate,
and without any intention to misapply their franchise. Their votes cannot
be treated as stray, void or meaningless.

2 Sec. 211 Rules for the appreciation of ballots In the reading and
appreciation of ballots, every ballot shall be presumed to be valid
unless there is clear and good reason to justify its rejection. The
board of inspectors shall observe the following rules, bearing in
mind that the object of the election so to obtain the expression of
the voters will: xxx xxx xxx
24. any vote cast in favor of a candidate who has been
disqualified by final judgment shall be considered as stray
and shall not be counted but it shall not invalidate the
ballot (emphasis and underline supplied)

3 Sec. 72 Effects of disqualification cases and priority

xxx any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and
the votes cast for him shall not be counted. X x x