Poll chief: Du30 can be proclaimed if he wins
Even if he remains imprisoned in The Hague, former President Rodrigo Duterte can still be proclaimed should he win as Davao City mayor in the midterm elections in May, according to the Commission on Elections (Comelec).
But whether or not he can perform his responsibilities as a local chief executive for three years would be up for the Department of the Interior of Local Government (DILG) to decide.
“We do not want to preempt what will happen from now until election day. But in the meantime, he remains a candidate, his name will remain in the ballots, and his name can be voted,” Comelec Chair George Garcia said in an interview on dzBB on Sunday.
Duterte will turn 80 on March 28, when the 45-day campaign period for candidates running for local posts starts. He will face off with four other candidates for mayor of Davao City, including ally-turned-opponent Karlo Nograles, who served as Cabinet Secretary and presidential spokesperson during the Duterte administration.
Should he garner the most number of votes, Duterte can be declared a winner and be proclaimed as mayor “in absentia,” Garcia noted.
“He does not need to be present here in the country, or even in Davao City, to be proclaimed as winner. He can be proclaimed wherever he is, in the Philippines or outside the country,” he said.
Gray area
But what happens after the proclamation, when the Comelec no longer has jurisdiction, remains a “gray area.”
According to Garcia, the DILG should now be the one to determine whether the continued incarceration of Duterte at the detention center of the International Criminal Court (ICC) in The Hague while awaiting trial for crimes against humanity charges against him would constitute a temporary or permanent vacancy of his post.
Under the Local Government Code of 1991, a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office.
Based on the same law, if a permanent vacancy occurs in the office of the mayor, the vice mayor shall take over.
Subsequent vacancies in the office shall be filled automatically by the other members of the city council.
Meanwhile, a temporary vacancy should not exceed 30 working days. During the period, the vice mayor shall temporarily exercise powers of the mayor, except the power to appoint, suspend, or dismiss employees.
The ICC’s Pre-Trial Chamber scheduled the confirmation of charges to begin on Sept. 23—four months after the election day—following an initial hearing last Friday, in which the former president was informed of the charges and his rights.
Duterte may file for an interim release, but experts stressed it may be difficult for his team to secure temporary freedom while proceedings are ongoing.
Under the Omnibus Election Code, a candidate can only be disqualified from running if convicted by final judgment.
But as of now, Garcia admitted it is not clear if the final conviction mentioned in the law refers only to those meted out by the courts in the Philippines, or even those abroad, including the ICC.
No precedent
The case of the former president has no precedent, and under the election code and other existing laws, “the arrest of an individual because of an alleged crime, even here in our country, is not a basis to remove the name of a candidate, to disqualify or to strip one of his civil and political rights,” Garcia said.
“As long as there is no final conviction, a Filipino may still run because of the presumption of innocence until proven guilty that is stated in our Constitution,” he said.
Substitution would also no longer be an option for Duterte after the schedule for the filing of certificates of candidacy closed in October last year, except if the candidate dies or is disqualified. In the event of death or disqualification, the candidate’s substitute must bear the same surname and must come from the same party.
