ELECTION LAWS

PAGE 53ZPG & Associates

ELECTION LAWS

Suffrage the right and obligation of qualified citizens to vote in the election of certain national and local of the government and in the decisions of public questions submitted to the people. It includes within its scope: election, plebiscite, initiative, referendum and recall.

Election the means by which the people choose their officials for a definite and fixed period and to whom they entrust for the time being as their representatives the exercise of the powers of the government, It involves the choice of selection of candidates to public office by popular vote.

Plebiscite a vote of the people expressing their choice for against a proposed law or enactment submitted to them. An election at which any proposed amendment to or revision of the Constitution is submitted to the people for their ratification. A constitutional requirement o secure the approval of the people directly affected, before certain proposed changes affecting local governments units may be implemented.

Initiative it is the process by which the registered voters directly propose, amend laws, national or local, though an election called for the propose. Amendments to the Constitution may likewise be directly proposed by the people though initiative.

Referendum- it is at he submission of a law pass by the national or local legislative body to the registered voters of an election called for the purpose for their ratification or rejection.

Recall- it is a method by which a public officer may be removed from office during his tenure or before the expiration of his term by a vote of the people after registration of a petition singed by a required percentage of the qualified voters.

Since the right of suffrage is a political and not a natural right, it is within the power of the state prescribe the manner in which such right shall be exercised. Congress is mandated by the Constitution (Sec.2, Art. V):

To provide a system for securing the secrecy and sanctity of the ballot, and for absentee voting by qualified Filipinos abroad, and

To design a procedure for the disabled and the illiterate to vote without the assistance of other persons.

THE COMMISSION ON ELECTIONS

Composition, Qualifications, Appointment,

Term of Office

The COMELEC is composed of a chairman and six (6) Commission, The Chairman and the Members of the Commission shall be:

natural -born citizens of the Philippines

at least thirty-five years of age

holders of a college degree

must not have been candidates for any elective position in the immediately preceding election

majority thereof, including the Chairman shall be members of the Philippines Bar who have been engaged in the practice of law for at least 10 years (reason: COMELEC exercises quasi-judicial powers)

The Chairman and Members are appointed by the president with the consent of the commission on Appointment for the term seven (7) years without reappointment on a staggered basis to make the COMELEC a continuing and self-perpetuating body. Consequently, its members would have the benefit of the experience and expertise of the order members of the performance of its functions, and makes for greater responsibility for its policies and decisions and serve as guarantee against arbitrary action which is likely to occur in a body handling partisans questions.

A member appointment and designations in temporary or acting capacity are not allowed to preserve its independence.

Disabilities, inhibitions\disqualifications

1. Shall not, during tenure, hold any other office or employment

2. Shall not engage in the practice of profession

3. Shall not engage in active management or control of any business which in any ay may be affected by the functions of his office

4. Shall not be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies or instrumentalities, including GOCC s or their subsidiaries.

Safeguards to insure the independence of the COMELEC

It is constitutionally created; may not be abolished by statute

It is expressly described as independent

It is conferred with certain powers and functions which cannot be reduced by statute.

The chairman and members cannot be removed except by impeachment.

The chairman and members are given fairly long term of office of seven years.

The chairman and members may not be reappointed or appointed in an acting capacity.

The salaries of the chairman and members are relatively high and may not be decreased during continuance in office.

The COMELEC enjoy fiscal autonomy.

The COMELEC may promulgate its own procedural rules, provided they do not diminish, increase or modify substantive rights (though subject to disapproval by the Supreme Court)

The Chairman and Members are subject to certain disqualifications calculated to strengthen their integrity.

The COMELEC may appoint their own officials and employees in accordance with Civil Service Laws.

En Banc & Division Cases

SEC 3, ART IX-C The COMELEC may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decision shall be decided by COMELEC en banc

The Supreme Court set aside the resolutions/decisions of the COMELEC because dthe COMELEC en banc tokk original cognizance of the cases without referring them first to the appropriate Division (Sarmiento vs. COMELEC 212 SCRA 307; Zarate vs COMELEC, 318 SCRA 608)

Interlocutory orders issued by a division of the COMELEC cannot be elevated to the COMELEC en banc. (Kho vs. COMELEC, 279 SCRA 463)

The following cases must be decided in Division before they may be heard en bnc on motion for reconsideration:

Petition to cancel a certificate of candidacy. (Garvida vs. Sales, 271 SCRA 764)

Cases appealed from the RTC or MTC (Zarate vs. COMELEC,318 SCRA 608)

Petition for certiorari involving incidental issues of election protest.(Soller vs. COMELEC,339 SCRA 685)

The COMELEC en banc, however, may directly assume jurisdiction over petitions for correction of manifest errors in the tabulation or tallying of results (Ststement of votes) by the Board of Canvassers, notwithstanding that the same is a pre-proclamation comtroversy. Section 5, Rule 27 of the 1993 Rules of the COMELEC expressly provides that pre-proclamation controversies involving correction of manifest errors in the tabulation of results may be filed directly with the COMELELEC cen banc. (Torres vs. COMELEC,270 SCRA 583; Ramirez vs. COMELEC,270 SCRA 590)

The COMELEC en banc determines the existence of probable cause.(Faelnar vs. COMELEC,331 SCRA 429)

DECISIONS

ART IX-A, Section 7 Each commission(COMELEC) shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by the Commission or by law; any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within 30 days from receipt of a copy thereof.

The COMELEC shall decide by a majority vote of all its members in any case or matter brought before it within 60 days from date of its submission for decision or resolution. Two members shall constitute a quorum for the transaction of the official business of the Division. A case being heard by it shaa be decided with the unanimous concurrence ofc all three Commissioners and its decision shall be considered a decision of the commission. If this required number is not obtained, as when there is a dissenting opinion, the case may be appealed to the Commission en banc, in which case the vote of the majority shall be the decision of the Commisssion.

The court holds that 2-1 decision rendered by the First Division was a valid decision under ART IX-A ,Section 7 of the Constitution. Furthermore, the three members who voted to affirm the First Division constituted a majority of the five members who deliberated and voted thereon en banc and their decision is also valid under the aforecited constitutional provisions. (Cua vs. COMELEC, 156 SCRA 587)

One who is no longer a member of the COMELEC at the time the final decision or resolution is promulgated cannot validly take part in that resolution or decision,much more could he be the ponente of the resolution or decision.(Ambil vs. COMELEC, 344 SCRA 358)

RULES OF PROCEDURE

The COMELEC en banc may promulgate its own rules concerning pleadinga and practice before it or before any of its offices. Such rules, however, shall not diminish,increase or modify substantive rights. The Rules of Court applies suppletorily to proceedings before the COMELEC. (Paangarungan vs. COOMELEC,216 SCRA 522)

CONSTITUTIONAL POWERS AND FUNCTIONS

Enforce and administer laws relative to conduct of elections

The regular courts have no jurisdiction to entertain a petition to enjoin the construction of public works projects within 45 days before an election.(Gallardo vs. Tabamo,218 SCRA 253)

Decide election contests involving regional, provincial and city officials

ELECTION CONTEST refers to the adversary proceedings before which matters involving the title or claim to an elective office made before or after proclamation of the winner,is settled whether or not the contestant is claiming the office in dispute. It is neither a civilk action nor crimianal proceeding;it is a summary proceeding of a political character. Its purpose is to ascertain the candidate lawfully elected to office.(Javier vs. COMELEC,144 SCRA 194)

The COMELEC has exclusive appellate jurisdiction over,inter alia, contest involving elective barangay officials decided by trial courts of limited jurisdiction.(Beso vs. abolla,327 SCRA 100)

The provision of RA 6679 granting appellate jurisdiction to the RTC over decisions of MTCs in electoral cases involving elective barangay officials is unconstitutional. (Flores vs. COMELEC,184 SCRA 484)

The COMELEC is the proper appellate court clothed with jurisdiction to hear the appeal, which must first be filed wiyhin 5 days after the promulgation of the MTCs decision(Antonio vs. COMELEC,315 SCRA 62)

The election of SK are goverened by the Omnibus Election Code. Any contest relating to the election of the SK (including the chairman whether pertaining to their eligibility or the manner of their election is cognizable by MTCs,MTCCs, and MeTCs. It is the proclamation which marks off the jurisdiction of the courts from the jurisdiction of election officials. (Marquez vs. COMELEC, 313 SCRA 103)

The COMELEC has appellate jurisdiction over election protest cases involving elective municipal officials decided by courts of general jurisdiction. (Carlos vs. Angeles,346 SCRA 671)

Decide all questions affecting elections

The COMELEC has no jurisdiction over questions involving the right to vote which includes qualifications and disqualifications of voters, the right of a person to be registered as voter, the right to cast his vote, and other allied questions. Such questions shall be decided by the courts.( Naciionalista Party vs. COMELEC, 84 Phil 49)

Election contests involving elections of SK officials do not fall within section 252 of the OEC and paragraph 2,section ART.IX-C of the Constitution and no law in effect prioir tom the ratification of the constitution has made the SK Chairman an elective barangay official. SK elections are under the direct control and supervision of the DILG. (Ahman vs. Mirasol,276 SCRA 501) Decisions/determinations made by the COMELEC in the exercise of this power, being merely administrative(not quasi judicial) in character, may be questioned in an ordinary civil action before the trial courts.(Filipinas Engineering vs. Ferrer,135 SCRA 25)

Deputize law enforcement agencies with the concurrence of the President

Register political parties and accredit its citizens arms

File petitions, investigate and prosecute

Recommend measures to improve election laws

Recommend the imposition of disciplinary action upon an employee it has deputized for violation of its order.

Since the COMELEC can recommend that disciplinary action be taken against an officer it had deputized, idt can investigate an administrative charge against such an officer to determine whether or not it should recommend that disciplinary action can be taken against him (Tan vs. COMELEC,237 SCRA 353)

Regulation of public entities and media-

Section 4, IX-C The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants special privileges, or concessions granted by the Government or any subdivision, agency or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space and the right to reply, including reasonable equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.

The authority given to the COMELEC is to be exercised ofr the purpose of ensuring free, orderly,honest,peaceful.and credible elections and only during the elecxtion period. Note that GOCCs are among those that may be supervised and regulated by the COMELEC.

The SC upheld the validity of Section 11(b), RA 6646, prohibiting the sale odr donation of print space or airtime for political advertisements, and the authority of the COMELEC to procure print space (upon payment of just compensation) and free airtime for allocation to candidates.(Telecommunication and Broadcast Attorneys of the Philippines vs. COMELEC,289 SCRA 33)

An exit poll is a species of electoral survey conducted by qualified individuals or groups of individuals for the purpose of determining the probable result of an election by confidentially asking randomly selected voters whom they have voted for,immediately after they have officially cast their ballot.(ABS-CBN Broadcasting corporation vs. COMELEC,323 SCRA 811)

An absolute prohibition would be unreasonably restrictive,because it effectively prevents the use of exit poll data not only for election-day projections,but also for long term research. The COMELEC concern with the possible non communicative effect of exit polls-disorder and confusion in the voting centers- does not justify a total ban on them. The holding of exit polls and the dissemination of their results through mass media constitute an essential part of freedom of speech and of the press. The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification (ABS-CBN Broadcasting Corporation vs. COMELEC)

The SC held that SEC 5.4 of the Fair Election Act prohibiting publication of survey results 15 days immediately preceding a national election and 7 days before a local election violates the constitutional rights of speech,expression,and the press because:

a. It imposes prior restraint on the freedom of expression;

b. It is a direct and total suppression of the category of expression even though such suppression is only for a limited period; and

c. The governmental interest sought to be promoted can be achieved by means other than the suppression of freedom of expression. (Social Weather Station vs. Comelec, GR No. 147571, May 5,2001)

Make minor adjustments of the apportionment of legislative districts.

This refers mainly to the power to correct an error because of the omission of a municipality or an error in the name of a municipality and does not include the power to make a reappointment of legislative districts. (Montejo vs. COMELEC,242 SCRA 415)

Adjust the apportionment in a case of creation of new provinces or cities.

The COMELEC is merely authorized to adjust the number of congressmen apportioned to an old province if a new province is created out of it and does not authorize the COMELEC to transfer municipalities from one legislative district to another. (Montejo,supra)

Pardon violators of election laws.

Promulgate rulwes of procedure concerning pleadings and practice before it or any of its offices.

Submit report on how a previous elections was conducted.

STATUTORY POWERS

1. Power to declare failure of election and call for special election.

2. Exclusive original jurisdiction over all pre-proclamation controversies.

3. Issue writs of certiorari, prohibition

The COMELEC has the authority to issue extraordinary writs of certiorari,prohibition and mandamus in aid of its exclusive appellate jurisdiction.

Both the SC and the COMELEC have concurrent jurisdiction to issue writs of certiorari,prohibition, and mandamus over decisions of trial courts of general jurisdiction in election cases involving elective municipal officials. The court takes jurisdiction first shall exercise exclusive jurisdiction over the case. (Carlos vs. Angeles,346 SCRA 571)

4. Summons parties to a controversy pending before it

5. Enforce and execute its decisions and orders

6. Punish contempts provided for in the Rules of Courts.

The COMELEC has the power to cite for contempt, but this power may be exercised only while the COMELEC is engaged in the performance of quasi-judicial functions and not administrative functions.(Guevarra vs. COMELEC, 104 PHIL 269 and Masangcay vs. COMELEC, 6 SCRA 270)

7. Promulgate rules and regulations implementing the Election Code

8. Exercise direct and immediate supervision and control over officials required to perform duties relative to the conduct of election.

9. Prescribe forms to be used in the election

10. Procure any supplies, equjipment, materials or services needed for the holding of election

11. Prescribe the use or adoption of the latest technological and electronic devices

12. Carry out continuing and systematic campaign to educate the public about elections

13. Fix other reasonable periods for certain pre-election requirements.

Enlist non-partisan groups to assist.

JUDICIAL REVIEW OF DECISIONS

Any decision, order or ruling of the COMELEC en banc may be brought to the SC on certiorari by the aggrieved party within 30m days from receipt of the copy thereof. When the Supreme Court reviews a decision of the COMELEC, the court exercises extraordinary jurisdiction, thus the proceeding is limited to issues involving grave abuse of discretion resulting in lack or excess of jurisdiction and does not ordinarily empower the court to review the factual findings of the COMELEC. (Aratuc vs. COMELEC,88 SCRA 251)

The mode by which a decision, order or ruling en banc may be elevated to the SC is the civil action of certiorari under Rule 65 of the 1964 Revised Rules of Court, now expressly provided in Rule 64, 1997 Rules of Civil Procedure, as amended. (Ambil vs. COMELEC,344 SCRA358)

A special civil action for certiorari is the proper remedy to question any final order, ruling and decision of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers.(Guerero vs. COMELEC,336 SCRA 458)

What is contemplated by the term final orders, rulings and decisions of the COMELEC reviewqable by certiorari by the Suprerme Court as provided by law are those rendered in actions or proceedings before the COMELEC and taken cognizance of by the said body in the exercize of its adjudicatory (or quasi-judicial) powers. (Salva vs. Makalintal, 340 SRA 506)

COMELEC Resolution No. 2987 which provides for the rules and regulations governing the conduct of plebiscite, is not issued pursuant to the COMELECs quasi-judicial functions but merely as an incident of its inherent administrative functions over the conduct of plebiscites, and any question pertaining to the validity of said resolution may be well taken in an ordinary civil action before the trial courts.(Salva ,supra)

The alleged nature or the COMELEC to implement its resolution ordering the deletion of a candidates name in the list of qualified candidates does not call for the exercise of the SCs function of judicial review as it is undoubtedly administrative in nature, beyond judicial interference.(Chavez vs. COMELEC, 211 SCRA 315)

A resolution of the COMELEC awarding a contract for the supply of voting booths to a private party, as a result of its choice among various proposals submitted in response to its invitation to bid, is not reviewable by certiorari as it is not order rendered in the legal controversy before it but merely as incident to its inherent administration functions over the conduct of elections. Any question arising from said order may be taken in an ordinary civil action. (Filipinas Engineering vs. COMELEC, 344 SCRA 358)

The Supreme Court has no power to review via certiorari, an interlocutory order or even a final resolution of a Division of the COMELEC. (Ambil vs. COMELEC, 244 SCRA 358)

A decision, order or resolution of a division of the COMELEC must be reviewed by the COMELEC en banc decision may be brought to the supreme Court on certiorari. (Ambil vs. COMEL, 358)

VOTERS: QUALIFICATION AND REGISTRATION

Qualification for Suffrage

Filipino citizenship- it may be by birth or naturalization.

Age- a person may be registered as a voter although he is less than 18 years at the time of registration if he will be at least 18 on the day of election.

Residence- at least 1 year in the Philippines, and at least 6 months where he proposes to vote immediately preceding the election. Any person who, on the days of registration may not have been reached the required period of residence but who, on the day of election shall possess such qualification, may register as voter.

No literacy, property or other substantive requirement shall be imposed on the exercise of suffrage.

Any person who temporarily resides in another city municipality or country solely by reason of occupation, profession, employment in public or private service, educational activities, work in the military or naval reservations within the Philippines, service in the AFP, PNP or confinement or detention in government institutions, shall not deemed to have lost his original residence. (Sec. 9, RA 8189)

In election cases, the Supreme Court treats domicile and residence and residence as synonymous terms. In order to acquire a new domicile by choice, there must concur (1) residence or bodily presence in the new locality;(2) an intention to remain there; and (3) an intention to abandon the old domicile. The residence at the place chosen for the new domicile must be actual. (Romualdez vs. RTC,226 SCRA 406)

Disqualifications

1. Any person sentenced by the final judgment to suffer imprisonment for not less than one year.

2. Any person adjudged by the final judgment of having commit (a) any crime involving disloyalty to the government or (b) any crime against national security (c) firearms laws.

3. Insane or incompetent persons as declared by competent authority.

Removal of disqualification for conviction

Plenary pardon

Amnesty

Lapse of 5yaers after service of sentence (Sec.111, RA 8189)

System of Continuing RegistrationThe personal filing o application of registration of voters shall be conducted daily in the office of the Election Office during regular office hours. No registration shall, however, be conducted during the period starting 120 days before a regular election and 90 days before a special election. (Sec. 8, RA 8189)

The Supreme Court upheld the validity of the COMELEC resolution denying the petition of certain youth sectors to conduct a special registration: Petitioners were not denied the opportunity to avail of the continuing registration under RA 8189..the law aids the vigilant and not those who slumber on their rights

In a representative democracy the right of suffrage, although afforded a prime niche in the hierarchy of right embodied in the fundamental law., ought to be exercised within the proper bounds frames and framework of the Constitution and must properly yield to pertinent laws skillfully enacted by the Legislature

The right of suffrage ardently invoked by herein petitioners is not at all absolutethe exercise of suffrage, as the enjoyment of all other rights subject to existing substantive and procedural requirement embodied in our Constitution, statute books and other repositories of law. (AKBAYAN Youth et al. vs. COMELEC GR No. 147066, March 26, 2001)

Inclusion and Exclution Cases

1. Jurisdiction

ii. Municipal or Metropolitan Trial Court original and exclusive Jurisdiction\

iii. Regional Trial Court appellate jurisdiction (5 days) (Sec. 33, RA 8189)

iv. Supreme Court appellate jurisdiction over RTC on question of law (15 days) [Sec. 5(2)(e), Art. VIII, PC; Sec. 2, Rule 45 of the Rules of Court.]

2. Petitioners

ii. Inclusion

Private person whose application was disapprove by the Election Registration Board or whose name was stricken out from the list of waters (Sec. 34, RA 8189)

COMELEC [Sec. 2(6), Art. IX-C, PC]

iii. Exclusion

i. Any registered voter in city or municipality

ii. Representative of political party

iii. Election Officer (Sec. 39, RA 8189)

iv. COMELEC [Sec. 2(6), Art. IX C, PC]

3. Period for Filing

ii. Inclusion Any day except 105 days before regular election or 75 days before a special election. (Sec. 24, RA 8189)

iii. Exclusion Any time except 100 days before a regular election or 65 days before special election. (Sec. 35 RA 8189)

4. Procedure

ii. Petition for exclusion shall be sworn (Sec. 35 , RA 8189)

iii. Each petition shall refer only to only one precinct. (Sec. 35, RA 8189)

iv. Notice

i. Parties to be notified

5. Inclusion Election Registration Board

i. ii Exclusion 6. Election Registration Board

7. Challenged voters [Sec. 32(b), RA 8189]

8. Manner

1. Notice stating the place day and hour of hearing shall be served through any of the following means:

9. Registered mailii. Personal delivery

iii. Leaving copy in possession of sufficient discretion in residence.

iv. Posting in city hall or municipal hall and two other conspicuous places in the city or municipality at least 10 days before the hearing (Sec. 32(b), RA 8189)

Any voter, candidate or political party affected may intervene. (Sec. 32c, RA 8189)

Non-appearance is prima facie evidence the registered voter is fictitious (Sec. 32 (f), RA 8189)

Decision cannot be rendered on stipulation of facts (Sec. 32 (f), RA 8189)

No motion for reconsideration is allowed, (Sec. 33, RA 8189)

Annulment of List of Voters

1. Upon verified complaint of any voter, election officer or registered political party or motu propio, the COMELEC may annul a list of votes which was not prepared in accordance with RA 8189 or whose preparation was affected with fraud, bribery, forgery, impersonation, intimidation, force or other similar irregularity or statistically improbable.

2. No list of voters shall be annulled within 60 days before an election (See. 33, RA 8189)

The annulment of the list of voters shall not constitute a ground for a pre-proclamation controversy. (Ututalum vs. COMELEC, 181 SCRA 335)

When an assailed order had been issued pursuant to COMELECs administrative powers in the absence of any finding of grave abuse of discretion in declaring a precinct as non existent, said order shall stand, judicial interference being unnecessary and uncalled for The sacred right of suffrage guaranteed by the Constitution is not tampered when a list of fictitious voters is excluded from an electoral exercise. (Sarangani vs. COMELEC, 334 SCRA 379)

Election precinct is the basic unit of territory established by the COMELEC for the purpose of voting.

A polling place refers to the building or place where the board of election inspectors conduct proceedings and where the voters cast their votes.

Voting center refers to the building or place where the polling place is located.

List of voters refers to an enumeration of names of registered voters in a precinct duly certified by the Election Registration Board for use in the election.

Book of voters refers to the compilation of all registration records in a precinct.

Signature of Chairman at back of every ballot

In every case before delivering an official ballot to the voter, the Chairman of the BEI shall, in the presence of the voter, affix his signature at the back thereof. Failure to so authenticate shall be noted in the minutes of the BEI and shall constitute an election offense punishable under Sections 263 and 264 of the OEC.

IV. POLITICAL PARTIES AND PARTY LIST SYSTEM

Political party or party when used in the OEC means an organized group of persons pursuing the same ideology, political ideas or platforms of government and includes its branches or divisions. A political party may refer to a local regional or national party existing and duly registered and accredited by the COMELEC. To acquire juridical personality, qualify for accreditation, and to be entitled to the rights of political parties, a political party must be registered with the COMELEC. The following political parties cannot be registered.

1. Religious sects

2. Those which seeks to achieve their goals through unlawful means

3. Those which refuse to adhere to the Constitution

4. Those that are supported by any foreign government

GROUNDS FOR CANCELLATION OF REGISTRATION1. Accepting financial contributions from foreign governments or their agencies (for partisan election purposes.) (Sec.2(5), Art IX C, PC)

2. It is a religious sect or denomination, organization or association organized for religious purposes.

3. It advocates violence or unlawful means to seek its goal

4. It is a foreign party or organization

5. It violates or fails to comply with laws, rules and regulations relating to elections

6. It declares untruthful statements in its petition

7. It has ceased to exist for at least one year , and

8. Fails to participate in the last two preceding elections, or fails to obtain at least 2% of the votes cast under the party list system in the two preceding elections for the constituency in which it was registered.

A party which fails to obtain at least 10% of the votes cast in the constituency in which it nominated candidates in the election next following its registration shall forfeit its registration.

Party System. A free and open party system shall be allowed to evolve according to the free choice of the people. [Sec 2(5) Art. IX C, PC]

The Party List System, is a mechanism of proportional representation in the election of representatives to the House of Representatives, from national, regional and sectoral parties, organizations and coalitions thereof registered with the COMELEC. The Party list system was devised to replace the reserve seat system the very essence of the party list system is representation by election. (Veterans Federation Party vs. COMELEC, 342 SCRA 244)

GUIDELINES FOR SCREENING PARTY LIST PARTICIPANTS

1. The political party, sector, organization must represent the marginalized and underrepresented groups identified in Sec. 5 of RA 7941. majority of its membership should belong to the marginalized and underrepresented;

Proportional representation refers to the representation of the marginalized and underrepresented as exemplified by the enumeration in Sec/ 5 of the law, namely; labor peasant, fisherfolk, urban poor, indigenous cultural communities, elderly,handicapped, women youth, veterans, overseas workers and professionals. The party list organization or party must factually and truly represent the marginalized and underrepresented constituencies mentioned in Sec. 5 .(ang bagong Bayani OFW Labor Party, etal vs. COMELEC etal. GR No. 147589. June 26, 2001)

2. While even major political parties are expressly allowed by RA 7941 and the Constitution, they must comply with the declared statutory policy of Filipino citizens belonging to marginalized and underrepresented sectors to be elected to the House of Representatives. Thus, they must show that they represent the interest of the marginalized and underrepresented;

Political parties, even the major ones, may participate in the party list elections, except for purposes of May 11, 1998 elections. The requisite character of these organizations must be consistent with the purpose of the party list system, as laid down in the Constitution and RA 7941 . . .

Under the Constitution and RA 7941, provide respondents cannot be disqualified from the party list elections, merely on the ground that they are political parties. Sec. 5 Art. VI of the Constitution provides that members of the House of Representatives may be elected through a party list system of registered national, regional and sectoral parties or organizations. Furthermore, under Secs. 7 and 8, Art IX C of the Constitution, political parties may be registered under the party list system. (Ang Bagong Bayani OFW Labor Party, et al vs. COMELEC, et al. GR No. 147589, June 26, 2001)

3. That religious sector may not be represented in the party list system, except that priest, imam or pastors may be elected should they represent not heir religious sect but the indigenous community sector.

4. A party or an organization must not be disqualified under Sec. 6, RA 7941;

5. The party organized must not be adjunct of, or a project organized or an entity funded or assisted by, the government;

6. The party, including its nominees must comply with the qualification requirements of Sec. 9, RA 7941 as follows: No person shall be nominated as party list representative unless he is:

a. natural born citizen of the Philippines

b. a registered voter,

c. a resident of the Philippines for a period not of no less than one year immediately preceding the day of the election;

d. able to read and write;

e. a bonafide member of the party or organization which he seeks to represent for at least 90 days preceding the day of the election; and

f. At least 25 years of age on the day of the election. In case of a nominee of the youth sector, at least be 25 but not more than 30 years of age on the day of the election. Any youth sectoral representative who attains the age of 30 during his term shall be allowed to continue in office until the expiration of his term.

7. Not only the candidate party or organization must represent marginalized and underrepresented sectors, so also must its nominees;

8. While lacking a well defined political constituency, the nominee must likewise be able to contribute to the formation and enactment of appropriate legislation that will benefit the nation as a whole.

The parameters of the Filipino Party List System are: (1) the twenty percent allocation, (2) the two percent threshold; (3) the three seat limit; and (4) proportional representation.

The Constitution makes the number of district representatives the determinant in arriving at the number of seats allocated for party list lawmakers, a formulation which means that any increase in the number of district representatives, an as may be provided by law, will necessarily result in a corresponding increase in the number of party list seats . . . ..

Sections 5 (2), Art. VI of the Constitution is not mandatory, it merely provides a ceiling for party list seats in Congress . . Obtaining absolute proportional representation is restricted by the three-seat-per-party limit to a maximum of two additional slots . .

Under the Niemeyer formula, the number of additional seats to which a qualified party would be entitled is determined by multiplying the remaining number of seats to be allocated by the total number of votes obtained by that party and dividing the product by the total number of votes garnered by all the qualified parties.

The Niemeyer formula, while no doubt suitable for Germany, finds no application in the Philippine setting because of our three seat limit and the non mandatory character of the twenty percent allocation. (Ang Bagong Bayani OFW Labor Party, et al vs. COMELEC, et al. GR No.147589, June 26, 2001)

V.CANDIDATES AND CERTIFICATES OF CANDIDACY

QUALIFICATIONS OF CANDIDATESA.National Arts. VI and VII, PC

1.President and Vice President

2.Senators

3.Congressmen District and Party List Representatives

B.Local Sec.39, Local Government Code

Qualifications prescribed by law are continuing requirements and must be possessed for the duration of the officers active tenure. Once any of the required qualifications is lost, his title to the office may be seasonably challenged. (Frivaldo vs. COMELEC, 174 SCRA 245 and Labor vs. COMELEC, 176 SCRA 1)

Residence

In Marcos vs. COMELEC, 248 SCRA 300, the Supreme Court upheld the qualification of IRMarcos despite her own declarations in her certificate of candidacy that she had resided in the district for only seven months because of the following:

1. A minor follows the domicile of his parents; Tacloban became IRMs domicile of origin by operation of law when her father brought the family to Leyte;

2. Domicile of origin is lost only when there is actual removal or change of domicile, a bonafide intention of abandoning the former residence and establishing a new one, and acts which correspond with the purpose; in the absence of clear and positive proof of the concurrence of all these, these domicile of origin should continue;

3. The wife does not automatically gain the husbands domicile because the term residence in Civil Law does not mean the same thing in Political Law, when IRM married Marcos in 1954, she kept her domicile or origin and merely gained a new home, not a domicilium necessarium;

4. Even assuming that she gained a new domicile after her marriage and acquired the right to choose a new one only after her husband died, her acts following her return to the country clearly indicate that she chose Tacloban, her domicile of origin, as her domicile of choice.

In Aquino vs. COMELEC, 248 SCRA 400, the Supreme Court held that Agapito Aquino failed to prove that he had established not just residence but domicile of choice in Makati. In his certificate of candidacy, he indicated that he was a resident of San Jose Concepcion, Tarlac for 52 years, he was a registered voter of the same district, his birth of certificate places Conception, Tarlac as birthplace. Thus, his domicile of origin was Conception, Tarlac, and his bare assertion of transfer of domicile from tarlac to Makati is hardly supported by the facts of the case.

When the Constitution speaks of residence the word should be understood, consistent with Webster, to mean actual, physical and personal presence in the district that a candidate seeks to represent

The original concept of domicile, which arose from American jurisprudence was not intended to govern political rights, it was designed to resolve the conflict of laws between or among state where a decedent may have lived for various reasons, for the purpose of determining which law was applicable as regards his estate . . .

Applying the concept of domicile in determining residence as a qualification for an elective office would negate the objective behind the residence requirement set forth under the law . . . (Domino vs. COMELEC 310 SCRA 546)

The place where the party actually or constructively has his permanent home, where he, no matter where he may found at any given time, eventually intends to return and remain, i.e., his domicile, is that to which the Constitution refers when it speaks of residence for the purposes of election law . . .

The registration of a voter in a place other than his residence of origin is not sufficient to consider him to have abandoned or lost his residence. (Perez vs. COMELEC, 317 SCRA 641)

The rationale of requiring candidates to have a minimum period of residence in the area in which they seek to be elected is to prevent the possibility of a stranger or newcomer unacquainted with the conditions and needs of a community and not identified with the latter from seeking an elective office to serve that community . . .

The classification of an area as a highly urbanized or independent component city, for that matter, does not completely isolate its residents, politics, commerce and other businesses from the entire province, and vice versa, especially when the city is located at the very heart of the province itself . .

The residence requirement is rooted in the desire that officials of districts or localities are acquainted not only with the metes and bounds of their constituencies but, more important, with the constituents themselves, and a very legalistic, academic and technical approach to the resident requirement does not satisfy this simple, practical and common sense national for the residence requirement. (Torayna vs. COMELEC 337 SCRA 574)

Philippine citizenship

The lost citizenship may be reacquired under Sec. 1 of RA 2630, which provides that any person who had lost his Philippine citizenship by rendering service to, or accepting commission in, the Armed Forces of the United States, or after separation from the Armed Forces of the United States, acquired United States citizenship by taking an oath to the Republic of the Philippines and registering the same with Local Civil Registry in the place where he resides or last reside in the Philippines. The said oath of allegiance shall contain a renunciation of any other citizenship. (Bengson III vs. HRET, et al. GR No. 142840, May 7, 2001)

Repatriation results in the recovery of the original nationality. This means that a naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the other hand, if he was originally a natural-born citizen before he lost his Philippine citizenship, he will be restored to his former status as a natural born Filipino. (Bengson, supra)

Disqualifications

Grounds Under the Omnibus Election Code

A. Any person declared by competent authority insane or Incompetent

B. Any person sentenced by final judgment for any of the Following offenses:

1. Insurrection or rebellion

2. Offense for which he was sentenced to penalty of More than 18 months

3. Crime involving morale turpitude (Sec. 12, BP 881)

C. A permanent resident to or immigrant to foreign country Unless he waives such status (Sec. 68, BP 881)

D. Removal; Insanity or incompetence declaration of removal by competent authority

E. Conviction; unless granted plenary pardon, amnesty; or Lapse of 5 years after service of sentence (Sec. 12, BP 881)

Grounds under the Local Government Code Sec. 40

A. Those sentenced by final judgment for an offense involving moral turpitude or an offense punishable by imprisonment for at least one year, within two years after service of sentence.

B. Those removed from office as a result of an administrative case.

An elective local official who was removed from office prior to January 1, 1992 is not disqualified from running for elective local office (Grego vs. COMELEC, 274 SCRA 481)

C. Those convicted by final judgment for violating his oath of allegiance to the Republic.

D. Those with dual citizenship--The phrase dual citizenship in RA 7160, Sec. 40 (d) and RA 7854, Sec. 20 must be understood as referring to dual allegiance. Consequently, persons with mere dual citizenship do not fall under this disqualification. For candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. (Mercado vs. Manzano, 307 SCRA 630)

E. Fugitives from justice in criminal or non political cases.

F. The term includes not only those who flee after conviction to avoid punishment, but likewise who, after being changed, flee to avoid prosecution. (Marquez vs. COMELEC, 243 SCRA 538)

G. Permanent residents in foreign country or those who have the right to reside abroad and continue to avail of it. (Caasi vs. CA, 191 SCRA 229)

H. The insane or feeble minded.

Three consecutive terms limit

The term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply: (Borja vs. COMELEC, GR No. 133495, September 3, 1998)

Conditions for the application of the disqualification: (1) the official concerned has been elected for three consecutive terms in the same local government post and (2) that he has fully served three consecutive terms . . .

A proclamation subsequently declared void is no proclamation at all and while a proclaimed candidate may assume office on the strength of the proclamation of the Board of Canvassers he is only a presumptive winner who assumes office subject to the final outcome of the election protest . .

Voluntary renunciation of a term of office does not cancel the renounced term in the computation of the three term limit; conversely involuntary severance from the office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. (Lonzanida vs. COMELEC, 311 SACRA 602)

1. Under the Revised Administrative Code Municipal Office

Ecclesiastics (Pamil vs. Teleron, 56 SCRA 413)

Persons receiving compensation from provincial or municipal funds

Contractors for public works of the municipality

2. Under the Lone candidate Law RA 8295

Any elective official who has resigned from his office by accepting an appointive office to become vacant due to his resignation; and

Any person who, directly or indirectly coerces, bribes, threatens, harasses, intimidates or actually causes, inflicts or produces any violence, injury, punishment, torture, damage, loss or disadvantages to any person or persons aspiring to become a candidate or that of the immediate member of his family, his honor or property that is meant to eliminate all other potential candidates.

Certificates of Candidacy

No person shall be eligible for any elective public unless he files a sworn certificate of candidacy within the period fixed by the Omnibus Election Code.

Deadline

Certificate of candidacy must be filed not later than the day before the date for the beginning of the campaign period. (Sec. 7, RA 7166)

A certificate filed beyond the deadline is not valid. (Gador vs. COMELEC, 95 SCRA 431)

Prohibition against multiple candidacies

A person who files a certificate of candidacy for more than one office should be eligible for any of them. (Sec 73, BP 881)

Before the deadline for filing certificates he may withdraw all expect one, declaring under oath the office for which he desires to be eligible and cancel the certificate of candidacy for other office or offices. (Go vs. COMELEC, GR No. 147741, May 10, 2001)

Forms

Oath

The certificate must be sworn. (Sec. 73, BP 881)

The election of a candidate cannot be annulled because of formal defects in his certificate, such as held of oath (Guzman vs. Board of Canvassers, 48 Phil 211)

Name

A candidate shall use his baptismal name or full name, the name registered with the civil registrar or any other name allowed by law.

He may include one nickname or stage name by which he is generally known.

When two or more candidates for the same office have the same name or surname, each shall state his paternal and maternal surnames, except the incumbent (See. 71, BP 881)

Place and Period of Filling

For President, Vice President and Senators: main office of the COMELEC in Manila, 5 copies, not later than 90 days before date of election.

For Members of the House of Representatives:

Provincial legislative districts Provincial Election Supervisor of the Province concerned

NCR legislative districts Regional COMELEC Directors

Legislative districts in cities outside NCR City Election registrar concerned

For provincial offices Provincial Election Supervisor of the province concerned.

City and Municipal offices City or Municipal Election Registrar concerned.

The certificates of candidacy of Members of the House of Representatives, Provincial, city or municipal officials shall be filed in 5 copies not later than 45 days before the election.

The certificate of candidacy shall be filed by the candidate personally or his duly authorized representative. No certificate of candidacy shall be filed or accepted by mail, telegram or facsimile.

The evident purpose of the law in requiring the filing of certificate of candidacy and in fixing the time limit therefore are; (1) to enable the voters to know, at least sixty days before the regular election, the candidates among whom they are to make the choice, and (2) to avoid confusion and inconvenience in the tabulation of the votes to the duly registered candidates, there might be as many persons voted for as there are voters, and votes might be cast even for unknown or fictitious persons, as mark to identify the votes in favor of a candidate for another office in the same election. (Miranda vs. Abaya, 311 SCRA 617)

Duty of COMELEC

Subject to its authority over nuisance candidates and its power to deny due course or cancel a certificate of candidacy, the rule is that the COMELEC shall have only the ministerial duty to receive and acknowledge receipt of the certificates of candidacy. (Sec. 78, BP 881)

Effect Filing

An appointive public official is considered resigned upon filing of his certificate. (Sec. 66, BP 881;Sanciangco vs. Rono, 137, SCRA 671).This includes an employs of a GOCC organized under the Corporation Code (Without original charter), since the law makes no distinction. (PNOC EDC vs. NLRC, 222 SCRA 831)

Any elective official, whether national or local who has filed a certificate of candidacy for the same or any other office shall not be considered resigned from office. (sec. 26, COMELEC Resolution No. 3636, Rules and Regulations Implementing RA 9006)

Withdrawal of Certificate of Candidacy

Form written declaration under oath. There was no withdrawal of candidacy for the position of mayor where the candidate, before the deadline for filing certificates of candidacy, personally appeared in the COMELEC office, asked for his certificate of candidacy and intercalated the word vice before the word mayor and the following day wrote the election registrar saying that his name be included in the list of official candidates for mayor. (Vivero vs. COMELEC, L 81059, Jan 12, 1989)

Since his certificate of candidacy for the office of board member was filed by his party, and the said party had withdrawn the nomination which withdrawal was confirmed by the candidate under oath, there was substantial compliance with Sec. 73. His filing under oath within the statutory period of his individual certificate for candidacy for the separate office of mayor was, in effect, a rejection of the party nomination on his behalf for the office of board member. (Ramirez vs. COMELEC, L-81150, Jan 12, 1992)

Substitution of Candidacy Sec. 77 BP 881; Sec. 12, RA 9006

If after the last day for filing certificates, a candidate dies, withdraws or is disqualified, he may be substituted by a person belonging to his party not later than the mid day of election. Said certificate may be filled with any board of election inspectors in the political subdivision where he is an electorate of the country, with the COMELEC. (Domingo vs. City Board of Canvassers, GR No. 105365, June 2, 1992)

Even if the withdrawal was not under oath, the certificate of the substitute cannot be annulled after the election. Such technicality of the original candidates withdrawal of his certificate of candidacy cannot be used to override the peoples will in favor to the substitute candidate. The legal requirement that the withdrawal be under oath will be held to be merely directory and the candidates failure to observe the requirement is considered a harmless error. Hence the bona fide certificate of the substitute candidate cannot be assailed. The votes in his favor should be counted. (Villanueva vs. COMELEC, 140 SCRA 352)

In case of valid substitutions after the official ballot have been printed, the votes cast for the substituted candidates shall be considered as many votes but shall not invalidate the whole ballot. For this purpose, the official ballots shall provide spaces where the voters may write the name of substitute candidates if they are voting for the latter. (See. 12, RA 9006)

There is nothing in the Constitution or statute which requires as condition precedent that a substitute candidate must have been a member of the party concerned for a certain period of time before he can be nominated as such. (Sinaca vs. Mula, 315 SCRA 266)

A valid certificate of candidacy is likewise an indispensable requisite in the case of a substitution of a disqualified candidate under the provisions of Sec. 77 of the Election Code . . . The concept of a substitute presupposes the existence of the person to be substituted, for how can a person take the place of somebody who does not exist or who never was...

A disqualified candidate may only be substituted if he had a valid certificate of candidacy in the first place because, if the disqualified candidate did not have a valid and seasonably filed certificate of candidacy, he is and was not a candidate at all. If a person was not a candidate, he cannot be substituted under Sec. 77 of the Code . . . .

While Sec. 78 of the Election Code enumerated the occasion where a candidate may validly substitute there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy (Miranda vs. Abaya, 311 SCRA 617)

In case of valid substitutions after the official ballots have been printed, the votes cast for the substituted candidates shall be considered as stray votes but shall not invalidate the whole ballot. Sec. 12, RA 9006. amending Sec. 12 of RA 8436)

DISQUALIFICATION OF CANDIDATES

1. Grounds

Violation of Omnibus Election Code Sec. 68

Giving money or other material consideration to influence voters or public officials performing electoral functions

Committing acts of terrorism to enhance his candidacy

Spending in his election campaign in excess of the amount allowed by the Code

Soliciting, receiving or making any prohibited contribution

Violations of Secs. 80, 83, 85, 86 and 261, paragraphs d, e, k, v and cc, sub-paragraph 6.

Nuisance candidate Sec. 69

A petition to disqualify a candidate for councilor for failure to indicate in his certificate of candidacy the precinct number and the barangay as a registered voter cannot be considered a petition to disqualify him for being a nuisance candidate, since his certificate was not filed to make mockery of the election or to confuse the voters. (Jurilla vs. COMELEC, 232 SCRA 758)

Falsity of material representation in certificate of candidacy. Sec. 78

The COMELEC has jurisdiction over a petition to disqualify a candidate for congressman for ineligibility before he has been proclaimed and has assumed office (Marcos vs. COMELEC, 248 SCRA 300; Aquino vs. COMELEC, 248 SCRA 400)

2. Procedure for disqualification of candidates

The petition shall be filed by any registered candidate for the same Office within 5 days from the last day of filing of certificates of Candidacy. (Secs. 5a and 7, RA 6646)

Under the election laws and the COMELEC Rules of Procedure, any voter may file a petition to disqualify a candidate on grounds provided by law. (Torayno vs.COMELEC, 337 SCRA 574)

The fact that no docket fee was initially paid is not fatal. The Procedural defect as cured by the subsequent payment of the docket fee. (Sunga vs. COMELEC, 228 SCRA 76)

A petition filed after the election is filed out of time. (Loong vs.COMELEC, 216 SCRA 769)

Since the filing by facsimile transmission is not sanctioned and a facsimile copy is not an original pleading, a petition for disqualification should be deemed filed upon the filing of the original petition. (Garvida vs. Sales, 271 SCRA 764)

Where a qualified candidate was replaced on the day before the election, a petition to disqualify the replacement filed on election day should be entertained, as it was impossible to file the petition earlier. (Abella vs. Larrazabal, 180 SCRA 509)

The COMELEC may motu propio refuse to give due course or cancel a certificate of candidacy. (Sec. 69, BP 881)

The proceeding shall be summary. (Nolasco vs. COMELEC, 275 SCRA

762)

The COMELEC can decide a disqualification case directly without referring it to its legal officers for investigation. (Nolasco, supra)

The decision shall be final and executory after 5 days from receipt unless stayed by the Supreme Court [Secs. 5(e) and 7, RA 6646]

EFFECTS OF DISQUALIFICATION CASE

After final judgment -Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted.

Before final judgment If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may, during the tendency thereof, order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong. (Sec. 6, RA 6646)

The purpose of a disqualification proceeding is to prevent the candidate from running or, if elected, from serving, or to prosecute him for violation of election laws. The fact that a candidate has been proclaimed and had assumed the position to which he was elected does not divest the COMELEC of authority and jurisdiction to continue the hearing and eventually decide the disqualification. The COMELEC should not dismiss the case simply because the respondent has been proclaimed. (Sunga vs. COMELEC, 288 SCRA 76 and Lonzanida vs. COMELEC, 311 SCRA 617)

Sec. 6 of RA 6616 authorizes the continuation of proceedings for disqualification even after the elections if the respondent has not been proclaimed. (Perez vs. COMELEC, 317 SCRA 641)

A disqualification case may have two aspects, the administrative, which required only a preponderance of evidence to prove disqualification, and the criminal, which necessitates proof beyond reasonable doubt to convict.

There is no provision in RA 6646 that treats of a situation where the complaint for disqualification is filed after the election. . . .

Second paragraph of paragraph 2 of Res. No. 2050 provides that where a complaint is filed after the election but before proclamation, as in this case, the complaint must be dismissed as a disqualification case but shall be referred to the Law Department for preliminary investigation.

Why there is a difference between a petition for disqualifications before and after the election proceeds from the fact that before the electorate and those who vote for the candidate assume the risk that should said candidate be disqualified after the election, their votes would be declared stray or invalid votes and that would not be true in the case of one filed after the electorate has already voted . . . (Bagatsing vs. COMELEC, 320 SCRA 817)

The COMELEC can legally suspend the proclamation of the winning candidate although he received the winning number of votes.(Labo vs. COMELEC, 211 SCRA 297).

The use of the word may, indicates that the suspension of the proclamation is merely directory and permissive in nature and operates to confer discretion. What is made mandatory is the continuation of the trial and hearing of the action, inquiry or protest. Since the suspension of the proclamation is merely permissive, the proclamation of a candidate is valid, if the COMELEC did not suspend his proclamation. (Grego vs. COMELEC, 274 SCRA 481)

Under the same provision, intervention may be allowed in proceedings for disqualification even after election if there has yet no final judgment rendered. (Mercado vs. Mazano, 307 SCRA 630)

Where the votes cast for a nuisance candidate whose disqualification had not yet become final on election day were tallied separately, they should be counted in favor of the petitioner. (Bautista vs. COMELEC, 298, SCRA 480)

THE LONE CANDIDATE LAW

The Lone Candidate Law is RA 8295, enacted June 6, 1997. Section 2 thereof provides the upon the expiration of the deadline for the filing of certificate of candidacy in a special election called to fill a vacancy in an elective position other than for President and Vice-President, when there is only one (1) qualified candidate for such position, the lone candidate shall be proclaimed elected to the position by proper proclaiming body of the COMELEC that he is the only candidate for the office and is thereby deemed elected.

Section 3 thereof also provides that the lone candidate so proclaimed shall assume office not earlier than the scheduled election day, in the absence of any lawful ground to deny due course or cancel the certificate of candidacy in order to prevent such proclamation.

VI. CAMPAIGN; ELECTION PROPAGANDA; CONTRIBUTIONS AND EXPENDITURES

Election campaign or partisan political activity refers to an act designed to promote the election or defeat of a particular candidate or candidates for public office. (Sec. 79, BP 881)

a. If done for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party, etc, it shall not be considered as election campaign or partisan political activity.

b. It shall be unlawful for any person or any party to engage in election campaign or partisan political activity except during the campaign period.

c. Members of the Civil Service to engage, directly or indirectly, in any electioneering or partisan political campaign.

A. Nomination of candidates

1. President, Vice-President and Senators not earlier than 165 before election date

2. Congressmen, provincial, city or municipal officials not earlier than 75 days before election day

B.Campaign period

1. President, Vice-President and Senators 90 days before election day

2. Congressmen, provincial, city and municipal officials 45 days before election day.

C.Lawful propaganda

1. Forms

2. Pamphlets, leaflets, cards, decals, stickers and written or printed materials not more than 8 inches by 14 inches

3. Handwritten/printed letters

4. Cloth, paper or cardboard, posters measuring, not more than 2 feet by 3 feet 3 by 8 ft. allowed in announcing at the site on the occasion of a public meeting or rally, may be displayed 5 days before the date of rally but shall be removed within 24 hours after said rally.

5. Paid print advertisements: page in broadsheets and pages in tabloids thrice a week per newspaper, magazine or other publication during the campaign period. (Sec. 4, RA 9006)

6. Broadcast Media(i.e., TV and radio) National Positions: 120 minutes for TV, 180 minutes for radio / Local Positions: 60 minutes for TV, 90 minutes for radio

7. Other forms of election propaganda not prohibited by the Omnibus Election Code and RA 9006, and authorized by the COMELEC.

Requirement

1. Any published or printed political matter or broadcast of election propaganda by television or radio for or against a candidate or group of candidates to any public office shall bear and be reasonably legible or audible words political advertisement paid for, followed by the true and correct name and address of the candidate or party for whose benefit the election propaganda was printed or aired.

2. If the broadcast is given free or charge by the radio or television station, it shall be identified by the word airtime for this broadcast was provided free of charge by followed by the true and correct name and address of the broadcast entity.

3. Print, broadcast or outdoor advertisements donated to the candidate or political party shall be printed, published, broadcast or exhibited without the written acceptance by the said candidate or political party. Such written acceptance shall be attached to the advertising contract and shall be submitted to the COMELEC. (Sec. 4, RA 9006)

D.Prohibited Campaign

1. Public exhibition of a movie, cinematograph or documentary portraying the life or biography of a candidate during campaign period.\

2. Public exhibition of a movie, cinematograph or documentary portrayed by an actor or media personality who is himself a candidate;

3. Use of airtime for campaign of a media practitioner who is an official of a party or a member of the campaign staff of a candidate or political party.

Scope

1. Prohibiting the posting of decals and stickers except in the common posting area authorized by the COMELEC is not valid (Adiong vs. COMELEC, 244 SCRA 272)

2. Mass media may report news relating to candidates, and mass media practitioners may give their opinion regarding candidates. (National Press Club vs. COMELEC, 207 SCRA 1)

E.Rallies

1.An application for permit for a rally shall not be denied except on the

ground that a prior written application for the same purpose has been

approved. A denial is appealable to the provincial election supervisor or

COMELEC. (Sec. 87, BP 881)

2.It is unlawful to give or accept transportation, food, drinks or things of

value within 5 hours before and after a public rally, before election day

and on election day. (Sec. 89 BP 881)

F. Prohibited donations

It is prohibited for any candidate, his spouse, relative within second degree of consanguinity or affinity, or representative to make any contribution for any structure for public use or for use of any religious or civic organization except the normal religious dues and payment for scholarships established and school contributions habitually made before the campaign period. (Sec. 104, BP 881)

G.Prohibited contributions

No political contribution shall be made by the following:

1.Public or private financial institutions

2.Public utilities and those who exploit natural resources

Thus, where an operator of a public utility disguised a contribution to a candidate for governor as loan, the promissory note is void: (halili vs. Court of Appeals, 83 SCRA 633)

3.Persons who hold contracts or sub-contracts to supply the government

with goods and services.

4.Persons granted franchises, incentives, exemptions or similar privileges by

the government

5.Persons granted loans in excess of P25, 000 by the government or any of

its subdivisions or instrumentalities

6.Schools which received grants of public funds of at least P100,000

7.Employees in the Civil Service or members of the Armed Forces.

8.Foreigners (Sec. 95 , Bp 881)

9.Corporations (sec. 36 (9), Corp. Code)

H.Equal Access to Media Time and Space

All registered parties and bonafide candidates shall have equal access to media time and space . The following guidelines may be amplified on by the COMELEC.

1.No franchise or permit to operate a radio or television shall be granted or

issued, suspended or cancelled during the election period.

2.Any mass media columnist, commentator, announcer, reporter, on-air

correspondent or personality who is a candidate for any elective public office or is a campaign volunteer for or employed or retained in any capacity by any candidate or political party shall be deemed resigned, if so required by their employers, or shall take a leave of absence from his work as such during the campaign. And that any media practitioner who is an official candidate of a political party or member of the campaign staff of a

candidate or political party shall not use his media time and space to favor any candidate or political party.

I.Limitation on expenses Sec. 13, RA 7166

1.Candidates

a.President and vice president P10 per voter

b.Other candidates P3 per voter in his constituency

cCandidate without political party P5 per voter

d.Party/organization and coalition participating in the party list

system P5 per voter

2.Political party and coalition P5 per voter in the constituency where it has

candidates. (sec. 13, RA 7166)

J.Statement of contributions and expenditures

1.Filing

a.every candidate and treasurer of political party shall file within 30 days after election day a statement of contributions and expenditures.

b.No persons elected shall assume office until he and his political party has filed the required statements

2.Penalties

a.First Offense administrative fine from P 1,000 to P30, 000

b.Subsequent offense

i.Administrative fine from P2,000 to P60, 000

ii.Perpetual disqualification to hold public office (Sec. 14,

RA 7166)

3.Effect of withdrawal

A candidate who withdraws his certificate of candidacy must still file a statement of contributions and expenditures, for the law makes no distinction. (Pilar vs. COMELEC, 245 SCRA 759)

VII. ELECTION; BOARD OF ELECTION INSPECTORS (BEI); WATCHERS

KINDS OF ELECTION

1.General election is one provided for by law for the election to offices throughout

the State, or certain subdivisions thereof, after the expiration of the full term of former officers.

2.Special Election is one provided for by law to fill vacancy in office before the expiration of the full term for which the incumbent was elected or one fixed by the COMELEC due to postponement or suspension of the election or the failure to elect.

3.Recall election is an election by means of which voters decide whether they should retain their local official or elect his replacement. (Claudio vs. COMELEC, 331 SCRA 388)

ELECTION PERIOD

Unless otherwise fixed by the COMELEC in special cases, the election period shall commence 90 days before the day of the day of the election and shall end 30 days thereafter.[Sec. 9, Art. IX C, PC]

DATE OF ELECTION

The regular election of the President, Vice-President, Senators and Members of the House of Representatives and local officials, except barangay officials, shall be on the second Monday of May once every three years. In accordance with the constitutional policy to synchronize elections, the regular election for national and local officials is now held simultaneously. (RA 7166) Under 6679, regular elections for barangay officials shall be held once every five years.

ELECTION OF SANGGUNIANG MEMBERS

1.For provinces with two or more legislative district the elective members of

Sangguniang Panlalawigan (Spn) shall be elected by legislative districts.

2.For provinces with only one legislative district the COMELEC shall divide

them into districts for purposes of electing the members of the SPn;

3.For cities in Metro Manila Area, Cebu City, Davao City or any other city with

two or more legislative district governed by Secs. 2 and 3 of RA 6686.

4.For municipalities in Metro Manila the COMELEC shall divide them into two

districts by barangay for purposes of electing members of the SB.

POSEPONEMENT OF ELECTION

When for any serious cause such as violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, and other analogous cases of such nature that the holding of a free, orderly and honest election should become impossible in any political subdivision, the COMELEC, motu propio or upon a verified petition by any interested party, and after due notice and hearing, whereby all interested parties are afforded equal opportunity to be heard, shall postpone the election therein. (Sec. 5, BP 881)

An election officer alone, or even with the agreement of the candidates, cannot validly postpone or suspend the election. (Basher vs. COMELEC, 330 SCRA 736). . . It is essential to the validity of the election that the voters have notice in some form, either actual or constructive, of the time, place and purpose thereof (Basher vs. COMELEC, supra)

A petition to postpone elections should be addressed to the COMELEC, subject to the remedy of review provided for in Art IX A Section 7.

In fixing the date of special elections the COMELEC should see to it that:

1.It should not be later than thirty (30) days after the secession of the cause of the

Postponement of suspension of the election or a failure to elect; and

2.It should be reasonably close to the date of the election not held, suspended or

Which resulted in the failure to elect.(Pangandaman vs. COMELEC, 319 SCRA 283)

A special election is not valid if notice of its date and of the transfer of the precincts was given less than a day before, since the voters were deprived of the opportunity to vote. (hassan vs. COMELEC, 264 SCRA 125)

FAILURE OF ELECTION

1.Sec.6 the OEC contemplates three instances when the COMELEC may declare a failure of election and call for the holding of a special election: (1) when thee election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud and other analogous cases, (2) when the election in any polling place has been suspended before the hour fixed by law for the closure of the voting; and (3) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect. (Soliva et al vs. COMELEC, GR No. 141723, April 20,2001)

2.The power to throw out or annul an election should be exercised with the utmost care and only under circumstances which demonstrate beyond doubt either that the disregard of the law had been so fundamental or so pertinent and continuous that it is impossible to distinguish what votes are lawful and what are unlawful, or to arrive at any certain result whatsoever, or that the great body of voters have been prevented by viiolence, intimidation and threats from exercising their franchise There is failure of elections only when the will of the electorate has been muted and cannot be ascertained. (Benito vs. COMELEC, GR No. 134913,January 19,2001)

3.A special election should be held if the ballot box in the precinct was burned.(Hassan vs. COMELLEC,264 SCRA 125)

4.The destruction of the copies of the election returns intended for the board of canvassers is not a ground for the declaration of failure of election as other copies of the returns can be used (Sardea vs. COMELEC,225 SCRA 374)

5.The fact that less than 25% of the registered voters voted does not constitute failure of election, since voting took place. (Mitmug vs. COMELEC,230 SCRA 54)

6.Lack of notice of the date and time of the canvass, fraud, violence, terrorism, and analogous causes, such as disenfranchisement of voters, presence of flying voters, and lack of qualifications of the members of the Board of Inspectors are not grounds for declaration of failure of election but for an election protest. (Borja vs. COMELEC,260 SCRA 604)

7.The fact that the names of some registered voters were omitted from the list of voters, strangers voted for some of the registered voters, a candidate was credited with less votes than he received, the control data of some election returns were filled up, the ballot boxes were brought to the municipal hall without padlock and seals, and that there was a delay in the delivery of election returns are not grounds for the declaration of failure of election. (Canicosa vs. COMELEC, 282 SCRA 512)

8.An election cannot be annulled because of the illegal transfer of a precinct less than 45 days before the election if the votes of those who were not able to vote will not alter the result. (Balindong vs. COMELEC, 260 SCRA 494)

9.There is no reglementary period for filing a petition for annulment of an election if there has as yet been no proclamation. (Loong vs. COMELEC, 257 SCRA 1)

10.The COMELEC may decide a petition to declare a failure of election en banc at the first instance, since it is not a pre-proclamation case or an election protest. (Borja vs. COMELEC, 260 SCRA 604)

In petitions to declare a failure of election on the ground of fraud, the COMELEC may conduct a technical examination of election documents and compare and analyze the signatures and fingerprints of the voters. (Loong vss. COMELEC,257 SCRA 1)

SPECIAL ELECTION TO FILL UP VACANCY

1.In case of permanent vacancy in Congress at least one year before the expiration of the term, the COMELEC shall hold a special election not earlier than 90 days after the occurrence of the vacancy.

2.A vacancy in the Senate will be filled up at the next regular election.(Section 4,RA 7166)

BOARD OF ELECTION INSPECTORS (BEI)

The Board of Election Inspectors shall be composed of a chairman and two members, all of whom are public school teachers.

If there are not enough public school teachers, teachers in private schools, employees in the civil service, or other citizens of known probity and competence may be appointed. (Section 13, RA 6646)

WATCHERS

Number

1.Official watchers

Every registered party or coalition of parties and every candidate is entitled to one watcher per precinct and canvassing counter.

Candidates for the local legislature belonging to the same party are entitled collectively to one watcher.

Six principal watchers from 6 accredited major political parties shall be recognized. (Section 26, 7166)

2. Other watchers

a. The accredited citizens arm is entitled to a watcher in every precinct.

b. Other civic organizations may be authorized to appoint one watcher in

every precinct. (Section 180, BP 881)

Important rights of watchers

1.All watchers

a. To stay inside the precinct

b. To inform themselves of the proceedings

c. To file a protest against any irregularity

d. To obtain a certificate of the number of votes cast for each candidate (Section 179, BP881)

2.Citizens Arm

To be given a copy of the election return to be used for the conduct of an unofficial count. (Section 1, RA 8045)

VIII. CASTING OF VOTES

1.The chairman of the Board of Election Inspectors should sign each ballot at the back. The omission of such signature does not affect the validity of the ballot.(Libanan vs HRET,283 SCRA 520) Under the rules prevailing during the 1997 Barangay Elections, the failure to authenticate the ballots shall no longer be cause for the invalidation thereof. (Malabaguio vs. COMELEC,346 SCRA 699)

2.A voter who was challenged on the ground that he has been paid for the vote or made a bet on the result of the election will be allowed to vote if he takes an oath that he did not commit the act alleged in the challenge. (Section 200,BP881)

3.An illiterate or physically disabled voter may be assisted by a relative by affinity or consanguinity within the fourth degree or any person of his confidence who belongs to the same household or any member of the Board of Election Inspectors. (Section 196, BP881)

4.It is unlawful to use carbon paper, paraffin paper or other means for making a copy of the contents of the ballot or to use any means to identify the ballot.(Sec. 195,BP881). A ballot prepared under such circumstances should not be counted. (Gutierrez vs. Aquino, Feb,26,1959)

ABSENTEE VOTING

1.Members of the Board of Election Inspectors and their substitutes may vote in the precinct where they are assigned. (Section 169, BP 881)

2.Absentee voting for President, V-president and Senators are allowed for members of the AFP, PNP, and other government employees assigned in connection with the performance of election duties to places where they are not registered. (Section 12, RA 7166)

RA NO. 9189 AN ACT PROVIDING FOR A SYSTEM OF OVERSEAS ABSENTEE VOTING BY QUALIFIED CITIZENS OF THE PHILIPPINES ABROAD

Sec. 5. Disqualification. The following shall be disqualified from voting under this Act:

a) Those who have lost their Filipino citizenship in accordance with Philippine laws;

b) Those who have expressly renounced their Philippine citizenship and who have pledge allegiance to a foreign country;

c) Those who have committed and are convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not less than one (1) year, including those who have committed and been found guilty of Disloyalty as define under Article 137 of the Revised Penal Code, such disability not having been removed by plenary pardon or amnesty: Provided, however, That any person disqualified to vote under this subsection shall automatically acquire the right to vote upon expiration of five(5) years after service of sentence; Provided further, That the Commission may take cognizance of final judgments issued by foreign courts or tribunals only on the basis or reciprocity and subject to the formalities and processes prescribed by the Rules of court on execution of judgments;

d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she execute, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/ she shall resume actual physical permanent residence in the Philippine not later than three(3) years from approval of his/her registration under this Act. Such affidavit shall also state that she/ he has no applied for citizenship in another country. Failure to return shall be cause for the removal of the name of immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia.e) Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority in the Philippines or abroad, as verified by the Philippine embassies, consulates or foreign service establishments concerned, unless such competent authority subsequently certifies that such person is no longer insane or incompetent.

SEC. 6 Personal Overseas Absentee Registration. Registration as an overseas absentee voter shall be done in person.

Qualified citizens of the Philippines abroad who failed to register under Republic Act No. 8189, otherwise known as The Voters Registration Act of 1996, may personally apply for registration with the Election Registration Board of the city or municipality where they were domiciled immediately prior to their departure from the Philippines, or with the representative of the Commission of the Philippine embassies, consulates and other foreign service establishments that have jurisdiction over the locality where they temporarily reside. Subject to guidelines herein provided, the Commission is hereby authorized to prescribe procedures for overseas absentee registration pursuant to the provisions of Republic Act No. 8189, whenever applicable, taking into strict consideration the time zones and the various periods and processes herein provided for the proper implementation of this Act. The embassies, consulates and other foreign service establishments shall transmit within five (5) days from receipt the accomplished registration forms to the Commission after which the Commission shall coordinate with the Election Officer of the city or municipality of the applicants stated residence for verification, hearing and annotation in the permanent list of voters.

All applications for the May 2004 elections shall be filed with the Commission not later than two hundred eighty (280) calendar days before the day of elections. For succeeding elections, the Commission shall provide for the period within which applications to register must be filed.

In the case of seafarers, the Commission shall provide a special mechanism for the time and manner of personal registration taking into consideration the nature of their work.

6.1 Upon receipt of the application for registration, the Election Officer shall immediately set the application for hearing, the notice of which shall be posted in a conspicuous place in the premises of the city or municipal building of the applicants stated residence for at least one (1) week before the date of the hearing. The Election Officer shall immediately furnish a copy of the application to the designated representatives of political parties and other accredited groups.

6.2 If no verified objection to the application is filed, the Election Officer shall immediately forward the application to the Election Registration Board, which shall decide on the application within one (1) week from the date of hearing without waiting for the quarterly meeting of the Board. The applicant shall be notified of the approval or disapproval of his/her application by registered mail.

6.3 In the event that an objection to the application is filed prior to or on the date of hearing, the Election Officer shall notify the applicant of said objection by registered mail, and closing therein copies of affidavits or documents submitted in support of the objection filed with the said Election Officer, if any. The applicant shall have the right to file his counter-affidavit by registered mail, clearly stating therein facts and defenses sworn before any officer in the host country authorized to administer oaths.

6.4 The application shall be approved or disapproved based on the merits of the objection, counter-affidavit and documents submitted by the party objecting and those of the applicant.

6.5 A Certificate of Registration as an overseas absentee voter shall be issued by the Commission to all applicants whose applications have been approved, including those certified as registered voters. The Commission shall include the approved applications in the National Registry of Absentee Voters.

6.6 If the application has been approved, any interested party may file a petition for exclusion not later than two hundred ten (210) days before the day of elections with the proper municipal or metropolitan trial court. The petition shall be decided within fifteen (15) days after its filing on the basis of the documents submitted in connection therewith. Should the court fail to render a decision within the prescribed period, the ruling of the Election Registration Board shall be considered affirmed.

6.7 If the application has been approved, the applicant or his authorized representative shall, within a period of five (5) days from receipt of the notice of this approval, have the right to file a petition for inclusion with the proper municipal or metropolitan trial court. The petition shall be decided within five (5) days after its filing on the basis of documents submitted in connection therewith.

Qualified citizens of the Philippines abroad, who h