Comelec division junks DQ case vs. Erwin Tulfo

The Commission on Elections (Comelec) Second Division on Thursday junked the disqualification petition against Erwin Tulfo, who is eyeing to become a nominee of ACT-CIS Partylist in the House of Representatives.

“Wherefore, premises considered, the Petition is DISMISSED for lack of jurisdiction,” read the resolution signed by Comelec Second Division presiding commissioner Marlon Casquejo and Commissioners Rey Bulay and Nelson Celis.

The petition, filed by lawyer Moises Tolentino on March 1, 2023, argued that Tulfo should be disqualified due to “serious doubts that hover around” his citizenship and the lack of evidence that he had already served his sentence for his libel conviction, which became final and executory in 2008.

Tolentino likewise asserted that Tulfo is “deemed to have withdrawn his nomination” when he accepted his appointment as secretary of the Department of Social Welfare and Development.

In response, Tulfo asked the Comelec division to outright dismiss the petition, saying that the disqualification case “was filed out of time.”

He said the case was only filed on February 28, 2023, or almost nine months after May 26, 2022 or the proclamation date of ACT-CIS as one of the winning partylist groups.

Tulfo cited Section 3 of Rule 25 of Comelec rules, which provides that the petition for disqualification of candidates shall be filed on any day after the last day of filing of certificates of candidacy but not later than the date of proclamation.

The Comelec Second Division gave weight to Tulfo’s argument, citing Section 4(b), Rule 5 of Comelec Resolution 9366, which explicitly requires that a petition for disqualification shall be filed at any day not later than the date of proclamation.

“Notably, Petitioner had all the chance to file a disqualification case against Respondent not later than 26 May 2022, considering that the list of nominees is being published by the COMELEC in compliance with [Section] 8, Rule 4 of Resolution No. 9366,” the resolution read.

“Considering the publication of the list of nominees, Petitioner was deemed informed of Respondent’s nomination. To file a petition for disqualification, Petitioner should not have waited for Jeffrey Soriano, to have resigned and for Respondent as fourth nominee, to fill up the vacancy,” it further read.

The Comelec Second Division likewise stressed that it would defeat the purpose of the Comelec rules in publishing the list of nominees and setting a deadline for the filing of petitions for disqualification if any person can simply file such petitions any time.

This situation would lead to vacancies' not being filled up on time, the Comelec division said.

Tulfo was the fourth name on the list of nominees submitted to the Comelec for the 2022 National and Local Elections. The first three nominees, including Soriano, assumed office on June 30, 2022. Soriano's resignation was then accepted by the House of Representatives.

The Comelec Second Division also said that Section 16 of Republic Act 7491 allows Tulfo, as the next nominee in line, to automatically assume the seat vacated by Soriano.

“In this case, nothing in the law and rules grant upon the Commission the jurisdiction to act on the instant petition for disqualification because the same was filed beyond the period prescribed under the rules,” the Comelec Second Division said.

Citizenship

While Tulfo answered the issues on his citizenship and conviction, the Comelec Second Division also deemed it “futile” to discuss it.

In his response to the petitioner’s claim that there are serious doubts on his citizenship due to his admission in a Commission on Appointments hearing for his appointment as DSWD secretary that he used to be a member of the United States Army, Tulfo said he “never lost his Philippine citizenship.”

He told the Comelec Second Division that he served in the US Army when he was “recruited by a certain American citizen” who was a member of the force.

Tulfo said that he went to the US in 1985 as a tourist and worked as a bagger in a supermarket to make ends meet.

He said the US Army “befriended him and thereafter offered” him the opportunity to join the military.

Without knowing how it was done, Tulfo said, his requirements and documents for enlistment were processed by people whose identities were not disclosed to him. He said he then received documents stating that he would serve in the US Army bearing the name of Erich Sylvester Tulfo, born on December 30, 1965 which is not his real birthdate.

He was likewise given a US passport bearing the said details.

“No oath of allegiance was ever taken by the Respondent in supposedly ‘acquiring’ American Citizenship, because he never applied for naturalization in the US,” his response read.

Tulfo said he surrendered his US passport to the US Embassy in the Philippines, which then revoked it, as his use of it “triggered an investigation.”

Tulfo said that the US Embassy provided a letter stating that he was never entitled to the US passport as he never acquired American citizenship. A copy of this was given to the Comelec Second Division as an annex to his response.

Conviction

On the issue of lack of evidence to support that he had served his sentence in the libel case, Tulfo said he was only sentenced to pay moral damages amounting to P1 million snd a fine of P6,000 for each count of libel, which he already paid in 2011. He likewise provided the Commission with the copies of Return of the Sheriff dated February 23, 2011 and the copies of the Orders of Regional Trial Court 112 of Pasay City dated May 25, 2011 and October 17, 2022 to support his assertion.

Further, Tulfo argued that Section 12 of the Omnibus Election Code provides that the disqualification due to a conviction by final judgment shall be deemed removed after the expiration of a period of five years from the service of his sentence.

Lastly, Tulfo said his acceptance of the DSWD secretary appointment did not result in the withdrawal of his nomination as ACT-CIS partylist nominee as Section 11 of the Comelec resolution 10717 provides that a nomination can only be withdrawn if it is made in writing and under oath, and filed with the Comelec Law Department.

Although Commissioner Casquejo concurred with the junking of the petition “for insufficient evidence and lack of legal basis,” he issued a separate opinion which focused on the merits of the petition filed against Tulfo.

On Tulfo’s citizenship, Casquejo said that the petitioner failed to provide evidence to support his claim and he only argued the issue based on a “bare narration of facts.”

“There is no evidence to show that [Tulfo] lost his Filipino citizenship, the records as a whole would only point to one conclusion. Under the law on citizenship as provided in the 1935 Constitution, [Tulfo] is for all intents and purposes a natural-born Filipino citizen,” Caquejo said, noting that Tulfo has submitted a letter revealing that the latter was born in Tacloban in 1964 and a copy of his birth certificate.

On Tulfo’s libel conviction, Casquejo said that the former had not only served his sentence by paying the fines imposed by the court and the moral damages but also it was done eleven years ago. Thus, the disqualification imposed against Tulfo has already been deemed removed based on Section 12 of the Omnibus Election Code.

Meanwhile, Casquejo argued that Tulfo’s nomination as ACT-CIS party-list nominee was not  deemed withdrawn due to his appointment as DSWD secretary because the latter “was not occupying any congressional seat on the occasion of his ad interim appointment” until it was bypassed by the Commission on Appointments.

“It follows therefrom that, at that time, there was no seat that he could have forfeited,” Casquejo said.

“Accordingly, for the reasons above stated, the undersigned votes to DISMISS the Petition for Disqualification for lack of merit,” he said.

The junked petition is appealable before the Comelec en banc within five calendar days, according to Comelec Chairman George Garcia.

Should there be no motion for reconsideration filed against the junking of the petition, Garcia said, the decision would be final and executory, which will allow the Comelec en banc to sit as the National Board of Canvassers and issue a certificate of proclamation to Tulfo.

Last March, the proclamation of Tulfo as nominee next-in-line of ACT-CIS partylist was halted by Comelec due to the same petition. — BM, GMA Integrated News