EXPLAINER: Barug Councilor Philip Zafra could lose his seat. BOPK’s Amay Abella, who died in 2020, to be proclaimed as winner. But what kind of vacancy did she create?

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THE NEWS EVENT. The Commission on Elections (Comelec) is finally enforcing its ruling of June 2019, which (a) declared Sherwin Luie Abella nuisance candidate and (b) transferred his votes to another Abella, Marie Velle “Amay” Abella.

Amay Abella landed #9 in the Cebu City south election for councilors. Seven months before the elections, in October 2018, Atty. Amay filed with Comelec the petition to disqualify Sherwin.

A new count will be made and Atty. Amay is expected to rise to #8 and topple tail-ender Councilor Philip Zafa. But the proclamation of four councilors will be annulled -- Zafra plus Raul Alcoseba, Renato Osmena Jr., and Eugenio Gabuya Jr. -- to allow for possible changes in ranking. A new proclamation will be made after the new canvass.

WHAT JUST HAPPENED. Last Tuesday, September 7, Cebu Province Election Supervisor (PES) Lionel Marco Castillano served for Comelec Manila a writ of execution on the four Cebu City councilors: Zafra, Yayoy Alcoseba, Junjun Osmena and Gabuya who ranked, respectively, as #8, 7, 6 and 5 in the May 13, 2019 elections. All four -- two Barugs and two BOPKs -- are incumbent councilors, among eight in the south group of the city Sanggunian.

The writ from Comelec’s first division would implement its resolution of June 28, 2019, which declared Sherwin Abella as nuisance candidate and the votes cast for him counted for Amay Abella.

Atty. Amay, 37, died May 26, 2020 of multiple-organ failure. Before she ran for councilor in 2019, she was officer in charge of City Hall’s human resource development office and a member of the mayor’s management team during the 2016-2019 term of Tomas Osmena.

THINGS TO BE DONE. Under the writ of execution, Cebu City’s three-member special board of canvassers has been ordered:

[1] to convene next Friday, September 16 at the Comelec in Palacio del Gobernador in Intramuros, Manila;

[2] to annul the proclamation of Councilors Zafra, Alcoseba, Osmena and Gabuya as the four low-ranked councilors in the south district;

[3] to count and canvass the votes for nuisance candidate Sherwin Abella in favor of Amay Abella. subject to the rule on counting only one vote for her in a ballot that contains both her name and that of Sherwin Labella; and

[4-5] to amend the certificate of canvass of votes and proclamation of Sanggunian members in Cebu City south and to proclaim the duly elected members in the said district, based on results of the recount and re-canvass.

MAY NOT TAKE LONG THIS TIME. It took the Comelec more than two years to wrap up the Abella petition: from June 2019, when Sherwin Abella was declared a nuisance candidate and Amay Abella should get Sherwin’s votes, to September 2021, when Comelec finally started implementing its ruling.

The last stretch may not be a lengthy process anymore.

Ballots in boxes will no longer be physically hauled to Intramuros. Only the three members of the Cebu City south special board of canvassers, with three support staff, will fly to Manila.

Ballot images from 411 clustered precincts will be “decrypted” and printed. And canvassers will focus on ballots with the name, or names, of Amay Labella and Sherwin Abella in them. The process and the recount will start September 17 “until completion,” excluding Saturdays and Sundays. Twenty special election boards, with 80 personnel, will do the job.

WHO MAY LOSE SEAT. The immediate question is, who among the four councilors is most likely to lose his seat?

As early as July 2019, SunStar reported that Zafra, being No. 8 in the count, whom Amay Abella was closely trailing, was at highest risk. Atty. Amay, in addition to the votes credited to her, would get the votes counted for nuisance candidate Sherwin but for each ballot that contains both the names of both Abellas, she shall be credited with only one vote.

The gap between Zafra and Amay Abella is so slim that the votes from Sherwin Abella, added to the votes she originally got, could easily fill it and dislodge the sitting councilor. Provincial election chief Castillano told SunStar Saturday, September 11, that Zafra among the four city councilors most probably will lose his seat.

Atty. Amay landed #9 in the May 13, 2019 elections with 110,090 votes. Zafra placed #8 with 115,292 votes or a difference of just 5,202 votes. The 5,000-plus lead can be swamped by Atty. Amay’s add-on from Sherwin who got 20,262 votes, of which she needed less than 6,000 to overcome Zafra’s lead.

THIS VACANCY IS DIFFERENT. If Atty. Amay is proclaimed the winner and the seat is declared vacant because of her death, who will take her place?

Under the Local Government Code (Republic Act 7160), Bando Osmeña–Pundok Kauswagan (BOPK), the party under which one was elected, shall recommend the person who will fill the permanent vacancy in the Sanggunian of a highly urbanized city. The president, through his executive secretary, shall issue the appointment. That means one more vote for minority BOPK in the City Council.

Atty. Amay’s case though is different as her death occurred before she was proclaimed winner. Would it not be a case where the winner could no longer qualify for the seat as she had died and the next candidate who got the next highest number of votes should be the successor? Province election chief Castillano agreed on the difference of circumstances. If so, would Zafra, who’d slide in the recount, qualify for Atty. Amay’s seat?

LESSON FROM AMAY CASE. The Comelec should’ve ruled on Amay Abella’s petition before election day to enable the voters to make a better-informed choice. Seven months would’ve been more than enough time to decide on the case.

And after it ruled on June 28, 2019, Comelec should’ve immediately issued the writ of execution, which would’ve quickly corrected a wrong and enabled Atty. Amay to serve a part of her term before her death.

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