[ G.R. No. 52737. August 31, 1981 ] 194 Phil. 122; 78 OG No. 39, 5182 (September 27, 1982)
EN BANC
[ G.R. No. 52737. August 31, 1981 ]
DAVID Q. SANDALO, PETITIONER, VS. COMMISSION ON ELECTIONS AND PACIFICO D. ALBURO, RESPONDENTS. D E C I S I O N
AQUINO, J.:
In the election of January 30, 1980, Pacifico D. Alburo was the official candidate of the Kilusang Bagong Lipunan for mayor of Tubay, Agusan del Norte. David Q. Sandalo was the official candidate of the Nacionalista Party.
On January 16, 1980, Alburo (he was the incumbent mayor) filed with the Commission on Elections a petition to disqualify Sandalo on the ground of turncoatism. Sandalo answered the petition. The case was not decided before the election.
On January 31, 1980, or the day after the election, the municipal board of canvassers proclaimed Sandalo as the duly elected mayor with a margin of 455 votes over his opponent. He obtained 2,439 votes. Alburo was credited with 1,984 votes.
However, on February 16, 1980, the Comelec in its Resolution No. 9160 set aside the proclamation, denied due course to Sandalo’ s candidacy and ordered the municipal board of canvassers to proclaim Alburo as mayor.
The Comelec found after hearing that Sandalo was a member of the KBL as shown in his certificate of affiliation dated December 26, 1979, that he was a member of the KBL’s municipal committee and that on January 4, 1980 he filed his certificate of candidacy as a member of the Nacionalista Party.
Sandalo in this petition for certiorari filed on February 23, 1980 questions the Comelec’s resolution disqualifying him for the position of mayor. On February 26, this Court issued a restraining order stopping the proclamation of Alburo as mayor. (Justices Aquino and Guerrero voted against the issuance of that restraining order). Sandalo assumed the position of mayor on March 19, 1980 (p. 102, Rollo).
The issue is whether the Comelec committed a grave abuse of discretion in disqualifying Sandalo on the ground of turncoatism as provided for in section 10, Article XII(C) of the Constitution in relation to section 7 of Batas Pambansa Bilang 52.
We hold that the Comelec correctly decided that Sandalo, a political opportunist, was a turncoat and was disqualified to run for mayor. Its finding that Sandalo affiliated with the KBL and that nine days later he switched to the Nacionalista Party is binding and conclusive on this Court.
This case is similar to Gabatan vs. Commission on Elections, G.R. No. 52381, January 25, 1980 and Evasco vs. Commission on Elections, G.R. No. 52401, January 28, 1980, where, under facts almost identical to the facts of this case, a candidate who affiliated with the KBL was held to be disqualified to run as a Nacionalista. See Santos vs. Commission on Elections, G.R. No. 52390, March 31, 1981.
Sandalo’s contention that the Comelec should have resolved the disqualification case on or before mid-day of election day is not supported by section 28 of the 1978 Election Code which refers to substitute candidates in case of death, withdrawal or disqualification of candidates.
WHEREFORE, the petition is dismissed and the restraining order is lifted. The Comelec’s resolution of February 16, 1980 ordering Alburo’s proclamation is upheld. Costs against the petitioner.
SO ORDERED. Barredo, Makasiar, Concepcion, Jr., Fernandez, Guerrero, and De Castro, JJ., concur. Fernando, C.J., did not take part. Teehankee, J., dissents in a separate opinion. Abad Santos, J., on leave. Melencio-Herrera, J., in the result.