MANILA, Philippines – Imagine it is election day, May 13, 2019. You hate the long lines, so you arrive at your polling precinct as early as 7 am.

Then you cast your vote for the popular Juan dela Cruz as senator. 

But Juan and his wife, Juana dela Cruz, have a devious plan. Two hours after you cast your vote, Juan withdraws from the 2019 elections.

Promptly, Juana – a virtual unknown who badly wants to experience a senator’s life – files a certificate of candidacy (COC) to substitute for her husband. The Comelec receives Juana’s COC at 11 am, before midday of election day.

You like Juan while you hate Juana. But guess what? Your vote for senator will go to the unpopular Juana. 

This can be the effect of the new resolution promulgated by the Commission on Elections (Comelec) on Friday, September 7, relaxing the rules on substituting for candidates in the 2019 elections. 

Comelec Resolution 10420 allows substitute candidates for those who withdraw their candidacies — and not just for those who die or get disqualified – until midday of election day. 

The substitute, however, should share the surname of the original candidate. No substitution is allowed for independent candidates.

“The substitute for a candidate who died, withdrew his candidacy, or was disqualified by final judgment may file a COC up to midday of Election Day; provided that, the substitute and the substituted have the same surnames,” said Comelec Resolution 10420 promulgated on Friday. 

The substitute should also belong to, and be nominated by, the political party or coalition of the original candidate. 

If the substitute does not share the surname of the original candidate, he or she can file his COC as substitute by November 29, 2018, “so that the name of the substitute will be reflected on the official ballots.”

Different rules in 2016

The rules were different in the 2016 elections. 

Back then, a candidate who withdrew could only have a substitute months before elections. “No substitution due to withdrawal shall be allowed after December 10, 2015,” said Comelec Resolution 9984 promulgated in August 2015.

Only the substitute for a candidate who died or was disqualified by final judgment “may file a COC up to midday of election day, provided that the substitute and the substituted have the same surnames,” the same resolution for the 2016 elections said.

“Substitution due to withdrawal” was what paved the way for long-time Davao City Mayor Rodrigo Duterte to run for and win as president. 

The original presidential candidate of PDP-Laban was Martin Diño. On October 29, 2015, Diño withdrew his candidacy for president to make way for Duterte, who filed his COC for president on November 27, 2015. Duterte submitted his COC way before the deadline of December 10, 2015. 

On Monday, September 10, Comelec Spokesman James Jimenez confirmed that under the new Comelec rules, a person can run as a substitute of a candidate until midday of election day, provided that “the substitute has the same last name.”

This surname rule is to ensure that the surname on the ballot, which is printed months earlier, is the same as the substitute’s. 

Jimenez said the Comelec adopted this rule because the Comelec law department realized it can be done. “To give the voters the widest latitude, this rule was adopted,” Jimenez said in a phone interview with Rappler.

The Omnibus Election Code itself allows the withdrawal until midday of election day, but the Comelec, in the previous automated polls, gave a deadline for “substitution due to withdrawal.” The practical reason was to finalize the name on the ballots, but it also stopped candidates from exploiting substitution close to D-Day.

Dirty tricks

The new Comelec rule, then, does not sit well with former Comelec chairman Sixto Brillantes Jr. 

“Magkakagulo-gulo ‘yan kasi pagdating niyan any time puwede ka mag-withdraw, tapos puwede ka palitan,” Brillantes told Rappler. (There will be confusion because any time you can withdraw and you can be replaced.)

A veteran election lawyer, Brillantes said candidates can exploit this substitution rule. He pointed out that the two other reasons for substitution – disqualification and death – “are not predictable.” On the other hand, he said, “Withdrawal is within the control of the candidate, so puwedeng-puwede niyang guluhin ‘yan (so he can make a mess out of it).” 

Brillantes explained one of the dirty tricks that can be employed using this substitution rule. 

Citing a hypothetical situation, Brillantes said, “Hahanap ako ng artistang kapareho ng family name ko, tapos kunyari ‘yun ang ilalagay kong kandidato. Tapos ‘pag malapit na ang eleksyon, let’s say two days before or one day before the elections, sa-substitute ako. O di ‘pag binoto ‘yan ng tao, akala nila ‘yun ang binoboto nila, ‘yun pala iba na.” 

(I will look for a celebrity that shares my family name, then I will field him first as candidate. Then when the election is near, let’s say two days before or one day before the elections, I will substitute for him. People will then think they’re voting for the celebrity, only to realize later on that he has been substituted for.)

The other factor that can worsen the situation is that Duterte, in the 2016 polls, popularized the substitution rule. “Tama ‘yon. Sumikat ‘yon. Dati hindi naman masyadong alam ‘yon na puwede mag-substitute. Pero ngayon alam na,” Brillantes said. (That’s right. It became more popular. Before, the possibility of substitution was not well-known. But now people know it.)

‘Comelec ang mahihirapan’

Brillantes said he would advise the Comelec to amend this new rule. 

Referring to the Comelec, Brillantes said in jest, “Kung ayaw nilang palitan, okay lang sa akin. Sabi ko sa kanila, dahil sa practice, kagaya ko nasa practice na ako ngayon, malaking gulo ang gagawin niyan, malaki ang hanapbuhay namin niyan. Maraming mamomroblema eh.”

(If they don’t want to change it, it’s okay with me. As I told them, because in practice, as in my case who is now back to practice, that will create a lot of chaos, so that will give us better livelihood. Because many people will encounter problems.)

“Comelec ang mahihirapan,” Brillantes said.  (It’s Comelec that will have a hard time.)

In 2016, the Comelec First Division already pointed out that the substitution process is “prone to abuse.” The Comelec division stated this in dismissing the disqualification petitions against Duterte, which tackled his substitution for Diño.

The Comelec First Division referred to Section 77 of the Omnibus Election Code, which is about substitution “in case of death, disqualification, or withdrawal of another.”

“The Commission is well aware of the fact that the provision is prone to abuse and may even lead to the bastardization of the entire process involved in the selection of candidates by the various political parties in existence to ensure their victory in the polls,” the Comelec First Division said, as quoted by the Inquirer.

“Now the concept is well-known and discussed, the Commission is certain that by the 2019 elections, many candidates, as well as political parties, will use the leeway allowed in Section 77 to its fullest allowable extent,” the poll body also said.

The Comelec, however, said that “at the end of the day, any and all attempts to amend Section 77 by addressing its loopholes and restricting the possible abuse in its application is more properly subject of legislation, rather than this Commission’s rule-making power.” – Rappler.com