In defense of Judge Ferdinand Rafanan
Al Vitangcol 3rd
JUDGE Ferdinand Rafanan has weathered his fair share of controversies. During his tenure as Director IV at the Commission on Elections (Comelec) law department, he consistently upheld his integrity and remained impartial despite the barrage of allegations thrown his way. Throughout my many years of knowing and working professionally with Rafanan, one thing I can unequivocally affirm is his steadfast commitment to fairness and objectivity.
Now as presiding judge of the Regional Trial Court (RTC) Branch 55 in Mandaue City, Cebu, Rafanan finds himself facing scrutiny from the legal representative of a political litigant who seeks to exploit his past role at the Comelec and has publicly branded him as “biased.”
Sitoy-Cho case
For those not privy to the details, a criminal case for election offense has been lodged against former Cordova town mayor Mary Therese Sitoy-Cho. This case now rests within the jurisdiction of Judge Rafanan’s RTC-Branch 55 courtroom.
Lawyer Edgar Gica, representing Sitoy-Cho, contends that the charges against his client were instigated solely by the local Comelec Region 7 Office in Cebu, bypassing the Department of Justice (DoJ). Gica asserts that only the DoJ has the authority to initiate and prosecute criminal cases before trial courts, not the Comelec.
It appears from the case records that Sitoy-Cho was charged before the local Comelec office for a violation of the Omnibus Election Code (OEC), specifically Section 261(h). Article XXII, Section 261 of the OEC lists the prohibited acts which are considered election offenses. Paragraph (h) pertains to the transfer of officers and employees in the civil service and mandates that “[a]ny public official who makes or causes any transfer or detail whatever of any officer or employee in the civil service including public school teachers, within the election period except upon prior approval of the Commission” is criminally liable.
According to the charges, Juliet Tampus, the municipal agriculture-livestock coordinator, was transferred to another government office sometime in January 2022 when an election ban was in effect for the May 2022 national and local elections. The transfer of Tampus was viewed to be political in nature and became the subject of a complaint filed before the local Comelec office. Sitoy-Cho was thereafter indicted by the Comelec for violation of Section 261(h) of the OEC and a corresponding criminal information filed before the RTC.
The arraignment for Sitoy-Cho was slated for April 23, 2024. Judge Rafanan, noting Sitoy-Cho’s absence despite proper notification, issued a bench warrant against her. It later emerged that lawyer Gica had advised Sitoy-Cho against attending the arraignment. Consequently, Gica, along with his fellow counsel Jude Fernandez and newbie Ruselo Riva Asentista, received an order from Rafanan to justify their nonappearance during the hearing, with a potential fine of P5,000 looming over them.
In what appears to be an attempt to deflect blame, Gica is now leveling accusations of bias and unfairness against Rafanan.
Prosecutorial power of the Comelec
The Comelec’s prosecutorial power was made clear in the case of Henry Lanot et al. v Comelec et al: “The prosecutor is the Comelec, through its law department, which determines whether probable cause exists. If there is probable cause, the Comelec, through its law department, files the criminal information before the proper court. Proceedings before the proper court demand a full-blown hearing and require proof beyond reasonable doubt to convict. A criminal conviction shall result in the disqualification of the offender, which may even include disqualification from holding a future public office.”
In fact, such power was reiterated in the 2022 case of Joseph Peñas v Comelec in this wise —
“The Comelec, through its authorized legal officers, has the exclusive power to conduct preliminary investigations of all election offenses and to prosecute them. This power emanates from Article IX, Section 2, Paragraph 6 of the 1987 Constitution which empowers the Comelec to ‘investigate and, where appropriate, prosecute cases for violation of election laws, including acts or omissions constituting election frauds, offenses and malpractices.’ This grant of authority is reiterated in Section 265 of the OEC as amended by RA No. 9369, viz.:”
“Section 265. Prosecution – The Commission shall, through its duly authorized legal officers, have the power, concurrent with the other prosecuting arms of the government, to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same.”
The said jurisprudence cited another precedent, Sunga v Comelec et al., saying that as with ordinary criminal cases, the Comelec is tasked with finding probable cause whenever it conducts preliminary investigation of election-related offenses. It is settled though that the finding of probable cause in the prosecution of election offenses rests in the sound discretion of the Comelec.
Gica’s assertion that only the DoJ holds the authority to prosecute criminal cases is incorrect. Contrary to his claim, as discussed earlier, the Comelec also possesses prosecutorial power in such matters.
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