ELECTION LAWS

BY ATTY. RAUL B. MARIFOSQUE

*Suffrage

-It means the right to vote in an election of all officers chosen by the

people and in the determination of all questions submitted to the people.

*The Governing Election Law in the Philippines

Ans. Sources:

(A) Pre- Commonwealth Election Law covering period from 1907- 1935.

(B) R.A. 180 (Revised Election Code as amended by R.A. 599, 867 etc.

(C) Election Law after martial law.

(D) Various Resolution passed by the COMELEC implementing the

election laws during their respective times.

(E) Decisions and legal jurisprudence by the Supreme Court.

*COMELEC

Powers and Functions

As provided in the Constitution

(A) Admin and Supervision of elections

(B) Promulgate rules and regulations

*Kinds of Elections

(A) General or Regular

(B) Special Election

*System of Voting under Election Law

-Australian ballot system

*Voting of En Banc COMELEC Members

-Majority of all its members

*Has the COMELEC the power to annul illegal registry lists of voters?

-Yes. (Prudente vs.Genium Nov. 6, 1951) as this is within the

constitution power of the COMELEC.

*Does COMELEC have the power to cancel the canvass of election returns

of the Board of Canvassers?

-Yes. (Abante vs. Relato GR No. L6813/1953)

*Has the COMELEC the power to decide questions involving the right to

vote?

-This is expressly withheld from the COMELEC. (Nacionalista Party vs.

COMELEC).

*Does the COMELEC have the power to investigate and prosecute election

officers?

-Yes. A. Pimentel vs. COMELEC 98 SCAD 37 (1998)

*How will the COMELEC deliberate in election cases?-It may sit En Banc or in two divisions and shall promulgate its own rules

and regulations to expedite the disposition of cases including pre- proclamation cases.

*When may the Supreme Court Review orders of COMELEC?

-Illegal or constitute gross abuse of discretion. (SUMULONG vs.

COMELEC)

*When can an election take place?

-If it is expressly provided by law.

(Garchitorena vs. Cresine 39 Phil. 258)

*Who has the power to declare a failure of election.

-COMELEC

(Loong vs. COMELEC 70 SCAD 626)

*May a Political Party participate in the party- list election?

-Yes. Under the Constitution and R.A. 7941

(Bayan Muna vs. COMELEC)

June 26, 2001

*What is the effect of filing a certificate of candidacy by a person holding

public appointive office or position?

-Any person holding a public appointive office or position, including active

members of the Armed Forces of the Philippines, and officers and employees in

government – owned or controlled corporations, shall be considered ipso facto

resigned from his office upon the filing of his certificate of candidacy. (Sec. 66

Art. IX, B.P. Blg. 881)

*What is the effect of the filing of a certificate of candidacy by an elective

provincial, municipal or city officials?

-Any elective official, whether national or local, who has filed a certificate

of candidacy for the same or any other office shall no be considered resigned

from office. (Sec. 23, COMELEC Resolution No. 3636, Rules and Regulations

Implementing R.A. No. 9006 otherwise known as “Fair Election Act” for the

May 14, 2001 National and Local Elections).

*Does the fact that a person is registered as a voter in one district prove

that he is not domiciled in another district? Why?

-No. The fact that a person is registered as a voter in one district is not

proof that he is not domiciled in another voter in a place other that his residence

of origin is not sufficient to consider him to have abandoned or lost his residence.

(Marcita Mamba Perez vs. COMELEC, G.R. No. 133944, October 28, 1999

citing Faypon vs. Quirino, 96 Phil. 294). Well- settled is the rule that residence

is synonymous with domicile.

*Is there a constitutional right to run for or hold public office? Explain.

-None. What is recognized is merely a privilege subject to limitations

imposed by law. Section 26, Article II of the Constitution neither bestows such a

right nor elevates the privilege to the level of an enforceable right. There is

nothing in the plain language of the provision which suggests such a thrust of

justifies an interpretation of the sort.

-The “equal access” provision is not self- executing, and there is no

plausible reason for according a different treatment to the “equal access”

provision. Like the rest of the policies enumerated in Article II, the provision does

not contain any judicially enforceable Constitutional right but merely specifies a

guideline for legislative or executive action. The disregard of the provision does

not give rise to any cause of action before the courts. (Rev. Elly Pamatong vs.

COMELEC, G.R. No. 161872, April 13, 2004)

*Why does the law reserve the right to run for public office only to citizens

of the Philippines?

-This is so because the assumption is that those who are resident aliens

of a foreign country are incapable of such entire devotion to the interest and

welfare of their homeland for with one eye on their duties here, they must keep

another eye on their duties under the laws of the foreign country of their choice in

order to preserve their status as permanent residents thereof. (Caasi vs. CA,

G.R. No. 88831; COMELEC vs. Miguel, G.R. No. 84508, November 8, 1990).

*Who is a substitute candidate?

-A substitute candidate is one who takes the place of another who is no

longer a candidate, otherwise, the former would be an additional, not a substitute

candidate. (Pontawe vs. COMELEC, G.R. No. 59343, April 24, 1985).

*If a candidate is disqualified after the last day of filing certificates of

candidacy, what could be the remedy?

-There may be a substitute candidate. The substitution may be on or

before mid- day of the day of the election. (Pontawe vs. COMELEC, G.R. No.

59343, April 24, 1985).

*Who can be a substitute candidate in case a candidate dies, or is

disqualified or withdraws after the last day for filing of the certificate of

candidacy?

-Only a person belonging to and certified by the same political party may

file a certificate of candidacy to replace the candidate who died, withdrew or was

disqualified. The substitute candidate nominated by the political party concerned

may file his certificate of candidacy for the office affecter not later than mid- day

of the day of the election. If the death, withdrawal or disqualification should occur

between the day before the election and mid- day of election day, said certificate

may be filed with any board of election inspectors in the political subdivision

where he is a candidate, or, in the case of candidates to be voted for by the

entire electorate of the country, with the Commission. (Domingo vs. City Board

of Canvassers, G.R. No. 105365, June 2, 1992).

*What is the nature of the order of the COMELEC disqualifying a

candidate? Why?

-It is immediately executory, otherwise, there would be no need to

nominate a substitute. (Pontawe vs. COMELEC, supra).

*What are the prohibited means of collection of funds for election

purposes?

-It shall be unlawful for any person to hold dances, lotteries, cockfights,

games, boxing bouts, bingo, beauty contests, entertainments, or

cinematographic theatrical or other performances for the purpose of raising funds

for an election campaign or for the support of any candidate from the

commencement of the election period up to and including election day; or for any

person or organization, whether civic or religious, directly or indirectly, to solicit

and/ or accept from any candidate for public office, or from his campaign

manager, agent or representative, or any person acting in their behalf, any gift,

food, transportation, contribution or donation in cash or in kind from the

commencement of the election period up to and including election day; provided,

that normal and customary religious stipends, tithes, or collections on Sundays

and/ or designated collection days, are excluded from this prohibition. (Sec. 97,

Art. XI, B.P. Blg. 881)

*What shall constitute the permanent list of voters?

-Any provision of P.D. No. 1896 to the contrary notwithstanding, the list of

voters prepared and used in the election of Members of the Batasang Pambansa

on May 14, 1984, with such additions, cancellations and corrections as may

hereafter be made in accordance with the provisions of this Code, shall constitute

the permanent list of voters in each city or municipality, as the case may be until

1996.

-For the purposes of the next following election, the Commission, through

the election registrars, shall assign the proper precincts and polling places to the

registered voters in said list. Written notice of any such change shall be made to

the affected voters within two weeks therefrom. (Sec. 113, Art. XII, B.P. Blg.

881)

*Who may be registered in the list of voters?

-All persons having complied with the requisites herein prescribed for the

registration of voters shall be registered in the list, provided they possess all the

qualifications and none of the disqualifications of a voter. Those who failed to

register in the election of 1984, for any reason whatsoever, may register in

accordance with the provisions of this Code. Any person who may not have on

the date of registration the age or period of residence may also be registered

upon proof that on the date of the election, plebiscite or referendum, he shall

have such qualifications. (Sec. 4, P.D. No. 1896, as amended; Sec. 116, Art

XII, B.P. Blg. 881)

*What are the qualifications prescribed for a voter?

-Every citizen of the Philippines, not otherwise disqualified by law,

eighteen years of age or over, who shall have resided in the Philippines for one

year and in the city or municipality wherein he proposes to vote for at least six

months immediately preceding the election, may be registered as a voter.

*What constitutes residence for purposes of the election law?

-The term residence, as used in constitutional and statutory provisions

relating to the qualifications of electors, is synonymous with home or domicile,

denoting a permanent dwelling place, to which the party when absent, intends to

return. While one cannot by intention alone fix his dwelling place, yet the fact of

residence for the purpose of voting depends largely on the intention of making it

a permanent home, will now qualify the sojourner as an elector, unless it is

otherwise provided by the Constitution or statute. Hence, the two things must

concur – the act of residing coupled with the intention to do so. (20 C.J., p. 68;

Romualdez vs. COMELEC)

*Give the criterion in determining one’s residence.

-While there is no absolute criterion to determine one’s place of residence,

yet the following rules seem to be established:

1) That a man must have a residence somewhere;

2) That once established, the old residence is presumed to

continue until a new one is established; and

3) That a man can have but one domicile of citizenship at a time.

-When circumstances are such that a man may claim a domicile at either

one or two places, the place which he regards as his home or domicile will

be his residence for the purpose of voting. (20 C.J., p. 69).

*Who may challenge the right of a person to register?

-Any person applying for registration may be challenged before the Board

of Election Inspectors on any member, voter, candidate, or watcher. The board

shall then examine the challenged person and shall receive such other evidence

as it may deem pertinent, after which it shall decide whether the voter shall be

included in or excluded from the list as may be proper. All challenges shall be

heard and decided without delay, and in no case beyond three (3) days from the

date the challenge was made.

-After the question has been decided, the Board of Election Inspectors

shall give to each party a brief certified statement setting forth to the challenge

and the decision thereon. (Sec. 32, P.D. No. 1896, as amended; Sec. 136, Art.

XII, B.P. Blg. 881).

*When and by whom may the registry list of voters be annulled?

-Any book of voters not prepared in accordance with the provisions of this

Code or the preparation of which has been effected with fraud, bribery, forgery,

impersonation, intimidation, force, or any other similar irregularity or which list is

statistically improbable may, upon verified petition of any voter or election

registrar, or duly registered political party, and after notice and hearing, be

annulled by the Commission: Provided, that no order, ruling or decision annulling

a book of voters shall be executed within sixty days before an election. (Sec.

145, Art. XII, B.P. Blg. 881).

*How are election inspectors and poll clerks appointed?

-At least thirty days before the date when the voters list is to be prepared

in accordance with the Code, in the case of a regular election or fifteen days

before a special election, the Commission shall directly or through its duly

authorized representatives, constitute a board of election inspectors for each

precinct to be composed of a chairman and a poll clerk who must be public

school teachers, priority to be given to civil service eligibles, and two members,

each representing the two accredited political parties. The appointment shall

state the precinct to which they are assigned and the date of the appointment.

(Sec. 164, Art. XIV, B.P. Blg. 881).

*What are qualifications of members of the Board of Election Inspectors?

-No person shall be appointed chairman, member or substitute member of

the board of election inspectors unless he is of good moral character and

irreproachable reputation, a registered voter of the city or municipality, has

never been convicted of any election offense or of any other crime

punishable by more than six moths of imprisonment, or if he has pending

against him an information for any election offense. He must be able to

speak and write English or the local dialect. (Sec. 166, Art. XIV, B.P. Blg.

881).

*Who are ineligible for appointment as members of the Board of Inspectors.

-No person shall serve as chairman or member of the Board of Election

Inspectors if he is related within the fourth civil degree of consanguinity or

affinity to any member of the board of election inspectors or to any

candidate to be voter for in the polling place or his spouse. (Sec. 167, Art.

XIV, B.P. Blg. 881).

*How may a member of the Board be relieved of his duties?

-Public school teachers who are members of the board of election

inspectors shall not be relieved nor disqualified from acting as such

members, except for cause and after due hearing.

-Any member of the Board of Election Inspectors, nominated by a political

party, as well as his substitute may at any time be relieved from office and

substituted with another having the legal qualifications upon petition of the

authorized representatives of the party upon whose nomination the

appointment was made, and it shall be unlawful to prevent said person

from, or disturb him in, the performance of duties of the said office. A

record of each case of substitution shall be made, setting forth therein the

hour in which the replaced member has ceased in the office and the status

or the work of the Board of Election Inspectors. Said record shall be

signed by each member of the board of election inspectors including the

incoming and outgoing officers. (Sec. 171, Art. XIV, B.P. Blg. 881)

*Can the election inspectors (Election Committee) pass upon the eligibility

of candidates during the counting of the votes?

-No. The duties of election inspectors are confined to the conduct of the

election, the counting of the votes, and the certification of the results in so far as

it relates to the properly certified candidates. The question as to the eligibility of a

candidate of office is one with which they have no authority to decide. (See

Caesar vs. Garrido , 53 Phil. 97).

*What are marked ballots?

-Marked ballots containing distinguishing marks, the purpose of which is to

identify them.

*What is the cardinal rule in the appreciation of ballots? Explain.

-The cardinal objective of ballot appreciation is to discover and give effect

to, rather than frustrate the intention of the voters, thus, every ballot shall be

presumed valid unless clear and good reasons justify its rejection. Extreme

caution should be observed before any ballot is invalidated and doubts in the

appreciation of ballots are resolved in favor of their validity. (Sec. 211, B.P. 881;

Torres vs. HRET, 351 SCRA 312 [2001]). Thus, it is a well- founded rule

ensconced in our jurisprudence that laws and statutes governing election

contests especially appreciation of ballots must be liberally construed to the end

that the will of the electorate in the choice of public officials may not be defeated

by technical infirmities. (De Guzman vs. COMELEC, et al., G.R. No. 159713,

March 31, 2004 citing Bince, Jr. vs. COMELEC 242 SCRA 273 [1995]; Benito

vs. COMELEC, 235 SCRA 436 [1994]; Pahilan vs. Tabalba, 230 SCRA 205

[1994]; Aruelo, Jr. vs. Court of Appeals, 227 SCRA 311 [1993]; Tatlonghari

vs. COMELEC, 199 SCRA 849 [1991]; Unda vs. COMELEC, 190 SCRA 827

[1990]; and, De Leon vs. Guadiz, Jr., 104 SCRA 891 [1981]).

*What are the issues raised in a pre- proclamation controversy?

-The following issues are raised in a pre- proclamation controversy:

(a) Illegal composition or proceedings of the board of canvassers.

(b) The canvassed election returns are incomplete, contain material

defects, appear to be tampered with or falsified, or contain

discrepancies in the same returns or in other authentic copies thereof

as mentioned in Sections 233, 2343, 235 and 236 of this Code.

(c) The election returns were prepared under duress, threats, coercion, or

intimidation, or they are obviously manufactured or not authentic; and

(d) When substitute or fraudulent returns in controverted polling places

were canvassed, the results of which materially affected the standing

of the aggrieved candidate or candidates. (Sec. 243, Omnibus

Election Code).

-The enumeration is restrictive and exclusive. (Dagloc vs. COMELEC, et

al., G.R. No. 15442-47, December 10, 2003)

*What are the matters covered in pre- proclamation controversies? Explain.

-Pre- proclamation controversies are limited to: (1) challenges directed

against the composition or proceedings of the board of canvassers (not the board

of election inspectors), or (2) challenges related to election returns to which a

party must have made specific objection. Hence, if the objection to the election

returns are “that the election returns are manufactured, fabricated or not

authentic, considering that the election returns includes votes on ballots which

are spurious, marked and invalid ballots,” the objections are not proper in a

proclamation controversy since the objection as worded, do not challenge the

returns, but are directed primarily at the ballots reflected in the returns. Thus, it is

settled that issues relative to the appreciation of ballots cannot be raised in a

proclamation controversy.”

-“Appreciation of ballots is the task of the board of election inspectors, not

the board of canvassers, and questions related thereto are proper only in election

protests.” (Dagloc vs. COMELEC, et al., G.R. No. 154442-47, December 10,

2003)

*After proclamation, is a pre- proclamation controversy still viable? Is the

rule absolute? Why?

-No. After a proclamation has been made, a pre- proclamation case before

the COMELEC is no longer viable. (Gallardo vs. Rimando, 187 SCRA 463;

Casimiro vs. COMELEC, 171 SCRA 468; Salvacion vs. COMELEC, 170

SCRA 513; Padilla vs. COMELEC, 137 SCRA 424). In Sison vs. COMELEC,

104 SCAD 129, 304 SCRA 170, it was said that the more appropriate remedy is

election protest or quo warranto. (Laodenio vs. COMELEC, 85 SCAD 441, 276

SCRA 705; Torres vs. COMELEC, 81 SCAD 228, 270 SCRA 583).

-There are exceptions like:

a) where the board of canvassers was improperly constituted;

b) where a quo warranto was not properly filed;

c) where what was filed was not really a petition for quo warranto or an

election protest but a petition to annul a proclamation;

d) where the filing of a quo warranto petition or an election protest was

expressly made without prejudice to the pre- proclamation controversy

or was made ad cautelam; and

e) where the proclamation was null and void. (Laodenio vs. COMELEC,

et al., supra).

*What is the neighborhood rule? Illustrate it.

-Under the neighborhood rule, if the name of a candidate was written on

the wrong space, it should be counted in his favor if the intention to vote for him

for the correct position can be determined. In the case of Lerias vs. COMELEC,

it was observed that the ballot in which the first name and the surname with the

initial of the first name of Rosette Yniguez Lerias, who was a candidate for

representative, was written in the space for senators, should be counted in her

favor, where the space for the House of Representatives was left blank. (Lerias

vs. COMELEC).

*What should be alleged in the election protest?

1) That the protestant is a candidate voted for in the last election and that

he has presented a certificate of candidacy;

2) That the protestee has been proclaimed in the said election; and

3) The date of the proclamation in order to determine the period within

which the protest should be filed.

-The above facts are jurisdictional. The Court of First Instance (now RTC)

being a court of special and limited jurisdiction, cannot try an election

protest until the special facts upon it may take jurisdiction are expressly

shown in the motion of protest. (Tengco vs. Jocson, 43 Phi. 715).

*What is the remedy of an aggrieved party after the proclamation of a

candidate? Is the rule absolute? Explain.

-As a general rule, the proper remedy after the proclamation of the

winning candidate for the position contested would be to file a regular election

protest or a petition for quo warranto. This rule, however, admits of exceptions, to

wit: (1) where the board of canvassers was improperly constituted; (2) where quo

warranto was not the proper remedy; (3) where what was filed was not really a

petition for quo warranto or an election protest but a petition to annul the

proclamation; (4) where the filing of a quo warranto petition or an election protest

was expressly made without prejudice to the pre- proclamation controversy or

was made ad cautelam; and (5) where the proclamation was null and void.

(Lorenzo vs. COMELEC, et al., G.R. No. 158371, December 11, 2003 citing

Ibasco vs. Ilao, 110 Phil. 553, [1960]).

*May a party in an election contest dispense with the filing of a motion for

reconsideration from a decision of the Division of the COMELEC to the en

banc? Explain.

-No. Under the existing Constitutional scheme, a party to an election case

within the jurisdiction of the COMELEC in division cannot dispense with the filing

of a motion for reconsideration having been filed. (Ambil, Jr. vs. COMELEC, 344

SCRA 358 [2000]). Failure to abide by this procedural requirement constitutes a

ground for dismissal of the petition.

*When may judicial counting of votes in election contests be ordered?

-Where allegations in a protest or counter- protest so warrant, or

whenever in the opinion of the court the interests of justice so require, it shall

immediately order the book of voters, ballot boxes and their keys, ballots and

other documents used in the election to be brought before it and that the ballots

be examined and the votes recounted (Sec. 225, Art. XXI, B.P. Blg. 881; Garcia

vs. COMELEC, G.R. No. 88158; Uy vs. COMELEC, G.R. No. 97108, May 5,

1992).

*Under what circumstances may the election in a political unit be annulled?

Why?

-In order to annul the election in a political unit, two (2) conditions must

concur:

a) The illegality must affect more than 50% of the votes cast; and

b) It must be impossible to distinguish the good votes from the bad.

-When more than 50% of the total number of votes are illegal, the

annulment is justified for the reason that the remainder did not constitute a

valid constituency. (Espaldon vs. Bandon, HRET Case No. 14,

November 26, 1990).

*When may a proclaimed candidate be unseated?

-A proclaimed candidate may be unseated if:

1) The opponent is adjudged the true winner of the election by final

judgement (Sec. 251);

2) The prevailing party is declared ineligible or disqualified by final

judgment in a quo warranto case (Sec. 253, OEC);

3) The incumbent is removed from office for cause (Sec. 264, OEC;

Secs. 18, 9, & 12, R.A. No. 3019; Gallardo vs. Rimando, G.R. No.

91718, July 13, 1990).