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^{CONCURRING OPINION}

BELLOSILLO, J.:

I fully concur with the majority opinion lucidly expressed in the ponencia of our colleague, Mr. Justice Pardo. Nonetheless, I wish to add the following observations if only to highlight in a way the directory nature of COMELEC Resolution No. 3253-A ¹ on the matter of the withdrawal of certificates of candidancy as well as petitioner's compliance therewith. Specifically, Sec. 1, par. (b), of COMELEC Resolution No. 3253-A provides -

Sec. 1. Certificate of Candidancy. - x x x x (b) No person shall be eligible for more than one office to be filled in the same election. If he files a certificate of candidancy for more than one office he shall not be eligible for either. However before the expiration of the period for the filing of certificate of candidancy, he may declare under oath the office for which he desires to be eligible and cancel the certificate of candidacy for the other office or offices x x x x (underscoring supplied).

Section 12 of the same COMELEC Resolution on the withdrawal of a certificate of candidacy provides -

Sec. 12. Withdrawal of Certificate of Candidacy. - Any candidate who desires to withdraw his candidacy may at any time before election day file a statement of withdrawal under oath in five (5) legible copies with the office where the certificate of candidacy was filed.

The regional election director, provincial election supervisor or the election officer concerned shall, upon receipt of the withdrawal, retain a file copy and immediately forward to the Commission through the Law Department all the other copies. On the same date, he shall notify the Law Department by the fastest means of communication of the: a) full name of the candidate withdrawing; b) elective officer concerned; c) political party of the candidate, if any; and d) substitution made, if any.

The field officer concerned shall be notified of any withdrawal of candidacy and/or substitution filed with the Commission (underscoring supplied).

Quite noticeably, while Sec. 12 of COMELEC Resolution No. 3253-A requires that the statement of withdrawal be filed with the office where the certificate of candidacy was filed, there is absolutely no such requirement under the Omnibus Election Code. Instead, what Sec. 73, second par., of the Code simply provides is that a certificate of candidacy may be withdrawn by submitting to the office concerned a written declaration under oath. ² Hence, the COMELEC limited in effect the options of the candidates with regard to the venue where their candidacies could be withdrawn. The statutory authority of the COMELEC to promulgate rules and regulations implementing the provisions of the Omnibus Election Code or other laws which it is mandated to enforce and administer cannot be denied. But in the implementation and enforcement of those rules and regulations, it should always be guided by the tenets of justice and fair play, having in mind the attendant circumstances of each case.

It must be stressed that the COMELEC adopted Resolution No. 3253-A merely for expediency and for the sole purpose of facilitating the expeditious, orderly and convenient transaction of its business relative to the 14 May 2001 elections. It should perforce be construed to be directory or permissive, rather than mandatory or jurisdictional in character, for it could not have been possibly intended to supply a burden not found in the law. Considering the facts obtaining as heretofore recited in the ponencia, it can readily be said that petitioner substantially complied with the requirements for the withdrawal of her certificate of candidacy.

It will be recalled that at about 11:47 p.m. of 28 February 2001 (12:00 o'clock midnight being the deadline for the filing of certificates of candidacy), petitioner handed over to the Provincial Election Supervisor (PES) of Leyte for filing an Affidavit of Withdrawal of her certificate of candidacy for mayor of Baybay, Leyte, as she was instead filing her certificate of candidacy for Governor. The PES however refused to receive it; instead, he advised her to file the same with the Office of the Municipal Election Officer in Baybay, Leyte, pursuant to COMELEC Resolution No. 3253-A.

In this connection, I find nothing legally objectionable to the PES receiving petitioner's Affidavit of Withdrawal and thereafter transmitting it to what he may deem the appropriate COMELEC office. In fact, Director Jose P. Balbuena of the COMELEC Law Department admitted during the oral argument that the PES of Leyte could have validly received it and transmitted it to the Municipal Election Officer concerned. At any rate, such tender of the Affidavit to the PES, to my mind, produced the same effect as the filing thereof with the Municipal Election Officer of Baybay, Leyte. The right of a citizen to participate in the democratic process of election should not be defeated by unwarranted omissions and impositions of requirements not otherwise specified in any law.

Moreover, it is borne by the records that petitioner actually sent a copy of her Affidavit of Withdrawal to the COMELEC office of Baybay, Leyte, through facsimile and thereafter filed the original with the same office. Verily, whatever defect may have attended the tender of the Affidavit to the PES was cured by the subsequent transmittal of the document to the COMELEC office of Baybay, Leyte.

The fact that the facsimile was received by the COMELEC office of Baybay at exactly 12:28 a.m. of 1 March 2001, or 28 minutes past the deadline set by the COMELEC, could only be indecisive as it is inconsequential to the validity of the Affidavit of Withdrawal. We must yield to the reality of the situation. The sheer distance between Tacloban City from where petitioner sent the Affidavit by facsimile, and Baybay, Leyte - which is approximately 105 kilometers or about 2 hours drive - made it humanly impossible for petitioner to comply strictly with the appointed deadline. Sending the required Affidavit by facsimile was undoubtedly the fastest and the most practical means under the circumstances.

Be that as it may, there being no sign whatsoever that the 28-minute delay in the filing of the Affidavit of Withdrawal with the COMELEC office in Baybay, Leyte, was intended as a means to commit fraud, to prejudice rival candidates, or to affect the integrity of the coming elections in the province of Leyte, the same may be excused in the interest of justice as a "harmless irregularity." ³cräläwvirtualibräry

Public respondent's contention that petitioner's inability to file her certificate of withdrawal on time with the election officer authorized to receive the same, unduly deprived other interested parties from filing their respective certificates of candidacy for the same position of mayor, deserves scant consideration. Primarily, Director Balbuena of the COMELEC Law Department admitted that there were no such parties interested to file certificates of candidacy for Mayor of Baybay, Leyte, at or about that time. But even assuming that there were other parties who wanted to run for the position, they were not at all prevented from doing so. Certainly, their candidacies could not be dependent on the political intentions or actuations of petitioner.

When election laws do not provide that a departure from a prescribed form will be fatal, and such departure was due to an honest mistake or misinterpretation of election laws on the part of one who must observe it, and the departure has not been used as a means for fraudulent practices, the law shall be held to be merely directory and any departure therefrom will only be considered a "harmless irregularity." For, inconsequential deviations which cannot affect the result of the election, or deviations from provisions intended primarily to secure timely and orderly conduct of elections, a directory construction is generally applied. The same ruling is given on acts not calculated to affect the integrity of the elections. ⁴cräläwvirtualibräry

Finally, petitioner who is an incumbent Representative of the Fifth District of Leyte duly elected by her constituency, and therefore expected to have a substantial following, cannot just be deprived summarily, or simply without due process, of her right to run for Governor of her province. Although a hearing for the reception of evidence of the parties was scheduled by COMELEC on 25 April 2001, prior to that date, or on 23 April 2001, COMELEC En Banc promulgated Resolution No. 3982 directing the cancellation of petitioner's name from the certified list of candidates for Governor of Leyte and for Mayor of Baybay Leyte. Verily, public respondent cannot disqualify a candidate without hearing and affording her an opportunity to adduce evidence in her behalf. The elementary requirements of due process must always be observed. ⁵cräläwvirtualibräry

For these reasons, I vote to GRANT the petition.

Rules and Regulations Governing the Filing of Certificates of Candidacy in Connection with the May 14, 2001 National and Local Elections, promulgated 20 November 2000.[1]

² Sec. 73. Certificate of Candidacy. No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein.

A person who has filed a certificate of candidacy may, prior to the election, withdraw the same by submitting to the office concerned a written declaration under oath.

No person shall be eligible for more than one office to be filled in the same election, and if he files his certificate of candidacy for more than one office, he shall not be eligible for any of them. However, before the expiration of the period for the filing of certificates of candidacy, the person who has filed more than one certificate of candidacy may declare under oath the office for which he desires to be eligible and cancel the certificate of candidacy for the other office or offices.

³ See Alialy v. Commission on Elections, L-16165, 31 July 1961, 2 SCRA 957.

⁴ Ibid.

⁵ Singco v. COMELEC, G.R. NO. 52830, 28 November 1980, 101 SCRA 420.