Five months after failing to get a seat in the party-list elections, AA-Kasosyo’s first nominee Mocha Uson has been appointed by President Rodrigo Duterte as deputy executive director of the Overseas Workers Welfare Administration (OWWA). 

After the news broke, the internet was abuzz with questions on why the controversial blogger was appointed considering there is an appointment ban on losing candidates within one year after the elections.  

The ban being cited is in Section 6 of Article IX (B) of the 1987 Constitution. It provides:

Section 6. No candidate who has lost in any election shall, within one year after such election, be appointed to any office in the Government or any Government-owned or controlled corporations or in any of their subsidiaries.

Many said Uson fell under the category of “candidates” in the May 13, 2019, elections and, thus, couldn’t be appointed until after May 13, 2020. 

Curiously, however, Rule 4, Section 3, of Commission on Elections (Comelec) Resolution No. 9366 (promulgated February 21, 2012) provided that: 

The one year prohibition from being hired or rehired in a public office after their party-list organizations fail to secure the needed votes to qualify them for a seat in the House of Representatives, shall not apply to them. 

The above-quoted provision, however, had been deleted in subsequent reiterations of the resolution, so questions arose as to whether or not that exemption would still apply this time.  

On June 19, 2019, the Comelec en bancresurrected that exemption it in Minute Resolution 19-0677: 

After due deliberation, the Commission RESOLVED, as it hereby RESOLVES that the one (1) year prohibition from being appointed to a government position is not applicable to nominees of losing Party-List Groups as the nominees are not the candidates but rather the party-list itself. Thus, the one (1) year prohibition from being appointed to government positions is NOT applicable to nominees of losing Party-List Groups. 

Does the Comelec have the legal basis for such interpretation? It must be noted that Resolution No. 9366, where the exception was first adopted, was supposed to be an implementing rule for Republic Act No. 7941 or the Party-List System Act.Interestingly, no such counterpart provision can be found in the law itself, so it can be argued that the exception was rather a pure invention of the Comelec and, thus, cannot hold.

However, while it can be admitted that Comelec cannot carve an exception to the constitutional prohibition by a mere administrative resolution, it cannot be denied that it is within its authority to define who are considered candidates and those who are not. So that if one is treated as “not a candidate,” then the prohibition in Section 6 of Article IX (B) of the 1987 Constitution does not apply.

So who is a “candidate”? 

In Comelec Resolution No. 9991 (October 2, 2015) or the “Omnibus Rules on Campaign Finance,”for example, the Comelec defined a “candidate” thus: 

Any person aspiring for elective public office who has filed a certificate of candidacy and has not withdrawn the same before the start of the campaign period. It may also refer to any registered national, regional, or sectoral party or organization or coalition thereof that has filed a manifestation to participate in the party-list elections, provided that it has not withdrawn its intent to participate in the elections before the start of the campaign period. 

In this definition, it is very clear that Comelec considers the “party or organization or coalition” as the candidate, but not their nominees. Thus, following this definition, party-list nominees are not required to file their Statement of Contributions and Expenditures (SOCE), which are mandatory under the law for all “candidates.” 

Curiously, however, examination of the pre-election rules would show an entirely different treatment. 

Under Rule 4, Section 3, of Resolution No. 9366 (as amended by Resolution No. 9413),“non-elective” government officials and employees are deemed resigned upon acceptance of their party-list nomination. Under the same resolution, petitions to deny due course and disqualifications can also be filed against “party-list nominees.” Under the Omnibus Election Code, these petitions can only be filed against “candidates.” 

Analyzing these rules, it would appear that, under the Comelec’s rules, party-list nominees are treated as candidates before elections, but strangely not after elections.  

One can ask, will exempting party-list nominees from the SOCE filing and the appointment ban not violate the constitutional “equal protection clause” vis-a-vis the regular candidates? This, to me, is a perfectly “ripe” question begging for judicial intervention, and I do hope that someone can raise this before the appropriate court.

So why this confusing and inconsistent treatment?

As I would always say, we have bad election laws. The antiquated Omnibus Election Code was promulgated way back in 1985. After its passage, there have been 35 years’ worth of piecemeal, uncoordinated, and unstudied amendments. Unless you practice election lawyering, it is virtually impossible to make sense of the legal framework or simply to know which provision applies and no longer applies. This is made worst by the Supreme Court, which seem to be as confused with its conflicting and ever flip-flopping interpretations.  

One example is that single line in Section 11 of Republic Act No. 8436, which was added by some probably bored lawmaker, and unwittingly re-wrote the Omnibus Election Code. Under the amendment, a person who files his certificate of candidacy is considered a “candidate” only at the start of the campaign period. This innocent line, as ruled in Penera vs. COMELEC (GR Number 181613, November 25, 2009), was taken to mean the abolition of the prohibition on premature campaigning. The same innocent line also rewrote campaign finance rules, and changed the rules on election offense prosecution and the rules on campaigning. 

The Comelec, for a decade now, has significantly lobbied for the compilation and harmonization of all election rules under one law – that is, to make the Omnibus Election Code “omnibus” once again. Unfortunately, until today, the proposal has not moved in Congress, and I do not see it moving anytime soon. Until it happens, we have to contend with loophole-ridden election laws and regulations that the likes of Mocha Uson and friends can easily take advantage of. – Rappler.com 

Emil Marañon III is an election lawyer specializing in automated election litigation and consulting. He is one of the election lawyers consulted by the camp of Vice President Leni Robredo, whose victory is being contested by former senator Ferdinand Marcos Jr. Marañon served in Comelec as chief of staff of retired Comelec Chairman Sixto Brillantes Jr. He is a partner at Trojillo Ansaldo and Marañon (TAM) Law Offices.