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‘Problematic’ process, but Duterte can join presidential race as substitute

Davao City Mayor Rodrigo Duterte may file his certificate of candidacy for president as a substitute, but not without hurdles to surpass, two election lawyers interviewed by GMA News Online said Tuesday.
In a phone interview, former Commission on Elections (Comelec) chair Sixto Brillantes said Duterte may replace PDP-Laban's Martin Diño since the latter has withdrawn his candidacy and named the mayor as his substitute
Brillantes said Duterte may file his COC even while the petition to declare Diño as a nuisance candidate is still pending before the Comelec, since the Second Division has yet to decide on it as well as on the motion filed by the law department to withdraw the petition.  
"Wala pa namang desisyon. Hindi pa naman nade-declare si Diño na nuisance. Pangalawa, meron nang motion ang law department na 'yung petition to declare na nuisance, wini-withdraw na rin. So hindi na matutuloy 'yung petition," he said.
He added: "Ang posisyon ko, hindi mo puwedeng i-declare na nuisance ang isang tao na hindi na kandidato... And withdrawal is one of the grounds to substitute. Since withdrawn na [ang candidacy ni Diño], puwede nang palitan 'yan. Puwede nang palitan at puwedeng pumalit si Duterte."
Brillantes also said, "Mali naman kung hindi papayagan 'yung withdrawal ng petition. Wala na namang kandidato... You cannot declare a person a nuisance if he's no longer a candidate."
'Substantial' error in COC
Lawyer Romeo Macalintal agreed that Duterte is a qualified substitute candidate, but said running to replace Diño's may prove problematic since the latter's certificate is "defective."
While the COC he filled up was for the position of president, Diño wrote that he was filing for mayor of Pasay City.
According to Macalintal, this is a "substantial content" that cannot be easily replaced.
"'Yung certificate of candidacy kasi ni Diño appears to be defective, so papaano puwedeng mag-substitute si Duterte kung ganoon? Wala siyang papalitan na tumatakbong pangulo ng Pilipinas kasi ang certificate of candidacy ni Diño ay COC for mayor," he said by phone.
He added that if Comelec allows Duterte to substitute through Diño's COC, it may affect other decisions it has made on previous cases.
"Hindi lang clerical error 'yung nangyari diyan. Otherwise, kung 'yan ay puwedeng baguhin, napakaraming desisyon ang babaguhin ng Comelec," he said.
For another candidate?
Brillantes, for his part, said the error in Diño's COC is "an informal defect."
Despite arguments over the COC, both election lawyers said Duterte may substitute even for another candidate aside from Diño.
Brillantes and Macalintal said there is no election rule that stops a political party from absorbing Duterte and fielding him as their presidential candidate, even after the filing of COCs.
"Wala naman," Brillantes said when asked about this. "May option talaga si Duterte."
Macalintal, meanwhile, said, "'Yun ay nasa rules and regulations ng partido... Usually, puwede 'yun kasi nagkakaroon nga ng mga coalition ng political parties kaya kung may iba pang presidential candidate na mag-wi-withdraw at papayagan ng kanilang partido si Duterte -- at si Duterte naman ay papayag -- 'yun ang paraan para makatakbo siya."
Up to Comelec
For his part, former Comelec commissioner Gregorio Larrazabal said it would be up to the Comelec to resolve the legal matters surrounding the substitution.
He said, however, that Duterte may file his COC soon if he's going to substitute, and the poll body has to resolve the pending petition immediately.
"That has to be resolved ASAP (as soon as possible) kasi 'yung configuration for the printing of the ballot for the elections will be siguro end of December or early January, so dapat maayos na dapat kung sino talaga 'yung mga kandidato," he said in an interview with News To Go.
He added: "He (Duterte) can naman because until there's a decision by the Comelec regarding the case, hindi pa resolved with finality... Ako, for example, I file as candidate, then finile-an ako as nuisance, I can be replaced, pero hindi pa resolved 'yung issue against me."
Larrazabal further said that if the case is still pending, Duterte "should intervene to manifest" that he can run.
"If you substitute, [do it] ASAP kasi the longer you wait, the more issues will come up. Kasi if you substitute now, puwedeng ma-resolve agad ng Comelec. Pero if you wait until December 10, that will make you lose several days for Comelec to resolve your issues," he said. —KBK/JST, GMA News