EM No. 12-040

IN RE: PETITION FOR CONFIRMATION OF REPLACEMENT OF RESIGNED PARTY-LIST NOMINEE
COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE PHILIPPINES, INC., (SENIOR CITIZENS PARTY-LIST

Date: 27 June 2012

This pertains to the  Petition filed by the COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE  PHILIPPINES, INC., (Senior Citizens Party-List, for brevity) raising the issue  of succession to the vacancy opened by Representative David L. Kho’s resignation  from the organization, with a prayer to “[confirm]  and [approve] the replacement of Congressman David Kho, in the person of the  fourth nominee, Remedios D. Arquiza, due to the expulsion of the third nominee,  Francisco G. Datol, Jr.”

The original nominees of  the petitioner party-list are as follows:

1. Atty. Godofredo V. Arquiza;
2. Atty. David L. Kho;
3. Francisco G. Datol, Jr.;
4. Remedios D. Arquiza;
5. Linda Gaddi David;
6. Milagros Aquino-Magsaysay;

During the May 10, 2010  elections, petitioner won two (2) congressional seats with its first two  nominees, Godofredo Arquiza and David Kho, assuming their respective offices.  We note from the records that on May 14, 2010, David Kho, the second nominee,  executed an advance irrevocable resignation letter effective December 31, 2011 in the event that only two (2) seats are won  by petitioner.

Come December 31, 2011, Rep. Kho tendered his resignation honoring his  commitment in his previous letter thereby triggering the present controversy on  who will take his seat that was left vacant.

Francisco G. Datol Jr.  asserts that as the third nominee, he is entitled to the seat vacated by the  second nominee. Godofredo V. Arquiza on the other hand contends that the fourth  nominee, Remedios D. Arquiza, should take the seat, claiming that for usurping  the powers and function of the legitimate officers of the party-list, Mr. Datol  was expelled from the organization on June 13, 2011.

With the above facts, there are two (2) material  issues that need to be resolved:

1. Whether the resignation of Rep. Kho by  virtue of a term-sharing agreement created a vacancy so as to effect a change  in the order of nominees;
2. Whether the list and order  of nominees submitted to the Commission is affected by the expulsion of a Francisco  G. Datol, Jr. from the part-list organization;

First,  resignation of Kho, pursuant to the party nominees’ term-sharing agreement,  cannot be recognized and be given effect so as to create a vacancy in the list and  change the order of the nominees.

Under Section 8 of Republic Act No. 7941, the withdrawal in writing of the nominee of his  nomination is one of the three (3) exemptions to the rule that “[n]o change of names or alteration of the  order of nominees shall be allowed after the same shall have been submitted to  the COMELEC.” While we can consider the resignation of Rep.  Kho as akin to the withdrawal of his own nomination, we are constrained however  NOT to recognize such resignation but  only in so far as to change the order of petitioner’s nominees as submitted to  the Commission.

During the hearing called by this Commission on April  18, 2012 and as borne by the records of this case, it has been very clear that  the resignation of Congressman David L. Kho was made pursuant to the term-sharing  agreement among its nominees duly sanctioned by the petitioner organization.

Even the petition itself attaches as ANNEX “A” a letter of Rep. Kho showing  that as early as May 14, 2010 or just four (4) days after the May 2010  elections, he already committed his resignation by December 31, 2011. We quote  such letter in toto as follows:

“THE HONORABLE SPEAKER
House of Representatives
Congress
Republic of the Philippines
Quezon City

Sir:

I am hereby tendering my irrevocable  resignation as Representative of the Senior Citizen Party-List in the House of  Representatives, effective December  31, 2011 in the event that only two (2) seats are won by our party-list group;  and will resign on June 30, 2012 in case three (3) seats are won.

As a consequence thereof, the Coalition  of Association of Senior Citizens in the Philippines, Inc. shall nominate my  successor pursuant to law and Rules on the matter.

Please accept my esteem and respect.

Truly yours,

[SGD]
Rep. David L. Kho
Party-List Congressman

SUBSCRIBED  AND SWORN to before me in the City/Municipality of QUEZON CITY, this May 14, 2010, 2010, (sic) affiant having  exhibited his CTC#16836192-3-15-09 issued at Q.C.”

This  arrangement was further confirmed during the hearing called by this Commission  which was attended by petitioners and other interested parties. Rep. Arquiza  himself, through his counsel, admitted the existence of the term-sharing  agreement, to wit:

“Chairman Brillantes, Jr.:
Then the subsequent fact would be that, 1) Mr. Kho supposed  to have resigned, is that correct?

Atty. Nicdao:
            Yes, your Honor.

Chairman Brillantes, Jr.:
            At the end  of the year 2011?

Atty. Nicdao:
            Yes, your  Honor.

xxx       xxx       xxx

Chairman Brillantes, Jr.:
And because of this tender of resignation, was this the subject of any arrangement  among the parties, among the nominees?   The resignation of Mr. Kho?

Atty. Nicdao:
            Yes . . . . .

Chairman Brillantes, Jr.:
I wanted to confirm, was there an arrangement that the 1st  and the 2nd nominee who are going to sit as congressmen initially,  Mr. Arquiza and Mr. Kho, will resign by the end of 2011 and will now be  replaced by the 3rd and the 4th nominees, is there such  an arrangement?

Atty. Nicdao:
            It was a  prior arrangement within . . .

Chairman Brillantes, Jr.:
            That’s  right, prior arrangement among the 4?

Atty. Nicdao:
            Yes, your  Honor.

Chairman Brillantes, Jr.:
            Within the  coalition, is that correct?

Atty. Nicdao:
            Yes, your  Honor.

Chairman Brillantes, Jr.:
Therefore,  when Mr. Kho resigned it was by reason of an arrangement previously agreed  upon?

Atty. Nicdao:

           Yes,  your Honor.”

Considering that it is an admitted fact that the  resignation of Rep. Kho was made by virtue of a prior agreement of the parties, we resolve and hereby rule that we  cannot recognize such arrangement and accordingly we cannot approve the  movement in the order of nominees for being contrary to public policy. The  term of office of public officials cannot be made subject to any agreement of  private parties. Public office is not a commodity that can be shared, apportioned  or be made subject of any private agreement. Public office is vested with  public interest that should not be reined by individual interest.

In fact, to formalize the policy of disallowing term  sharing agreements among party list nominees, the Commission recently  promulgated Resolution No. 9366, which provides:

“SEC. 7. Term sharing of nominees. – Filing of vacancy as a result of term  sharing agreement among nominees of winning party-list groups/organizations  shall not be allowed.”

Considering all these, we find the term sharing  agreement by the nominees of the Senior Citizen’s Party-List null and void. Any action committed by the parties in pursuit of such  term-sharing arrangement—including the resignation of Congressman David Kho—cannot  be recognized and be given effect. Thus, in so far as this Commission is  concerned, no vacancy was created by the resignation of Rep. Kho and there can  be no change in the list and order of nominees of the petitioner party-list.

Second, the  expulsion of Datol – even if proven true – has no effect in the list and in the  order of nominees, thus Remedios Arquiza (the fourth nominee) cannot be  elevated as the third nominee.

Now, two questions face us: (1) Can the petitioner  party-list organization expel nominee Datol from the party; and (2) Can his  expulsion effectively remove him from the list of nominees?

The answer is two-fold.

First, we recognize the  right of the party organization to determine who should be its member.  Second, we also uphold a party’s concurring right to remove those who it deems to be not in good standing in their organizations. The government has no right to compel the membership of an individual in an organization or to compel an organization to maintain a member it deems undesirable.

However, as to whether the expulsion of a member  effectively removes him from the list of nominee is an entirely different  issue.

It must be noted that the list and order of nominees,  after submission to this Commission, is meant to be permanent. The legislature in crafting Republic Act No. 7941 clearly deprived the  party-list organization of the right to change its nominees or to alter the  order of nominees once the list is submitted to the COMELEC, except for three  (3) enumerated instances such as when: (a) the nominee dies; (b) the nominee  withdraws in writing his nomination; or (c) the nominee becomes incapacitated.

We must also clarify that expulsion from the  party-list is different from “nominee’s  withdrawal of his nomination in writing” which supposes that the nominee by  himself voluntarily relinquishes or withdraws his nomination and not forced upon him by his organization.  In Lokin vs. COMELEC, the Supreme Court already distinguished between expulsion and resignation of a  party-list nominee clarifying that under Republic Act 794, a party-list organization has no unilateral right to withdraw the  nomination of its nominee when the list has already been submitted to the  COMELEC. The court explained that:

“… [T]he statutory intent  [is] to save the nominee from falling under the whim of the party-list  organization once his name has been submitted to the COMELEC, and to spare the  electorate from the capriciousness of the party-list organizations.”

Thus, even if the expulsion of Datol in the petitioner  party-list were true, the list and order of nominees of the Senior Citizen’s  party-list remains the same in so far as we are concerned as it does not fall under  one of the three grounds mentioned above. Neither does it have an automatic  effect on the organization’s representative in the House of Representatives,  for once a party-list nominee is "elected" into office and becomes a  member of the House, he is treated similarly and equally with the regular  district representatives. As such, they can only be expelled or suspended upon the concurrence of the two-thirds of all its  Members and never by mere expulsion of a party-list organization.

While this arrangement may result in an odd situation  where one remains a member of the House of Representatives under the banner of  particular party-list of which he is no longer a member of. Odd as it is, it is  the law that mandates it. Thus, until the law on the party-list election is  amended, we have no other recourse but to implement its provisions as we find  it.

WHEREFORE,  there being no vacancy in the list of nominees of the petitioner organization, the instant petition is hereby DISMISSED for lack of merit. The list and order of nominees of petitioner hereby remains the same as it was submitted to us there being no legally recognizable ground to cause any changes thereat.

         
I hereby certify that the conclusions in the above resolution were reached in consultation among the members of the Commission before the case was assigned to the writer of the opinion of the Commission    (En Banc).