Former Commission on Elections (Comelec) commissioner Rowena Guanzon wanted to be a lawmaker after her mandatory retirement from the poll body in February 2022, but after a two-year legal battle, the Supreme Court finally decided: No.

The High Court’s decision to block Guanzon’s bid to jumpstart the next chapter of her career in public office stemmed from her controversial strategy to enter Congress through the backdoor, more commonly known as the substitution of the original nominee of a party-list group.

The ruling, promulgated in August but made public only this month, is significant for various reasons: (1) such a backdoor route is prone to abuse, (2) solving the issue requires new legislation, and (3) Guanzon was herself an example.

Guanzon’s case

For the 2022 elections, the Comelec imposed a deadline of November 15, 2021 for party-list groups to alter their list of nominees. The deadline was contained in Comelec Resolution No. 10717, which Guanzon signed as a member of the commission.

After she retired from the Comelec, she began campaigning for P3PWD, a party-list group seeking to advocate for persons with disabilities in Congress. She joined sorties, spoke in behalf of the group, and eventually postured as an incoming congresswoman when the May 9 vote results showed that P3PWD had won one seat. That’s even though Guanzon was not officially listed as the group’s nominee.

In June, the five nominees of P3PWD all withdrew their nomination papers, and submitted a new list of nominees that had Guanzon’s name on top. The Comelec approved the withdrawals, and more importantly, granted the substitutions.

The go-signal from the Comelec would have allowed Guanzon to get the ball rolling on June 30, 2022, the first day that the 19th Congress convened, but a day before that, the Supreme Court issued a temporary restraining order (TRO), which effectively put on pause the enforcement of the Comelec resolution that enabled Guanzon’s congressional aspirations.

The TRO was in response to the petition filed by no less than Guanzon’s enemy, Ronald Cardema of Duterte Youth.

Cardema out for blood

Three years before Guanzon pursued the backdoor path to Congress, Cardema had congressional dreams of his own. A day before the polls on May 13, 2019, the original nominees of Duterte Youth withdrew their nomination papers in favor of Cardema, who then became the party-list group’s top nominee.

Then-poll commissioner Guanzon went on a media tour to chastise this move by Cardema, arguing he was not allowed to represent a youth party-list group because he was already overaged at the time. On paper, she even accused Cardema of making a mockery of democratic processes and depriving the electorate of the opportunity to be informed, because he made the substitution effort on the eve of the polls.

The Comelec eventually junked Cardema’s substitution papers, but allowed a second change of nominees. His wife Ducielle became Duterte Youth’s first nominee, paving the way for its entry to Congress.

Cardema, nonetheless, had an axe to grind, and when Guanzon tried to take advantage of the same substitution method, he knocked on the Supreme Court’s doors to spoil her plan of becoming a lawmaker.

Comelec’s error

The Supreme Court found that the Comelec committed grave abuse of discretion when poll officials quickly approved the substitution papers of Guanzon, their former colleague.

The Court flagged the speed with which the poll body, in a 3 to 1 vote in June 2022, greenlit Guanzon’s substitution papers. It echoed reservations raised at the time by Commissioner Aimee Ferolino (whom Guanzon had a bitter feud with prior to her retirement). Ferolino had said that the Comelec should have required P3PWD to publish its new list of nominees first to safeguard the right to information.

“The foregoing clearly shows a pattern of whimsicality and arbitrariness in the way the approving commissioners acted upon the substitution of P3PWD’s nominees, from giving short shrift to the publication requirement, to the brushing aside of the Comelec’s rules in a matter involving a former
commissioner whereas the same was not done in another instance, to the pre-approval of the new list of nominees pending compliance with the publication requirement, to the view of one commissioner that the Comelec may simply recall the approval in case of non-compliance,” the Supreme Court said.

Prone to abuse

The Supreme Court made the following points:

• The country’s party-list law (Republic Act No. 7941) allows the withdrawal of original party-list nominees for whatever reason, but section 8 of that measure sets conditions for which substitutions are valid.
• The Comelec, as an administrative authority, may impose a substitution deadline, even though the party-list law does not explicitly empower the poll body to do so.
• Substitution rules remain mandatory even after elections.

The third point is important because Guanzon had argued that the November 2021 substitution deadline imposed by the Comelec she was once a part of was “directory” and not “mandatory” after the elections are over.

The Supreme Court, however, said: “If we were to deem rules and regulations on nominee substitution as directory after the elections, we would be negating the exceptional character of substitution. In effect, substitution would become the rule rather than the exception and parties would hardly be incentivized to field nominees with bona fide intention to assume office, thus reducing elections to a mere sport where players may be substituted at will or on a whim.”

The ruling still gave P3PWD some wiggle room. It can still maximize the seat it had won in 2022 by just submitting a new list of nominees, just not Guanzon and the other four nominees whose papers were nullified by the Supreme Court.

“If I were them, it would be better not to appeal because the decision of the Supreme Court is really good, they could immediately assume a seat in Congress,” Comelec Chairman George Garcia was quoted as saying on November 21.

Guanzon, in a social media post the same day, said: “For the sake of our PWD and children with special needs sector, P3PWD will submit a new list of 5 nominees to the Comelec for this Congress. Pray for me.”

The Court is also cognizant of the fact that there’s a way to circumvent substitution rules — just wait for the party-list group to get inducted in Congress. Once a party-list group nominee becomes a part of the House of Representatives, the person can just resign from his congressional seat. This results in a vacancy in the seat reserved for the party-list group. The party-list law states that the vacancy shall automatically be filled by the group.

A prominent example of this in the 19th Congress is Erwin Tulfo, who became a House lawmaker in May 2023 after ACT-CIS third nominee Jeffrey Soriano resigned from the chamber.

“Any perceived loophole or lacuna in the law which may result in the abuse and exploitation of the party-list system can only be remedied by the legislature, which alone can amend the law to shield from such schemes,” read the ruling, which even reiterated Chief Justice Alexander Gesmundo’s appeal to Congress during oral arguments to amend the law.

How the magistrates voted

The 15-member Supreme Court did not vote as one. Associate Justice Ricardo Rosario wrote the ponencia (main ruling), with the concurrence of nine other colleagues.

“Evidently, a conflict of interest exists since respondent Guanzon herself, in the discharge of her official duties as a commissioner, paved the way for respondent P3PWD to become a registered party-list. This sort of undue advantage is exactly what Republic Act No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees) aims to avoid,” said Senior Associate Justice Marvic Leonen, who was among those who concurred but dissented on the directive for P3PWD to submit a new list of nominees.

“Worse is how fast respondent Guanzon became a member of respondent P3PWD—merely two days after retiring from Comelec, which gave her a scant four days of buffer to meet the 90-day threshold from the date of elections. As pointed out by petitioner, respondent Guanzon has performed legal acrobatics showing ‘abuse and misuse’ of her legal knowledge and influence,” Leonen added.

Justices Benjamin Caguioa and Jhosep Lopez dissented, while justices Amy Lazaro-Javier, Henri Jean Paul Inting, and Antonio Kho, took no part. Kho and Inting’s brother Socorro were Guanzon’s colleagues in the Comelec en banc. – Rappler.com