G.R. No. 179695 / G.R. No. 182369, December 18, 2008.
MIKE A. FERMIN, petitioner, vs. COMMISSION ON ELECTIONS and UMBRA RAMIL BAYAM DILANGALEN, respondents.

FACTS

Mike A. Fermin, a registered voter of Barangay Payan, Kabuntalan, applied for transfer of his registration record to Barangay Indatuan on December 13, 2006, claiming residency there for one year and six months. Barangay Indatuan became part of the newly created Municipality of Northern Kabuntalan after a plebiscite on December 30, 2006. The COMELEC approved Fermin’s transfer on January 8, 2007. On March 29, 2007, Fermin filed his Certificate of Candidacy (CoC) for mayor of Northern Kabuntalan. On April 20, 2007, his opponent, Umbra Ramil Bayam Dilangalen, filed a Petition for Disqualification (docketed as SPA No. 07-372) alleging Fermin lacked the required one-year residency and committed perjury in his CoC and transfer application. The May 14, 2007 elections proceeded, with Dilangalen winning. Fermin filed an election protest (Election Case No. 2007-022) in the RTC. The COMELEC 2nd Division, on June 29, 2007, disqualified Fermin for non-residency, a ruling affirmed by the COMELEC En Banc on September 20, 2007. Fermin assailed this via G.R. No. 179695 . Subsequently, Dilangalen moved to dismiss the election protest in the RTC, which was denied. Dilangalen then filed a Petition for Certiorari and Prohibition (SPR No. 45-2007) with the COMELEC, which, on February 14, 2008, ordered the RTC to dismiss the protest. The COMELEC En Banc denied Fermin’s motion for reconsideration, leading to the filing of G.R. No. 182369.

ISSUE

The primary issue is whether the petition filed by Dilangalen (SPA No. 07-372) is a petition for disqualification under Section 68 of the Omnibus Election Code or a petition to deny due course to or cancel a certificate of candidacy under Section 78, as this determines its timeliness and the proper grounds. A related issue is whether Fermin complied with the one-year residency requirement for candidacy in the newly created municipality.

RULING

The Supreme Court dismissed the petitions. The Court ruled that Dilangalen’s petition was a petition for disqualification under Section 68 of the Omnibus Election Code, not a petition under Section 78. A Section 78 petition is based on a false material representation regarding eligibility (like residency) in the CoC, and must be filed within five days from the CoC filing deadline. A Section 68 petition is based on grounds like ineligibility under the law (including failure to meet residency requirements) and can be filed any day after the last day for filing CoCs but not later than the date of proclamation. Since Dilangalen’s petition alleged ineligibility due to lack of residency and was filed before proclamation, it was a timely Section 68 petition. On the merits, the Court affirmed the COMELEC’s finding that Fermin failed to prove compliance with the one-year residency requirement. His claim of residency in Barangay Indatuan since June 2005 was contradicted by his oath of office as Municipal Administrator in April 2006, which declared Barangay Payan as his residence. His transfer of voter registration in December 2006 was insufficient to establish residency for one year prior to the election. The residency requirement is reckoned from the time of the election, not from the creation of the new municipality. Consequently, the COMELEC did not commit grave abuse of discretion in disqualifying Fermin and in ordering the dismissal of his election protest.