G.R. No. L-52451 - Dissenting Opinion

G.R. No. L-52451, March 31, 1981,
♦ Decision, Aquino, [J]
♦ Concurring Opinion, De Castro, [J]
♦ Dissenting Opinion, Fernando, [CJ]
♦ Dissenting Opinion, Teehankee, [J]
♦ Dissenting Opinion, Abad Santos, [J]
♦ Dissenting Opinion, Melencio-Herrera, [J]

ZACARIAS A. TICZON, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.

ZACARIAS A. TICZON, petitioner,
vs.
COMMISSION ON ELECTIONS, BOARD OF CANVASSERS OF SAN PABLO CITY and ANTONIO B. COSICO, respondents,
CESAR P. DIZON, intervenor.

RAMON ARMEDILLA, petitioner,
vs.
COMMISSION ON ELECTIONS and CESAR P. DIZON, respondents.

1. This is 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 powers 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 the proclamation tion at all costs and prolong the protest." Now, the Comelec has refused to even count 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 1978 elections and was considered by the Comelec itself as "inexis tent") 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. Paredes3 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 its 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 1917 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. Comelec6 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 ruled 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 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 turncoatism, 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 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. Comelec9 ) 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's 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 pre-proclamation [of the winner] thereafter made, a preproclamation 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 disqualification cases which had not been acted upon prior to 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 unseated 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 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 convassing 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 11th hour disqualification of Ticzon;

— As admitted in the plurality decision, (at pages 7 and 8), the Courts 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 chair- man, 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 solemnly 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 Comelec14 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 n 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 the [Ticzon] resigned his membership from the said Liberty 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 re remained with the Liberal Party" which the Comelec itself had held to be now "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. Comelec17 (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 Cancerian 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:

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 wherein the parties are afforded full opportunity to present all 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 offended 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 of time constraints I can no longer re-write and therefore reproduce verbatim18 hereinbelow, in amplification of the foregoing considerations for my dissent which were focused on the plurality decision's rationale.

Memorandum on the overruling and compelling considerations for enforcing the Court's restraining orders of February 5, 1980, February 14, 1980 and February 15, 1980 and upholding the Supreme Court's 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).

1. 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 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 not untoward incident had been reported nor any anomaly recorded during the canvassing by the original Board of Canvassers 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 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 of 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 Cesar 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 effect 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 can- 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 of- officials that they would not implement the questioned resolu tion (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's (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 of 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 pro- clamation 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 restrain- ing 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 qqqdis qualified on the charge of turncoatism. At the end of the hearing there was a clear consensus to apply same formula applied in the Pimentel case of Cagayan de Oro City, i.e., annul the pro- clamation 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 allow- ed 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 resolu tion 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, 180 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;

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

But the Comelec's statement was for 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 at- tested 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 assail- ing the questioned disqualification resolution is a bit more can- did, as follows-

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 party in the elections since it had boycotted the same as well as the 1978 Interim Batasang Pambansa election petitions.

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 i aside such assumption of 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 therefore. 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 disqualification 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:

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 petition, 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, 1980 (1), 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 1981 (2), 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 sangguniang 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 election petitions as in fact a number of them were so removed as in the case of 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 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 Agusan 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 on 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 or 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 constitutional injunction that all "bona fide 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, 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 these question 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 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 given in the first instance a full dress hearing by this Court and resolved only after the fullest deliberations.

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 pro- announcement 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.

ANNEX "B" of Justice Teehankee's Dissenting Opinion in G.R. No. 52390 (Manuel L Santos vs. Comelec).

G.R. No. 52451 — ZACARIAS A. TICZON, petitioner vs. COMMISSION ON ELECTIONS, respondent; G.R. No. 52678 — ZACARIAS A. TICZON, petitioner vs. COMMISSION ON ELECTIONS, BOARD OR CANVASSERS OF SAN PABLO CITY and ANTONIO B. COSICO, respondents, CESAR P. DIZON, intervenor; G.R. No. 53393 — RAMON ARMEDILLA, petitioner vs. COMMISSION ON ELECTIONS and CESAR P. DIZON, respondents.

I vote to grant the petitions. I join Justice-Herrera's dissent except for the last paragraph thereof. 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 powers 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.

Zacarias A. Ticzon appears to have obtained the plurality of votes over Cesar P. Dizon for the office of the mayor of San Pablo City. He should be proclaimed the winner and accordingly allowed to hold office. Thereafter, Dizon can file the appropriate proceedings to test Ticzon's title to the office on the alleged ground of turncoatism if he is so minded.