[ANALYSIS] The dangerous Cardema precedent

 

More than a week after the elections, another issue has risen to the surface with former National Youth Commission’s (NYC) Chair Ronald Cardema petitioning the Commission on Elections (Comelec) to become the official nominee of the Duterte Youth party-list group, replacing his wife, Ducielle, as first nominee.

This bid is problematic and if approved (it has been given due course but not yet approved by the Comelec en banc), will set a dangerous precedent on 3 grounds. First, because this is a way of circumventing the constitutional prohibition against executive officials using government resources to campaign during the elections; second, because it is also a circumvention of the requirement for appointive officials to resign from their posts when the campaign period begins; and third, because it violates the rule that youth representatives must be 30 years old or less.

The party-list system in the Philippines

According to Republic Act No. 7941, or the Party-List System Act, an organized group of persons may register as a party, organization, or coalition for purposes of the party-list system. These groups can participate in the system as a national, regional, or sectoral party. If they participate as a sectoral party, they should represent laborers, peasants, fisherfolks, urban poor, indigenous cultural communities, the elderly, handicapped, women, youth, veterans, overseas workers, and professionals.

Each of these parties shall submit to the Comelec at least 5 names of members. These nominees will form the list from which party-list representatives shall be chosen in case the party-list group obtains the required number of votes.

The nominees for party-list representatives should be natural born citizens of the Philippines, registered voters, residents of the Philippines for a period of at least one year, able to read and write, bona fide members of the party or organization which they seek to represent for at least 90 days before election day, and at least 25 years of age on the day of the election.

In case of nominees of the youth sector, an additional requirement is that they must be at least 25 years old but not more than 30 on the day of the election. If they attain the age of 30 during their term, they will be allowed to continue until the end of the term.

Duterte Youth is one such organization that registered to participate in the last elections aiming to represent the youth sector. Its initial 5 nominees were Ducielle Marie Suarez, Cardema’s wife, Joseph de Guzman, Benilda de Guzman, Arnaldo Villafranca, and Elizabeth Anne Cardema.

At 5:30 pm on May 12, a day before the elections and deadline for substitution of party-list nominees, it was found that Ronald Cardema, then-NYC chair, abruptly resigned to become the sole nominee of the Duterte Youth party-list group, substituting for his wife and the 4 others who all filed their notices of withdrawal.

Currently, he is 33 years old. This is the argument that most youth groups are raising to question Cardema’s actions. However, beyond this blatant disregard for the age requirement, there are also other factors that should be considered against allowing Cardema’s bid to prosper.

Campaign ban

The 1987 Constitution provides in Section 2(4), Article IX-B that “no officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign.” The penalty for such engagement is not only administrative in nature, but is also considered a punishable election offense under the Omnibus Election Code, Section 261 (i).

In the past, the prohibition took effect as soon as the certificate of candidacy (COC) was filed. However, this changed when the Supreme Court decided Penera v. Comelec (G.R. No. 181613, November 25, 2009) and said that a candidate is liable for election offenses only upon the start of the campaign period. This means that the prohibition for the 2019 elections for national positions started on February 12, 2019, while the prohibition for local elections started on March 29, 2019.

Covered in this prohibition are civil servants holding apolitical office. It does not cover elected officials, notwithstanding the fact that “[t]he civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters.”

This was decided by the Surpreme Court in Quinto v. Comelec, G.R. No. 189698, February 22, 2010. In a nutshell, the Court declared that there are substantial differences between elective and appointive officials which justify the automatic resignation of appointive officials when they submit their COCs. Elective officials occupy their office by virtue of the mandate of the people, and they are removed from their office only upon stringent conditions; appointive officials, on the other hand, hold their office by virtue of their designation thereto by an appointing authority.

Ronald Cardema was appointed by the President as chair of the NYC in 2018. At the time, he was already the head of the Duterte Youth movement. Thus, when he submitted his bid for substitution on May 12, he was deemed automatically resigned from his position as chair of the NYC, and the NYC meeting that he reportedly presided over on May 15 can be grounds for the filing of charges against him. The fact that he also used his position as NYC chair to campaign for Duterte Youth and other Duterte-endorsed candidates is also a possible election offense.

Comelec decision and public outcry

On the evening of May 22, reports came out that the Comelec approved the substitution bid, in the midst of clamor from many youth groups to block it, including the National Union of Students of the Philippines, Youth Act Now Against Tyranny, and the College Editors Guild of the Philippines.

Ronald Cardema even arrived in the Philippine International Convention Center and stood up when it was announced that Duterte Youth won one seat in the House of Representatives. In the morning of May 23, however, Commissioner Rowena Guanzon of the Comelec on Twitter said that she has not signed a resolution giving due course to the petition, and that she will dissent to the same.

During an interview, Comelec Chair Sheriff Abas told the media that all they ruled on was the timing of the substitution, but not his eligibility. Further, Chair Abas said that any such issues on his eligibility will be decided by the House of Representatives Electoral Tribunal. This, however, can be a source of other questions, including the time when the HRET can take cognizance of the petition.

According to Reyes v. Comelec, G.R. No. 207264, June 25, 2013, jurisdiction of the HRET can start only after a valid proclamation, a proper oath, and assumption of office. Until then, the Comelec is the judge of all contests pertaining to elections, returns, and qualifications. As of posting, no Comelec resolution has been released to the public.

Final notes

It is to be remembered that the party-list system was created as a result of the policy of the State to promote proportional representation through national, regional, and sectoral lines. The sectoral parties are eyed to represent the marginalized and underrepresented sectors and those who lack well-defined political constituencies but who could contribute to the formulation and enactment of laws that will benefit the nation as a whole. The creation of this system underlines the importance of not just democracy, but a representative democracy.

To belittle this institution by circumventing the Constitution is to set aside the legitimate issues forwarded by these party-list groups. Ronald Cardema belittled the party-list system not only by insinuating that he is eligible for the nomination despite being overage, but by also refusing to comply with the constitutional provisions and election rules on the campaign ban.

Thus, his bid must not be granted, as doing so will set a dangerous precedent for our current electoral process, and for the elections to come. – Rappler.com

Joy Reyes is a collaborator of Professor La Viña. She recently graduated from the University of the Philippines College of Law and holds undergraduate degrees in Psychology and Political Science from the Ateneo de Manila University.