Omnibus Election Code Reviewer

7/27/2019 Omnibus Election Code Reviewer

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ELECTION LAWS

Suffrage– the right and obligation of qualified citizens to vote in the election of certainnational and local of the government and in thedecisions of public questions submitted to thepeople. It includes within its scope: election,

plebiscite, initiative, referendum and recall.

Election– the means by which the peoplechoose their officials for a definite and fixed periodand to whom they entrust for the time being astheir representatives the exercise of the powers of the government, It involves the choice of selectionof candidates to public office by popular vote.

Plebiscite– a vote of the peopleexpressing their choice for against a proposed lawor enactment submitted to them. An election atwhich any proposed amendment to or revision of

the Constitution is submitted to the people fortheir ratification. A constitutional requirement osecure the approval of the people directlyaffected, before certain proposed changesaffecting local governments units may beimplemented.

Initiative– it is the process by which theregistered voters directly propose, amend laws,national or local, though an election called for thepropose. Amendments to the Constitution maylikewise be directly proposed by the people thoughinitiative.

Referendum- it is at he submission of alaw pass by the national or local legislative body tothe registered voters of an election called for thepurpose for their ratification or rejection.

Recall- it is a method by which a publicofficer may be removed from office during histenure or before the expiration of his term by avote of the people after registration of a petitionsinged by a required percentage of the qualifiedvoters.

Since the right of suffrage is a political andnot a natural right, it is within the power of thestate prescribe the manner in which such rightshall be exercised. Congress is mandated by theConstitution (Sec.2, Art. V):

To provide a system for securing the secrecyand sanctity of the ballot, and for absenteevoting by qualified Filipinos abroad, and

To design a procedure for the disabled andthe illiterate to vote without theassistance of other persons.

THE COMMISSION ON ELECTIONS

Composition, Qualifications, Appointment, Term of Office

The COMELEC is composed of a chairmanand six (6) Commission, The Chairman and theMembers 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 anyelective position in the immediatelypreceding election

majority thereof, including the Chairman shallbe members of the Philippines Bar whohave been engaged in the practice of lawfor at least 10 years (reason: COMELECexercises quasi-judicial powers)

The Chairman and Members are appointedby the president with the consent of thecommission on Appointment for the term seven(7) years without reappointment on a staggeredbasis to make the COMELEC a continuing and self-perpetuating body. Consequently, its members

would have the benefit of the experience andexpertise of the order members of theperformance of its functions, and makes forgreater responsibility for its policies and decisionsand serve as guarantee against arbitrary actionwhich is likely to occur in a body handlingpartisans questions.

A member appointment and designationsin temporary or acting capacity are not allowed topreserve its independence.

Disabilities, inhibitions\disqualifications

1. Shall not, during tenure, hold anyother office or employment

2. Shall not engage in the practice of profession

3. Shall not engage in activemanagement or control of any businesswhich in any ay may be affected by thefunctions of his office

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

Safeguards to insure the independence of the COMELEC

It is constitutionally created; may not beabolished by statute

It is expressly described as “independent”

It is conferred with certain powers andfunctions which cannot be reduced bystatute.

The chairman and members cannot beremoved except by impeachment.

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

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The chairman and members may not bereappointed or appointed in an actingcapacity.

The salaries of the chairman and members arerelatively high and may not be decreasedduring continuance in office.

The COMELEC enjoy fiscal autonomy.

The COMELEC may promulgate its ownprocedural rules, provided they do notdiminish, increase or modify substantiverights (though subject to disapproval by theSupreme Court)

The Chairman and Members are subject tocertain disqualifications calculated tostrengthen their integrity.

The COMELEC may appoint their own officialsand employees in accordance with CivilService Laws.

En Banc & Division Cases

SEC 3, ART IX-C “The COMELEC may siten banc or in two divisions, and shallpromulgate its rules of procedure in orderto expedite disposition of election cases,including pre-proclamation controversies. Allsuch election cases shall be heard anddecided in division, provided that motionsfor reconsideration of decision shall bedecided by COMELEC en banc”

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

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

The following cases must be decided inDivision before they may be heard en bnc onmotion for reconsideration:

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

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

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

The COMELEC en banc, however, maydirectly assume jurisdiction over petitions forcorrection of manifest errors in the tabulation ortallying of results (Ststement of votes) by theBoard of Canvassers, notwithstanding that thesame is a pre-proclamation comtroversy. Section5, Rule 27 of the 1993 Rules of the COMELECexpressly provides that pre-proclamationcontroversies involving correction of manifest

errors in the tabulation of results may be fileddirectly with the COMELELEC cen banc. (Torres vs.COMELEC,270 SCRA 583; Ramirez vs.COMELEC,270 SCRA 590)

The COMELEC en banc determines theexistence of probable cause.(Faelnar vs.

COMELEC,331 SCRA 429)

DECISIONS

ART IX-A, Section 7 “Eachcommission(COMELEC) shall decide by amajority vote of all its Members any case ormatter brought before it within sixty daysfrom date of its submission for decision orresolution. A case or matter is deemedsubmitted for decision or resolution uponthe filing of the last pleading, brief, or

memorandum required by the rules of theCommission or by the Commission itself.Unless otherwise provided by theCommission or by law; any decision, order,or ruling of each Commission may bebrought to the Supreme Court on certiorariby the aggrieved party within 30 days fromreceipt of a copy thereof.”

The COMELEC shall decide by a majorityvote of all its members in any case or matterbrought before it within 60 days from date of itssubmission for decision or resolution. Twomembers shall constitute a quorum for thetransaction of the official business of the Division.A case being heard by it shaa be decided with theunanimous concurrence ofc all threeCommissioners and its decision shall beconsidered a decision of the commission. If thisrequired number is not obtained, as when there isa dissenting opinion, the case may be appealed tothe Commission en banc, in which case the vote of the majority shall be the decision of theCommisssion.

The court holds that 2-1 decision renderedby the First Division was a valid decision under

ART IX-A ,Section 7 of the Constitution.Furthermore, the three members who voted toaffirm the First Division constituted a majority of the five members who deliberated and votedthereon en banc and their decision is also validunder the aforecited constitutional provisions.(Cua vs. COMELEC, 156 SCRA 587)

One who is no longer a member of theCOMELEC at the time the final decision orresolution is promulgated cannot validly take partin that resolution or decision,much more could hebe the ponente of the resolution or decision.(Ambil

vs. COMELEC, 344 SCRA 358)

RULES OF PROCEDURE

The COMELEC en banc may promulgate itsown rules concerning pleadinga and practicebefore it or before any of its offices. Such rules,however, shall not diminish,increase or modifysubstantive rights. The Rules of Court appliessuppletorily to proceedings before the COMELEC.(Paangarungan vs. COOMELEC,216 SCRA 522)

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CONSTITUTIONAL POWERS AND FUNCTIONS

Enforce and administer laws relative toconduct of elections

The regular courts have no jurisdiction toentertain a petition to enjoin the

construction of public works projects within45 days before an election.(Gallardo vs. Tabamo,218 SCRA 253)

Decide election contests involving regional,provincial and city officials

ELECTION CONTEST refers to the adversaryproceedings before which matters involvingthe title or claim to an elective office madebefore or after proclamation of thewinner,is settled whether or not thecontestant is claiming the office in dispute.

It is neither a civilk action nor crimianalproceeding;it is a summary proceeding of apolitical character. Its purpose is toascertain the candidate lawfully elected tooffice.(Javier vs. COMELEC,144 SCRA 194)

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

The provision of RA 6679 grantingappellate jurisdiction to the RTC overdecisions of MTCs in electoral casesinvolving elective barangay officials isunconstitutional. (Flores vs. COMELEC,184SCRA 484)

The COMELEC is the proper appellate courtclothed with jurisdiction to hear the appeal,which must first be filed wiyhin 5 days afterthe promulgation of the MTCsdecision(Antonio vs. COMELEC,315 SCRA62)

The election of SK are goverened by the

Omnibus Election Code. Any contestrelating to the election of the SK (includingthe chairman whether pertaining to theireligibility or the manner of their election iscognizable by MTCs,MTCCs, and MeTCs. Itis the proclamation which marks off the

jurisdiction of the courts from the jurisdiction of election officials. (Marquezvs. COMELEC, 313 SCRA 103)

The COMELEC has appellate jurisdictionover election protest cases involvingelective municipal officials decided by

courts of general jurisdiction. (Carlos vs.Angeles,346 SCRA 671)

Decide all questions affecting elections

The COMELEC has no jurisdiction overquestions involving the right to vote whichincludes qualifications and disqualificationsof voters, the right of a person to beregistered as voter, the right to cast hisvote, and other allied questions. Such

questions shall be decided by the courts.( Naciionalista Party vs. COMELEC, 84 Phil49)

Election contests involving elections of SK officials do not fall within section 252 of the OEC and paragraph 2,section ART.IX-Cof the Constitution and no law in effect

prioir tom the ratification of theconstitution has made the SK Chairman anelective barangay official. SK elections areunder the direct control and supervision of the DILG. (Ahman vs. Mirasol,276 SCRA501) Decisions/determinations made by theCOMELEC in the exercise of this power,being merely administrative(not quasi

judicial) in character, may be questioned inan ordinary civil action before the trialcourts.(Filipinas Engineering vs. Ferrer,135SCRA 25)

Deputize law enforcement agencies with theconcurrence of the President

Register political parties and accredit itscitizens arms

File petitions, investigate and prosecute

Recommend measures to improve electionlaws

Recommend the imposition of disciplinaryaction upon an employee it has deputizedfor violation of its order.

Since the COMELEC can recommend thatdisciplinary action be taken against anofficer it had deputized, idt can investigatean administrative charge against such anofficer to determine whether or not itshould recommend that disciplinary actioncan 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 orregulate the enjoyment or utilization of allfranchises or permits for the operation of transportation and other public utilities,media of communication or information, allgrants special privileges, or concessionsgranted by the Government or anysubdivision, agency or instrumentalitythereof, including any government-ownedor controlled corporation or its subsidiary.Such supervision or regulation shall aim toensure equal opportunity, time, and space

and the right to reply, including reasonableequal rates therefor, for public informationcampaigns and forums among candidatesin connection with the objective of holdingfree, orderly, honest, peaceful, and credibleelections.

The authority given to the COMELEC is tobe exercised ofr the purpose of ensuringfree, orderly,honest,peaceful.and credibleelections and only during the elecxtion

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period. Note that GOCCs are among thosethat may be supervised and regulated bythe COMELEC.

The SC upheld the validity of Section 11(b),RA 6646, prohibiting the sale odr donationof print space or airtime for politicaladvertisements, and the authority of the

COMELEC to procure print space (uponpayment of just compensation) and freeairtime for allocation to candidates.(Telecommunication and BroadcastAttorneys of the Philippines vs.COMELEC,289 SCRA 33)

An exit poll is a species of electoral surveyconducted by qualified individuals or groupsof individuals for the purpose of determiningthe probable result of an election byconfidentially asking randomly selectedvoters whom they have voted

for,immediately after they have officially casttheir ballot.(ABS-CBN Broadcastingcorporation vs. COMELEC,323 SCRA 811)

An absolute prohibition would beunreasonably restrictive,because iteffectively prevents the use of exit poll datanot only for election-day projections,but alsofor long term research. The COMELECconcern with the possible noncommunicative effect of exit polls-disorderand confusion in the voting centers- does not

justify a total ban on them. The holding of exit polls and the dissemination of theirresults through mass media constitute anessential part of freedom of speech and of the press. The reason behind the principle of ballot secrecy is to avoid vote buyingthrough voter identification (ABS-CBNBroadcasting Corporation vs. COMELEC)

The SC held that SEC 5.4 of the FairElection Act prohibiting publication of surveyresults 15 days immediately preceding anational election and 7 days before a localelection violates the constitutional rights of speech,expression,and the press because:

a. It imposes prior restraint on thefreedom of expression;

b. It is a direct and total suppression of the category of expression eventhough such suppression is only for alimited period; and

c. The governmental interest sought tobe promoted can be achieved bymeans other than the suppression of freedom of expression. (SocialWeather 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 correctan error because of the omission of amunicipality or an error in the name of amunicipality and does not include the powerto make a reappointment of legislativedistricts. (Montejo vs. COMELEC,242 SCRA415)

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

The COMELEC is merely authorized to adjustthe number of congressmen apportioned toan old province if a new province is createdout of it and does not authorize the COMELECto transfer municipalities from one legislative

district to another. (Montejo,supra)

Pardon violators of election laws.

Promulgate rulwes of procedure concerningpleadings and practice before it or any of itsoffices.

Submit report on how a previous elections wasconducted.

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 issueextraordinary writs of certiorari,prohibition andmandamus in aid of its exclusive appellate

jurisdiction.

Both the SC and the COMELEC haveconcurrent jurisdiction to issue writs of certiorari,prohibition, and mandamus overdecisions of trial courts of general jurisdiction inelection cases involving elective municipalofficials. The court takes jurisdiction first shallexercise exclusive jurisdiction over the case.(Carlos vs. Angeles,346 SCRA 571)

4. Summons parties to a controversy pendingbefore it5. Enforce and execute its decisions and orders6. Punish contempts provided for in the Rules of Courts.

The COMELEC has the power to cite for

contempt, but this power may be exercised onlywhile the COMELEC is engaged in theperformance of quasi-judicial functions and notadministrative functions.(Guevarra vs. COMELEC,104 PHIL 269 and Masangcay vs. COMELEC, 6SCRA 270)

7. Promulgate rules and regulationsimplementing the Election Code8. Exercise direct and immediate supervisionand control over officials required to performduties relative to the conduct of election.9. Prescribe forms to be used in the election

10. Procure any supplies, equjipment, materialsor services needed for the holding of election11. Prescribe the use or adoption of the latest

technological and electronic devices12. Carry out continuing and systematiccampaign to educate the public about elections13. Fix other reasonable periods for certain pre-

election requirements.Enlist non-partisan groups to assist.

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JUDICIAL REVIEW OF DECISIONS

Any decision, order or ruling of theCOMELEC en banc may be brought to the SC oncertiorari by the aggrieved party within 30mdays from receipt of the copy thereof. When the

Supreme Court reviews a decision of theCOMELEC, the court exercises extraordinary

jurisdiction, thus the proceeding is limited toissues involving grave abuse of discretionresulting in lack or excess of jurisdiction anddoes not ordinarily empower the court to reviewthe factual findings of the COMELEC. (Aratuc vs.COMELEC,88 SCRA 251)

The mode by which a decision, order orruling en banc may be elevated to the SC is thecivil action of certiorari under Rule 65 of the1964 Revised Rules of Court, now expressly

provided in Rule 64, 1997 Rules of CivilProcedure, as amended. (Ambil vs.COMELEC,344 SCRA358)

A special civil action for certiorari is theproper remedy to question any final order, rulingand decision of the COMELEC rendered in theexercise of its adjudicatory or quasi-judicialpowers.(Guerero vs. COMELEC,336 SCRA 458)

What is contemplated by the term “finalorders, rulings and decisions” of the COMELECreviewqable by certiorari by the Suprerme Courtas provided by law are those rendered in actionsor proceedings before the COMELEC and takencognizance of by the said body in the exercize of its adjudicatory (or quasi-judicial) powers. (Salvavs. Makalintal, 340 SRA 506)

COMELEC Resolution No. 2987 whichprovides for the rules and regulations governingthe conduct of plebiscite, is not issued pursuantto the COMELEC’s quasi-judicial functions butmerely as an incident of its inherentadministrative functions over the conduct of plebiscites, and any question pertaining to thevalidity of said resolution may be well taken inan ordinary civil action before the trial courts.(Salva ,supra)

The alleged nature or the COMELEC toimplement its resolution ordering the deletion of a candidate’s name in the list of qualifiedcandidates does not call for the exercise of theSC’s function of judicial review as it isundoubtedly administrative in nature, beyond

judicial interference.(Chavez vs. COMELEC, 211SCRA 315)

A resolution of the COMELEC awarding acontract for the supply of voting booths to aprivate party, as a result of its choice amongvarious proposals submitted in response to itsinvitation to bid, is not reviewable by certiorarias it is not order rendered in the legalcontroversy before it but merely as incident toits inherent administration functions over theconduct of elections. Any question arising fromsaid order may be taken in an ordinary civil

action. (Filipinas Engineering vs. COMELEC, 344SCRA 358)

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

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

VOTERS: QUALIFICATION AND REGISTRATION

Qualification for Suffrage

Filipino citizenship- it may be by birth ornaturalization.

Age- a person may be registered as a voter

although he is less than 18 years at the timeof registration if he will be at least 18 on theday of election.

Residence- at least 1 year in the Philippines, andat least 6 months where he proposes to voteimmediately preceding the election. Anyperson who, on the days of registration maynot have been reached the required period of residence but who, on the day of electionshall possess such qualification, may registeras voter.

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

Any person who temporarily resides inanother city municipality or country solely byreason of occupation, profession, employment in

public or private service, educational activities,work in the military or naval reservations withinthe Philippines, service in the AFP, PNP orconfinement or detention in governmentinstitutions, shall not deemed to have lost hisoriginal residence. (Sec. 9, RA 8189)

In election cases, the Supreme Court treatsdomicile and residence and residence assynonymous terms. In order to acquire a newdomicile 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. Theresidence at the place chosen for the new domicilemust be actual. (Romualdez vs. RTC,226 SCRA406)

Disqualifications

1. Any person sentenced by the final judgment to suffer imprisonment for notless than one year.

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2. Any person adjudged by the final judgmentof having commit (a) any crime involvingdisloyalty to the government or (b) anycrime against national security (c) firearmslaws.

3. Insane or incompetent persons as declaredby competent authority.

Removal of disqualification for conviction

Plenary pardon

Amnesty

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

System of Continuing Registration

The personal filing o application of registration of voters shall be conducted daily inthe office of the Election Office during regularoffice hours. No registration shall, however, beconducted during the period starting 120 daysbefore a regular election and 90 days before aspecial 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 specialregistration: “Petitioners were not denied theopportunity to avail of the continuing registrationunder RA 8189..the law aids the vigilant and notthose who slumber on their rights…

“In a representative democracy the right of suffrage, although afforded a prime niche in thehierarchy of right embodied in the fundamentallaw., ought to be exercised within the properbounds frames and framework of the Constitutionand must properly yield to pertinent laws skillfullyenacted by the Legislature…”

“The right of suffrage ardently invoked by

herein petitioners is not at all absolute…theexercise of suffrage, as the enjoyment of all other

rights subject to existing substantive andprocedural requirement embodied in ourConstitution, statute books and other repositoriesof law.” (AKBAYAN – Youth et al. vs. COMELEC GRNo. 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, RA8189)

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 applicationwas disapprove by the ElectionRegistration Board or whose namewas 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 cityor municipality

ii. Representative of politicalparty

iii. Election Officer (Sec. 39, RA8189)

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

3. Period for Filing

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

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

4. Procedure

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

iii. Each petition shall refer only toonly one precinct. (Sec. 35, RA8189)

iv. Noticei. Parties to be notified

5. Inclusion – Election Registration Boardi. ii Exclusion –

6. Election Registration Board7. Challenged voters [Sec. 32(b), RA 8189]8. Manner9.

1. Notice stating theplace day and hour of hearing shallbe served through any of thefollowing means:

10. Registered mail

ii. Personal deliveryiii. Leaving copy in possession of

sufficient discretion inresidence.

iv. Posting in city hall or municipalhall and two other

conspicuous places in the city ormunicipality at least 10 daysbefore the hearing (Sec. 32(b),RA 8189)

• Any voter, candidate or political partyaffected may intervene. (Sec. 32c, RA8189)

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

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• Decision cannot be rendered on stipulationof 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 COMELECmay annul a list of votes which was notprepared in accordance with RA 8189or whose preparation was affected withfraud, bribery, forgery, impersonation,intimidation, force or other similarirregularity or statistically improbable.

2. No list of voters shall be annulled within60 days before an election (See. 33, RA8189)

The annulment of the list of voters shall not

constitute a ground for a pre-proclamationcontroversy. (Ututalum vs. COMELEC, 181 SCRA335)

When an assailed order had been issuedpursuant to COMELEC’s administrative powers inthe absence of any finding of grave abuse of discretion in declaring a precinct as non – existent,said order shall stand, judicial interference beingunnecessary and uncalled for… The sacred right of suffrage guaranteed by the Constitution is nottampered when a list of fictitious voters isexcluded from an electoral exercise. (Sarangani

vs. COMELEC, 334 SCRA 379)

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

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

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

List of voters refers to an enumeration of namesof registered voters in a precinct duly certified bythe Election Registration Board for use in theelection.

Book of voters refers to the compilation of allregistration 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 atthe back thereof. Failure to so authenticate shallbe noted in the minutes of the BEI and shallconstitute an election offense punishable underSections 263 and 264 of the OEC.

IV. POLITICAL PARTIES AND PARTY – LIST SYSTEM

Political party or party when used in theOEC means an organized group of personspursuing the same ideology, political ideas orplatforms of government and includes its branches

or divisions. A political party may refer to a localregional or national party existing and dulyregistered and accredited by the COMELEC. Toacquire juridical personality, qualify foraccreditation, and to be entitled to the rights of political parties, a political party must beregistered with the COMELEC. The followingpolitical parties cannot be registered.

1. Religious sects2. Those which seeks to achieve their

goals through unlawful means3. Those which refuse to adhere to the

Constitution4. Those that are supported by any foreign

government

GROUNDS FOR CANCELLATION OFREGISTRATION

1. Accepting financial contributions from

foreign governments or their agencies (forpartisan election purposes.) (Sec.2(5), ArtIX – C, PC)2. It is a religious sect or denomination,organization or association organized forreligious purposes.

It advocates violence or unlawfulmeans to seek its goal

It is a foreign party or organizationIt violates or fails to comply with laws,

rules and regulations relating to electionsIt declares untruthful statements in its

petitionIt has ceased to exist for at least one

year , and8. Fails to participate in the last twopreceding elections, or fails to obtain atleast 2% of the votes cast under the party –list system in the two preceding electionsfor the constituency in which it wasregistered.

• A party which fails to obtain at least10% of the votes cast in theconstituency in which it nominatedcandidates in the election nextfollowing its registration shall forfeit itsregistration.

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

The Party – List System, is a mechanismof proportional representation in the election of representatives to the House of Representatives,from national, regional and sectoral parties,organizations and coalitions thereof registeredwith the COMELEC. The Party – list system wasdevised to replace the reserve seat system – the

very essence of the party – list system isrepresentation by election. (Veterans FederationParty vs. COMELEC, 342 SCRA 244)

GUIDELINES FOR SCREENING PARTY LISTPARTICIPANTS

1. The political party, sector, organizationmust represent the marginalized andunderrepresented groups identified inSec. 5 of RA 7941. majority of its

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membership should belong to themarginalized and underrepresented;

Proportional representation refers to therepresentation of the marginalized andunderrepresented as exemplified by theenumeration in Sec/ 5 of the law,namely; labor peasant, fisherfolk, urban

poor, indigenous cultural communities,elderly,handicapped, women youth,veterans, overseas workers andprofessionals. The party – listorganization or party must factually andtruly represent the marginalized andunderrepresented constituenciesmentioned in Sec. 5 .(ang bagongBayani – 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 theConstitution, they must comply with thedeclared statutory policy of “Filipinocitizens belonging to marginalized andunderrepresented sectors to be electedto the House of Representatives. “Thus,they must show that they represent theinterest of the marginalized andunderrepresented;

Political parties, even the major ones, mayparticipate in the party – list elections, except forpurposes of May 11, 1998 elections. The requisitecharacter of these organizations must beconsistent with the purpose of the party – listsystem, as laid down in the Constitution and RA7941 . . .

Under the Constitution and RA 7941,provide respondents cannot be disqualified fromthe party list elections, merely on the ground thatthey are political parties. Sec. 5 Art. VI of theConstitution provides that members of the Houseof Representatives may be elected through a party– list system of registered national, regional andsectoral 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 LaborParty, et al vs. COMELEC, et al. GR No. 147589,

June 26, 2001)

3. That religious sector may not berepresented in the party – list system,except that priest, imam or pastorsmay be elected should they representnot heir religious sect but theindigenous community sector.

4. A party or an organization must not be

disqualified under Sec. 6, RA 7941;

5. The party organized must not beadjunct of, or a project organized or anentity funded or assisted by, thegovernment;

6. The party, including its nominees mustcomply with the qualificationrequirements of Sec. 9, RA 7941 asfollows: No person shall be nominated

as party list representative unless heis:

a. natural – born – citizen of thePhilippines

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 torepresent for at least 90 dayspreceding the day of the election;and

f. At least 25 years of age on the dayof the election. In case of a nomineeof the youth sector, at least be 25but not more than 30 years of ageon the day of the election. Any

youth sectoral representative whoattains the age of 30 during histerm shall be allowed to continue inoffice until the expiration of histerm.

7. Not only the candidate party ororganization must representmarginalized and underrepresentedsectors, so also must its nominees;

8. While lacking a well – defined politicalconstituency, the nominee mustlikewise be able to contribute to theformation and enactment of appropriate legislation that will benefitthe nation as a whole.

The parameters of the Filipino Party – ListSystem are: (1) the twenty percentallocation, (2) the two percentthreshold; (3) the three seat limit; and(4) proportional representation.

• The Constitution makes the numberof district representatives thedeterminant in arriving at the numberof seats allocated for party listlawmakers, a formulation which meansthat any increase in the number of district representatives, an as may beprovided by law, will necessarily resultin a corresponding increase in thenumber of party – list seats . . . ..

• Sections 5 (2), Art. VI of theConstitution is not mandatory, it merelyprovides a ceiling for party – list seatsin Congress . . Obtaining absoluteproportional representation is restrictedby the three-seat-per-party limit to amaximum of two additional slots . .

• Under the Niemeyer formula, thenumber of additional seats to which aqualified party would be entitled isdetermined by multiplying theremaining number of seats to beallocated by the total number of votesobtained by that party and dividing the

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product by the total number of votesgarnered by all the qualified parties.

The Niemeyer formula, while no doubtsuitable for Germany, finds no application in thePhilippine setting because of our three seat limitand the non – mandatory character of the twentypercent allocation. (Ang Bagong Bayani –OFW

Labor Party, et al vs. COMELEC, et al. GRNo.147589, June 26, 2001)

V. CANDIDATES AND CERTIFICATES OFCANDIDACY

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

1. President and Vice President2. Senators3. Congressmen – District and Party –

List Representatives

B. Local – Sec.39, Local Government CodeQualifications prescribed by law arecontinuing requirements and must be possessedfor the duration of the officer’s active tenure. Onceany of the required qualifications is lost, his title tothe office may be seasonably challenged. (Frivaldovs. COMELEC, 174 SCRA 245 and Labor vs.COMELEC, 176 SCRA 1)

ResidenceIn Marcos vs. COMELEC, 248 SCRA 300, the

Supreme Court upheld the qualification of IRMarcos despite her own declarations in hercertificate of candidacy that she had resided in thedistrict for only seven months because of thefollowing:

1. A minor follows the domicile of hisparents; Tacloban became IRMsdomicile of origin by operation of lawwhen her father brought the family toLeyte;

2. Domicile of origin is lost only whenthere is actual removal or change of domicile, a bonafide intention of abandoning the former residence andestablishing a new one, and acts which

correspond with the purpose; in theabsence of clear and positive proof of the concurrence of all these, thesedomicile of origin should continue;

3. The wife does not automatically gainthe husband’s domicile because theterm “residence” in Civil Law does notmean the same thing in Political Law,when IRM married Marcos in 1954, shekept her domicile or origin and merelygained a new home, not a domiciliumnecessarium;

4. Even assuming that she gained a new

domicile after her marriage andacquired the right to choose a new oneonly after her husband died, her actsfollowing her return to the countryclearly indicate that she chose

Tacloban, her domicile of origin, as herdomicile of choice.

• In Aquino vs. COMELEC, 248 SCRA 400, theSupreme Court held that Agapito Aquino failedto prove that he had established not just

residence but domicile of choice in Makati. Inhis certificate of candidacy, he indicated thathe was a resident of San Jose Concepcion,

Tarlac for 52 years, he was a registered voterof the same district, his birth of certificateplaces 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 bythe facts of the case.

• When the Constitution speaks of residence the word should beunderstood, consistent with Webster, tomean actual, physical and personalpresence in the district that a candidateseeks to represent

• The original concept of domicile, which arosefrom American jurisprudence was not intendedto govern political rights, it was designed to

resolve the conflict of laws between or amongstate where a decedent may have lived forvarious reasons, for the purpose of determining which law was applicable asregards his estate . . .

Applying the concept of domicile indetermining residence as a qualification for anelective office would negate the objective behindthe residence requirement set forth under thelaw . . . (Domino vs. COMELEC 310 SCRA 546)

The place where the party actually orconstructively has his permanent home, where he,

no matter where he may found at any given time,eventually intends to return and remain, i.e., hisdomicile, is that to which the Constitution referswhen it speaks of residence for the purposes of election law . . .

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

The rationale of requiring candidates tohave a minimum period of residence in the area inwhich they seek to be elected is to prevent thepossibility of a stranger or newcomerunacquainted with the conditions and needs of acommunity and not identified with the latter fromseeking an elective office to serve that community. . .

The classification of an area as a highlyurbanized or independent component city, for thatmatter, does not completely isolate its residents,politics, commerce and other businesses from theentire province, and vice versa, especially whenthe city is located at the very heart of the provinceitself . .

The residence requirement is rooted in thedesire that officials of districts or localities areacquainted not only with the metes and bounds of their constituencies but, more important, with theconstituents themselves, and a very legalistic,academic and technical approach to the residentrequirement does not satisfy this simple, practicaland common sense national for the residencerequirement. (Torayna vs. COMELEC 337 SCRA574)

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Philippine citizenship

The lost citizenship may be reacquiredunder Sec. 1 of RA 2630, which provides that anyperson who had lost his Philippine citizenship byrendering service to, or accepting commission in,

the Armed Forces of the United States, or afterseparation from the Armed Forces of the UnitedStates, acquired United States citizenship bytaking an oath to the Republic of the Philippinesand registering the same with Local Civil Registryin the place where he resides or last reside in thePhilippines. The said oath of allegiance shallcontain a renunciation of any other citizenship.(Bengson III vs. HRET, et al. GR No. 142840, May7, 2001)

Repatriation results in the recovery of theoriginal nationality. This means that a naturalized

Filipino who lost his citizenship will be restored tohis prior status as a naturalized Filipino citizen. Onthe other hand, if he was originally a natural-borncitizen before he lost his Philippine citizenship, hewill 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 competentauthority insane or Incompetent

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

1. Insurrection or rebellion

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

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

C. A permanent resident to or immigrant toforeign country Unless he waives such

status (Sec. 68, BP 881)

D. Removal; Insanity or incompetence –declaration of removal by competentauthority

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

Grounds under the Local Government Code –Sec. 40

A. Those sentenced by final judgment for anoffense involving moral turpitude or anoffense punishable by imprisonment for atleast one year, within two years afterservice of sentence.

B. Those removed from office as a result of anadministrative case.

An elective local official who was removedfrom office prior to January 1, 1992 is not

disqualified from running for electivelocal office (Grego vs. COMELEC, 274 SCRA481)

C. Those convicted by final judgment forviolating his oath of allegiance to theRepublic.

D. Those with dual citizenship--The phrase“dual citizenship” in RA 7160, Sec. 40 (d)and RA 7854, Sec. 20 must be understoodas referring to “dual allegiance.”Consequently, persons with mere dualcitizenship do not fall under thisdisqualification. For candidates with dualcitizenship, it should suffice if, upon thefiling of their certificates of candidacy, theyelect Philippine citizenship to terminatetheir status as persons with dual citizenshipconsidering that their condition is theunavoidable 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 fleeafter conviction to avoid punishment, butlikewise who, after being changed, flee toavoid prosecution. (Marquez vs. COMELEC,243 SCRA 538)

G. Permanent residents in foreign country orthose who have the right to reside abroadand 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 officialsmust be taken to refer to the right to be elected aswell as the right to serve in the same electiveposition. Consequently, it is not enough that anindividual has served three consecutive in anelective local office, he must also have beenelected 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 thedisqualification: (1) the official concerned hasbeen elected for three consecutive terms in thesame local government post and (2) that he hasfully served three consecutive terms . . .

A proclamation subsequently declared voidis no proclamation at all and while a proclaimedcandidate may assume office on the strength of

the proclamation of the Board of Canvassers he isonly a presumptive winner who assumes officesubject to the final outcome of the election protest. .

Voluntary renunciation of a term of officedoes not cancel the renounced term in thecomputation of the three term limit; converselyinvoluntary severance from the office for anylength of time short of the full term provided by

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law amounts to an interruption of continuity of service. (Lonzanida vs. COMELEC, 311 SACRA 602)

1. Under the Revised AdministrativeCode – Municipal Office

• Ecclesiastics (Pamil vs. Teleron, 56 SCRA 413)

• Persons receivingcompensation from provincial ormunicipal funds

• Contractors for public worksof the municipality

2. Under the Lone candidate Law – RA8295

Any elective official who has resignedfrom his office by accepting an

appointive office to become vacantdue to his resignation; and

Any person who, directly or indirectlycoerces, bribes, threatens,harasses, intimidates or actuallycauses, inflicts or produces anyviolence, injury, punishment,torture, damage, loss ordisadvantages to any person orpersons aspiring to become acandidate or that of the immediatemember of his family, his honor or

property that is meant to eliminateall other potential candidates.

Certificates of Candidacy

No person shall be eligible for any electivepublic unless he files a sworn certificate of candidacy within the period fixed by the OmnibusElection Code.

Deadline

Certificate of candidacy must be filed not

later than the day before the date for thebeginning of the campaign period. (Sec. 7,RA 7166)A certificate filed beyond the deadline isnot valid. (Gador vs. COMELEC, 95 SCRA431)

Prohibition against multiple candidacies

A person who files a certificate of candidacy for more than one office shouldbe eligible for any of them. (Sec 73, BP881)

Before the deadline for filing certificates hemay withdraw all expect one, declaringunder oath the office for which he desiresto 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 beannulled because of formal defects in hiscertificate, such as held of oath (Guzmanvs. Board of Canvassers, 48 Phil 211)

Name

A candidate shall use his baptismal nameor full name, the name registered with thecivil registrar or any other name allowed bylaw.

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

When two or more candidates for the sameoffice 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, 5copies, not later than 90 days before dateof election.

For Members of the House of Representatives:

Provincial legislative districts – ProvincialElection Supervisor of the Provinceconcerned

NCR legislative districts – RegionalCOMELEC Directors

Legislative districts in cities outside NCR –City Election registrar concerned

For provincial offices – Provincial ElectionSupervisor 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 5copies not later than 45 days before theelection.

The certificate of candidacy shall be filedby the candidate personally or his dulyauthorized representative. No certificate of candidacy shall be filed or accepted bymail, telegram or facsimile.

The evident purpose of the law in requiringthe filing of certificate of candidacy and infixing the time limit therefore are; (1) toenable the voters to know, at least sixtydays before the regular election, thecandidates among whom they are to makethe choice, and (2) to avoid confusion andinconvenience in the tabulation of thevotes to the duly registered candidates,there might be as many persons voted for

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as there are voters, and votes might becast even for unknown or fictitious persons,as mark to identify the votes in favor of acandidate for another office in the sameelection. (Miranda vs. Abaya, 311 SCRA617)

Duty of COMELEC

Subject to its authority over nuisancecandidates and its power to deny duecourse or cancel a certificate of candidacy,the rule is that the COMELEC shall haveonly the ministerial duty to receive andacknowledge receipt of the certificates of candidacy. (Sec. 78, BP 881)

Effect Filing

An appointive public official is consideredresigned upon filing of his certificate. (Sec.

66, BP 881;Sanciangco vs. Rono, 137, SCRA671).This includes an employs of a GOCCorganized under the Corporation Code(Without original charter), since the lawmakes no distinction. (PNOC – EDC vs.NLRC, 222 SCRA 831)

Any elective official, whether national orlocal who has filed a certificate of candidacy for the same or any other officeshall not be considered resigned fromoffice. (sec. 26, COMELEC Resolution No.3636, Rules and Regulations ImplementingRA 9006)

Withdrawal of Certificate of Candidacy

Form – written declaration under oath. Therewas no withdrawal of candidacy for theposition of mayor where the candidate,before the deadline for filing certificates of candidacy, personally appeared in theCOMELEC office, asked for his certificate of candidacy and intercalated the word “vice”before the word mayor and the followingday wrote the election registrar saying thathis 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 theoffice of board member was filed by hisparty, and the said party had withdrawnthe nomination which withdrawal wasconfirmed by the candidate under oath,there was substantial compliance with Sec.73. His filing under oath within thestatutory period of his individual certificatefor candidacy for the separate office of mayor was, in effect, a rejection of the

party nomination on his behalf for theoffice 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, acandidate dies, withdraws or is disqualified,he may be substituted by a personbelonging to his party not later than the

mid – day of election. Said certificatemay be filled with any board of electioninspectors in the political subdivision wherehe is an electorate of the country, with theCOMELEC. (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 beannulled after the election. Suchtechnicality of the original candidate’swithdrawal of his certificate of candidacycannot be used to override the people’s willin favor to the substitute candidate. Thelegal requirement that the withdrawal beunder oath will be held to be merelydirectory and the candidate’s failure toobserve the requirement is considered aharmless error. Hence the bona fidecertificate of the substitute candidatecannot be assailed. The votes in his favor

should be counted. (Villanueva vs.COMELEC, 140 SCRA 352)

In case of valid substitutions after theofficial ballot have been printed, the votescast for the substituted candidates shall beconsidered as many votes but shall notinvalidate the whole ballot. For thispurpose, the official ballots shall providespaces where the voters may write thename of substitute candidates if they arevoting for the latter. (See. 12, RA 9006)

There is nothing in the Constitution orstatute which requires as conditionprecedent that a substitute candidate musthave been a member of the partyconcerned for a certain period of timebefore he can be nominated as such.(Sinaca vs. Mula, 315 SCRA 266)

A valid certificate of candidacy is likewisean indispensable requisite in the case of asubstitution of a disqualified candidateunder the provisions of Sec. 77 of theElection Code . . . The concept of a

substitute presupposes the existence of theperson to be substituted, for how can aperson take the place of somebody whodoes not exist or who never was...

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

Code . . . .

While Sec. 78 of the Election Codeenumerated the occasion where acandidate may validly substitute there isno mention of the case where a candidateis excluded not only by disqualification butalso by denial and cancellation of hiscertificate of candidacy (Miranda vs. Abaya,311 SCRA 617)

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In case of valid substitutions after theofficial ballots have been printed, the votescast for the substituted candidates shall beconsidered as stray votes but shall notinvalidate the whole ballot. Sec. 12, RA9006. amending Sec. 12 of RA 8436)

DISQUALIFICATION OF CANDIDATES

1. Grounds

Violation of Omnibus Election Code – Sec. 68

Giving money or other materialconsideration to influence voters orpublic officials performing electoralfunctions

Committing acts of terrorism toenhance his candidacy

Spending in his election campaign inexcess of the amount allowed by

the CodeSoliciting, receiving or making anyprohibited contribution

Violations of Secs. 80, 83, 85, 86 and261, paragraphs d, e, k, v and cc,sub-paragraph 6.

Nuisance candidate – Sec. 69

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

Falsity of material representation incertificate of candidacy. – Sec. 78

The COMELEC has jurisdiction over a petition todisqualify a candidate for congressman forineligibility before he has been proclaimed and hasassumed office (Marcos vs. COMELEC, 248 SCRA300; Aquino vs. COMELEC, 248 SCRA 400)

2. Procedure for disqualification of candidates

The petition shall be filed by anyregistered candidate for the sameOffice within 5 days from the last dayof filing of certificates of Candidacy.(Secs. 5a and 7, RA 6646)

Under the election laws and theCOMELEC Rules of Procedure, anyvoter may file a petition to disqualifya candidate on grounds provided by

law. (Torayno vs.COMELEC, 337 SCRA574)

The fact that no docket fee was initiallypaid is not fatal. The Procedural defect ascured by the subsequent payment of thedocket fee. (Sunga vs. COMELEC, 228 SCRA76)

A petition filed after the election is filed outof time. (Loong vs.COMELEC, 216 SCRA769)

Since the filing by facsimile transmission isnot sanctioned and a facsimile copy is notan original pleading, a petition fordisqualification should be deemed filedupon the filing of the original petition.(Garvida vs. Sales, 271 SCRA 764)

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

The COMELEC may motu propio refuseto give due course or cancel acertificate of candidacy. (Sec. 69, BP881)

The proceeding shall be summary.

(Nolasco vs. COMELEC, 275 SCRA762)

The COMELEC can decide a disqualificationcase directly without referring it to its legalofficers for investigation. (Nolasco, supra)

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

EFFECTS OF DISQUALIFICATION CASE

After final judgment -Any candidate whohas been declared by final judgment to bedisqualified shall not be voted for, and the votescast for him shall not be counted.

Before final judgment – If for any reason acandidate is not declared by final judgment beforean election to be disqualified and he is voted forand receives the winning number of votes in suchelection the Court or Commission shall continuewith the trial and hearing of the action, inquiry orprotest and, upon motion of the complainant orany intervenor, may, during the tendency thereof,

order the suspension of the proclamation of suchcandidate whenever the evidence of guilt isstrong. (Sec. 6, RA 6646)

The purpose of a disqualificationproceeding is to prevent the candidate fromrunning or, if elected, from serving, or toprosecute him for violation of election laws. Thefact that a candidate has been proclaimed and hadassumed the position to which he was electeddoes not divest the COMELEC of authority and

jurisdiction to continue the hearing and eventuallydecide the disqualification. The COMELEC should

not dismiss the case simply because therespondent has been proclaimed. (Sunga vs.COMELEC, 288 SCRA 76 and Lonzanida vs.COMELEC, 311 SCRA 617)

Sec. 6 of RA 6616 authorizes thecontinuation of proceedings for disqualificationeven after the elections if the respondent has notbeen proclaimed. (Perez vs. COMELEC, 317 SCRA641)

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A disqualification case may have twoaspects, the administrative, which required only apreponderance of evidence to provedisqualification, and the criminal, whichnecessitates proof beyond reasonable doubt toconvict.

There is no provision in RA 6646 that treats

of a situation where the complaint fordisqualification is filed after the election. . . .

Second paragraph of paragraph 2 of Res.No. 2050 provides that where a complaint is filedafter the election but before proclamation, as inthis case, the complaint must be dismissed as adisqualification case but shall be referred to theLaw Department for preliminary investigation.

Why there is a difference between apetition for disqualifications before and after theelection proceeds from the fact that before the

electorate and those who vote for the candidateassume the risk that should said candidate bedisqualified after the election, their votes would bedeclared stray or invalid votes and that would notbe true in the case of one filed after the electoratehas already voted . . . (Bagatsing vs. COMELEC,320 SCRA 817)

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

The use of the word “may”, indicates thatthe suspension of the proclamation is merelydirectory and permissive in nature and operates toconfer discretion. What is made mandatory is thecontinuation of the trial and hearing of the action,inquiry or protest. Since the suspension of theproclamation is merely permissive, theproclamation of a candidate is valid, if theCOMELEC did not suspend his proclamation.(Grego vs. COMELEC, 274 SCRA 481)

Under the same provision, interventionmay be allowed in proceedings for disqualificationeven after election if there has yet no final

judgment rendered. (Mercado vs. Mazano, 307SCRA 630)

Where the votes cast for a nuisancecandidate whose disqualification had not yetbecome final on election day were talliedseparately, they should be counted in favor of thepetitioner. (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 thefiling of certificate of candidacy in a specialelection called to fill a vacancy in an electiveposition other than for President and Vice-President, when there is only one (1) qualifiedcandidate for such position, the lone candidateshall be proclaimed elected to the position byproper proclaiming body of the COMELEC that heis the only candidate for the office and is therebydeemed elected.

Section 3 thereof also provides that thelone candidate so proclaimed shall assume officenot earlier than the scheduled election day, in theabsence of any lawful ground to deny due courseor cancel the certificate of candidacy in order toprevent such proclamation.

VI. CAMPAIGN; ELECTION PROPAGANDA;CONTRIBUTIONS AND EXPENDITURES

Election campaign or partisan politicalactivity refers to an act designed to promote theelection or defeat of a particular candidate orcandidates for public office. (Sec. 79, BP 881)

a. If done for the purpose of enhancingthe chances of aspirants for nomination forcandidacy to a public office by a political

party, etc, it shall not be considered aselection campaign or partisan politicalactivity.

b. It shall be unlawful for any personor any party to engage in electioncampaign or partisan political activityexcept during the campaign period.

c. Members of the Civil Service toengage, directly or indirectly, in anyelectioneering or partisan politicalcampaign.

A. Nomination of candidates

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

2. Congressmen, provincial, city or municipalofficials – not earlier than 75 days beforeelection day

B. Campaign period

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

2. Congressmen, provincial, city andmunicipal officials – 45 days before electionday.

C. Lawful propaganda

1. Forms

2. Pamphlets, leaflets, cards, decals, stickersand written or printed materials not morethan 8 ½ inches by 14 inches

3. Handwritten/printed letters

4. Cloth, paper or cardboard, postersmeasuring, not more than 2 feet by 3 feet3 by 8 ft. allowed in announcing at the siteon the occasion of a public meeting orrally, may be displayed 5 days before thedate of rally but shall be removed within 24hours after said rally.

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5. Paid print advertisements: ¼ page inbroadsheets and ½ pages in tabloids thricea week per newspaper, magazine or otherpublication 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: 60minutes for TV, 90 minutes for radio

7. Other forms of election propaganda notprohibited by the Omnibus Election Codeand RA 9006, and authorized by theCOMELEC.

Requirement

1. Any published or printed political matter orbroadcast of election propaganda bytelevision or radio for or against a

candidate or group of candidates to anypublic office shall bear and be reasonablylegible or audible words “politicaladvertisement paid for,” followed by thetrue and correct name and address of thecandidate or party for whose benefit theelection propaganda was printed or aired.

2. If the broadcast is given free or charge bythe radio or television station, it shall beidentified by the word “airtime for thisbroadcast was provided free of charge by”followed by the true and correct name andaddress of the broadcast entity.

3. Print, broadcast or outdoor advertisementsdonated to the candidate or political partyshall be printed, published, broadcast orexhibited without the written acceptanceby the said candidate or political party.Such written acceptance shall be attachedto the advertising contract and shall besubmitted to the COMELEC. (Sec. 4, RA9006)

D. Prohibited Campaign

1. Public exhibition of a movie,cinematograph or documentary portrayingthe life or biography of a candidate duringcampaign period.\

2. Public exhibition of a movie,cinematograph or documentary portrayedby an actor or media personality who ishimself a candidate;

3. Use of airtime for campaign of a mediapractitioner who is an official of a party or amember of the campaign staff of a

candidate or political party.

Scope

1. Prohibiting the posting of decals andstickers except in the common postingarea authorized by the COMELEC is notvalid (Adiong vs. COMELEC, 244 SCRA 272)

2. Mass media may report news relating tocandidates, and mass media practitioners

may give their opinion regardingcandidates. (National Press Club vs.COMELEC, 207 SCRA 1)

E. Rallies

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

ground that a prior writtenapplication for the same purpose has beenapproved. A denial is appealable to

the provincial election supervisor orCOMELEC. (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 dayand on election day. (Sec. 89 BP

881)

F. Prohibited donations

It is prohibited for any candidate,his spouse, relative within second degreeof consanguinity or affinity, orrepresentative to make any contribution forany structure for public use or for use of any religious or civic organization exceptthe normal religious dues and payment forscholarships established and schoolcontributions habitually made before thecampaign period. (Sec. 104, BP 881)

G. Prohibited contributions’No political contribution shall be

made by the following:1. Public or private financial

institutions2. Public utilities and those who exploit

natural resources

Thus, where an operator of apublic utility disguised acontribution to a candidate forgovernor as loan, the promissorynote is void: (halili vs. Court of Appeals, 83 SCRA 633)

3. Persons who hold contracts or sub-

contracts to supply the governmentwith goods and services.

4. Persons granted franchises,incentives, exemptions or similar privilegesby

the government5. Persons granted loans in excess of P25, 000 by the government or any of

its subdivisions or instrumentalities6. Schools which received grants of public funds of at least P100,0007. Employees in the Civil Service ormembers of the Armed Forces.

8. Foreigners (Sec. 95 , Bp 881)9. Corporations (sec. 36 (9), Corp.Code)

H. Equal Access to Media Time and SpaceAll registered parties and bonafide

candidates shall have equal access tomedia time and space . The followingguidelines may be amplified on by theCOMELEC.

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

issued, suspended or cancelledduring the election period.2. Any mass media columnist,commentator, announcer, reporter, on-air

correspondent or personality who isa candidate for any elective public office

or is a campaign volunteer for or employedor retained in any capacity by anycandidate or political party shall bedeemed resigned, if so required bytheir employers, or shall take a leave of absence from his work as such duringthe campaign. And that any mediapractitioner who is an officialcandidate of a political party or member of the campaign staff of a

candidate or political party shall notuse his media time and space to favor

any candidate or political party.

I. Limitation on expenses – Sec. 13, RA 71661. Candidates

a. President and vice president– P10 per voter

b. Other candidates – P3 pervoter in his constituencyc Candidate without politicalparty – P5 per voterd. Party/organization andcoalition participating in the party –list

system – P5 per voter

2. Political party and coalition – P5 pervoter in the constituency where it has

candidates. (sec. 13, RA 7166)

J. Statement of contributions andexpenditures

1. Filinga. every candidate and

treasurer of political party shall file within 30 daysafter election day a statement of contributions andexpenditures.

b. No persons elected shallassume office until he and his

political party has filed the requiredstatements

2. Penaltiesa. First Offense –administrative fine from P 1,000 toP30, 000b. Subsequent offense

i. Administrative finefrom P2,000 to P60, 000ii. Perpetual

disqualification to hold public office (Sec. 14,RA 7166)

3. Effect of withdrawalA candidate who withdraws

his certificate of candidacy muststill file a statement of contributionsand expenditures, for the lawmakes no distinction. (Pilar vs.COMELEC, 245 SCRA 759)

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

KINDS OF ELECTION1. General election is one provided for by lawfor 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 lawto fill vacancy in office before the expiration of thefull term for which the incumbent was elected orone fixed by the COMELEC due to postponementor suspension of the election or the failure to elect.3. Recall election is an election by means of which voters decide whether they should retaintheir local official or elect his replacement.(Claudio vs. COMELEC, 331 SCRA 388)

ELECTION PERIODUnless otherwise fixed by the COMELEC in

special cases, the election period shall commence90 days before the day of the day of the electionand 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, exceptbarangay officials, shall be on the second Mondayof May once every three years. In accordance withthe constitutional policy to synchronize elections,the regular election for national and local officialsis now held simultaneously. (RA 7166) Under6679, regular elections for barangay officials shallbe held once every five years.

ELECTION OF SANGGUNIANG MEMBERS1. For provinces with two or more legislativedistrict the elective members of

Sangguniang Panlalawigan (Spn) shall beelected by legislative districts.2. For provinces with only one legislativedistrict – the COMELEC shall divide

them into districts for purposes of electingthe members of the SPn;3. For cities in Metro Manila Area, Cebu City,

Davao City or any other city withtwo or more legislative district – governed

by Secs. 2 and 3 of RA 6686.4. For municipalities in Metro Manila – theCOMELEC shall divide them into two

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

POSEPONEMENT OF ELECTIONWhen for any serious cause such as

violence, terrorism, loss or destruction of electionparaphernalia or records, force majeure, and otheranalogous cases of such nature that the holding of

a free, orderly and honest election should becomeimpossible in any political subdivision, theCOMELEC, motu propio or upon a verified petitionby any interested party, and after due notice andhearing, whereby all interested parties areafforded equal opportunity to be heard, shallpostpone the election therein. (Sec. 5, BP 881)

An election officer alone, or even with theagreement of the candidates, cannot validlypostpone or suspend the election. (Basher vs.

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COMELEC, 330 SCRA 736). . . It is essential to thevalidity of the election that the voters have noticein some form, either actual or constructive, of thetime, place and purpose thereof (Basher vs.COMELEC, supra)

A petition to postpone elections should beaddressed 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 COMELECshould see to it that:

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

Postponement of suspension of the electionor a failure to elect; and2. 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 itsdate and of the transfer of the precincts was givenless than a day before, since the voters weredeprived of the opportunity to vote. (hassan vs.COMELEC, 264 SCRA 125)

FAILURE OF ELECTION1. Sec.6 the OEC contemplates threeinstances when the COMELEC may declare afailure of election and call for the holding of aspecial election: (1) when thee election in anypolling place has not been held on the date fixedon account of force majeure, violence, terrorism,fraud and other analogous cases, (2) when theelection in any polling place has been suspendedbefore the hour fixed by law for the closure of thevoting; and (3) after the voting and during thepreparation and transmission of the electionreturns or in the custody or canvass thereof, suchelection results in a failure to elect. (Soliva et alvs. COMELEC, GR No. 141723, April 20,2001)

2. The power to throw out or annul anelection should be exercised with the utmost careand only under circumstances which demonstratebeyond doubt either that the disregard of the lawhad been so fundamental or so pertinent and

continuous that it is impossible to distinguish whatvotes are lawful and what are unlawful, or to arriveat any certain result whatsoever, or that the greatbody of voters have been prevented by viiolence,intimidation and threats from exercising theirfranchise… There is failure of elections only whenthe will of the electorate has been muted andcannot be ascertained. (Benito vs. COMELEC, GRNo. 134913,January 19,2001)

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

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

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

6. Lack of notice of the date and time of thecanvass, fraud, violence, terrorism, and analogouscauses, such as disenfranchisement of voters,presence of flying voters, and lack of qualificationsof the members of the Board of Inspectors are notgrounds for declaration of failure of election butfor an election protest. (Borja vs. COMELEC,260

SCRA 604)

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

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

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

10. The COMELEC may decide a petition todeclare a failure of election en banc at the firstinstance, since it is not a pre-proclamation case oran election protest. (Borja vs. COMELEC, 260 SCRA604)

In petitions to declare a failure of election on theground of fraud, the COMELEC mayconduct a technical examination of electiondocuments and compare and analyze thesignatures and fingerprints of the voters.(Loong vss. COMELEC,257 SCRA 1)

SPECIAL ELECTION TO FILL UP VACANCY1. In case of permanent vacancy in Congress

at least one year before the expiration of the term,the COMELEC shall hold a special election notearlier than 90 days after the occurrence of thevacancy.2. A vacancy in the Senate will be filled up atthe next regular election.(Section 4,RA 7166)

BOARD OF ELECTION INSPECTORS (BEI) The Board of Election Inspectors shall be

composed of a chairman and twomembers, all of whom are public schoolteachers.

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

WATCHERSNumber

1. Official watchersEvery registered party or coalition

of parties and every candidate is

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entitled to one watcher perprecinct and canvassingcounter.

Candidates for the local legislaturebelonging to the same party areentitled collectively to onewatcher.

Six principal watchers from 6

accredited major political partiesshall be recognized. (Section 26,7166)

2. Other watchersa. The accredited citizen’s arm is

entitled to a watcher in every precinct.b. Other civic organizations may be

authorized to appoint one watcher inevery precinct. (Section 180, BP

881)Important rights of watchers

1. All watchersa. To stay inside the precinct

b. To inform themselves of theproceedingsc. To file a protest against any

irregularityd. To obtain a certificate of the

number of votes cast for eachcandidate (Section 179, BP881)

2. Citizen’s Arm To be given a copy of the election

return to be used for the conduct of anunofficial count. (Section 1, RA 8045)

VIII. CASTING OF VOTES

1. The chairman of the Board of ElectionInspectors should sign each ballot at the back. Theomission of such signature does not affect thevalidity of the ballot.(Libanan vs HRET,283 SCRA520) Under the rules prevailing during the 1997Barangay Elections, the failure to authenticate theballots shall no longer be cause for the invalidationthereof. (Malabaguio vs. COMELEC,346 SCRA 699)2. A voter who was challenged on the groundthat he has been paid for the vote or made a beton the result of the election will be allowed to voteif he takes an oath that he did not commit the actalleged in the challenge. (Section 200,BP881)

3. An illiterate or physically disabled votermay be assisted by a relative by affinity orconsanguinity within the fourth degree or anyperson of his confidence who belongs to the samehousehold or any member of the Board of ElectionInspectors. (Section 196, BP881)4. It is unlawful to use carbon paper, paraffinpaper or other means for making a copy of thecontents of the ballot or to use any means toidentify the ballot.(Sec. 195,BP881). A ballotprepared under such circumstances should not becounted. (Gutierrez vs. Aquino, Feb,26,1959)

ABSENTEE VOTING1. Members of the Board of ElectionInspectors and their substitutes may vote in theprecinct where they are assigned. (Section 169, BP881)2. Absentee voting for President, V-presidentand Senators are allowed for members of the AFP,PNP, and other government employees assigned in

connection with the performance of electionduties to places where they are not registered.(Section 12, RA 7166)

RA NO. 9189 “AN ACT PROVIDING FOR ASYSTEM OF OVERSEAS ABSENTEE VOTING BY QUALIFIED CITIZENS OF THE PHILIPPINESABROAD”

Sec. 5. Disqualification. – The following shall bedisqualified from voting under this Act:

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

b) Those who have expressly renounced theirPhilippine citizenship and who have pledgeallegiance to a foreign country;

c) Those who have committed and areconvicted in a final judgment by a court or

tribunal of an offense punishable byimprisonment of not less than one (1) year,including those who have committed and beenfound guilty of Disloyalty as define underArticle 137 of the Revised Penal Code, suchdisability not having been removed by plenarypardon or amnesty: Provided, however, Thatany person disqualified to vote under thissubsection shall automatically acquire the rightto vote upon expiration of five(5) years afterservice of sentence; Provided further, That theCommission may take cognizance of final

judgments issued by foreign courts or tribunalsonly on the basis or reciprocity and subject tothe formalities and processes prescribed bythe Rules of court on execution of judgments;

d) An immigrant or a permanent resident who isrecognized as such in the host country, unlesshe/she execute, upon registration, an affidavitprepared for the purpose by the Commissiondeclaring that he/ she shall resume actualphysical permanent residence in the Philippinenot later than three(3) years from approval of his/her registration under this Act. Suchaffidavit shall also state that she/ he has noapplied for citizenship in another country.

Failure to return shall be cause for the removalof the name of immigrant or permanentresident from the National Registry of Absentee Voters and his/her permanentdisqualification to vote in absentia.

e) Any citizen of thePhilippines abroad previously declared insaneor incompetent by competent authority in thePhilippines or abroad, as verified by thePhilippine embassies, consulates or foreignservice establishments concerned, unless suchcompetent authority subsequently certifies

that such person is no longer insane orincompetent.

SEC. 6 Personal Overseas AbsenteeRegistration. – Registration as an overseasabsentee voter shall be done in person.

Qualified citizens of the Philippines abroad whofailed to register under Republic Act No. 8189,otherwise known as “The Voters Registration Act of 1996”, may personally apply for registration with

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the Election Registration Board of the city ormunicipality where they were domiciled immediatelyprior to their departure from the Philippines, or withthe representative of the Commission of thePhilippine embassies, consulates and other foreignservice establishments that have jurisdiction overthe locality where they temporarily reside. Subjectto guidelines herein provided, the Commission is

hereby authorized to prescribe procedures foroverseas absentee registration pursuant to theprovisions of Republic Act No. 8189, wheneverapplicable, taking into strict consideration the timezones and the various periods and processes hereinprovided for the proper implementation of this Act.

The embassies, consulates and other foreign serviceestablishments shall transmit within five (5) daysfrom receipt the accomplished registration forms tothe Commission after which the Commission shallcoordinate with the Election Officer of the city ormunicipality of the applicant’s stated residence forverification, hearing and annotation in the

permanent list of voters.

All applications for the May 2004 electionsshall be filed with the Commission not later than twohundred eighty (280) calendar days before the dayof elections. For succeeding elections, theCommission shall provide for the period within whichapplications to register must be filed.

In the case of seafarers, the Commissionshall provide a special mechanism for the time andmanner of personal registration taking intoconsideration the nature of their work.

6.1 Upon receipt of the application forregistration, the Election Officer shallimmediately set the application forhearing, the notice of which shall beposted in a conspicuous place in thepremises of the city or municipalbuilding of the applicant’s statedresidence for at least one (1) weekbefore the date of the hearing. TheElection Officer shall immediatelyfurnish a copy of the application to thedesignated representatives of politicalparties and other accredited groups.

6.2 If no verified objection to theapplication is filed, the Election Officershall immediately forward theapplication to the Election RegistrationBoard, which shall decide on theapplication within one (1) week fromthe date of hearing without waiting forthe quarterly meeting of the Board. Theapplicant shall be notified of theapproval or disapproval of his/herapplication by registered mail.

6.3 In the event that an objection to theapplication is filed prior to or on thedate of hearing, the Election Officershall notify the applicant of saidobjection by registered mail, andclosing therein copies of affidavits ordocuments submitted in support of theobjection filed with the said ElectionOfficer, if any. The applicant shall havethe right to file his counter-affidavit byregistered mail, clearly stating therein

facts and defenses sworn before anyofficer in the host country authorizedto administer oaths.

6.4 The application shall be approved ordisapproved based on the merits of theobjection, counter-affidavit anddocuments submitted by the party

objecting and those of the applicant.

6.5 A Certificate of Registration as anoverseas absentee voter shall beissued by the Commission to allapplicants whose applications havebeen approved, including thosecertified as registered voters. TheCommission shall include the approvedapplications in the National Registry of Absentee Voters.

6.6 If the application has been approved,

any interested party may file a petitionfor exclusion not later than twohundred ten (210) days before the dayof elections with the proper municipalor metropolitan trial court. The petitionshall be decided within fifteen (15)days after its filing on the basis of thedocuments submitted in connectiontherewith. Should the court fail torender a decision within the prescribedperiod, the ruling of the ElectionRegistration Board shall be consideredaffirmed.

6.7 If the application has been approved,the applicant or his authorizedrepresentative shall, within a period of five (5) days from receipt of the noticeof this approval, have the right to file apetition for inclusion with the propermunicipal or metropolitan trial court.

The petition shall be decided withinfive (5) days after its filing on the basisof documents submitted in connectiontherewith.

Qualified citizens of the Philippines abroad,

who have previously registered as voters pursuantto Republic Act No. 8189 shall apply forcertification as absentee voters and for inclusion inthe National Registry of Overseas AbsenteeVoters, with a corresponding annotation in theCertified Voter’s List.

Sec. 7. System of ContinuingRegistration. – The Commission shall ensure thatthe benefits of the system of continuingregistration are extended to qualified overseasabsentee voters. Towards this end, theCommission shall optimize the use of existing

facilities, personnel and mechanisms of thevarious government agencies for purposes of datagathering, data validation, informationdissemination and facilitation of the registrationprocess.

Pre-departure programs, services andmechanisms offered and administered by theDepartment of Foreign Affairs, Department of Labor and Employment, Philippine OverseasEmployment Administration, Overseas Workers’

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Welfare Administration, Commission on FilipinosOverseas and other appropriate agencies of thegovernment shall be utilized for purposes of supporting the overseas absentee registration andvoting processes, subject to limitations imposedby law.

Sec.8 Requirements for Registration.

– Every Filipino registrant shall be required tofurnish the following documents:

a.) A valid Philippinepassport. In the absence of a validpassport, a certification of theDepartment of Foreign Affairs thatit has reviewed the appropriatedocuments submitted by theapplicant and found them sufficientto warrant the issuance of apassport, or that the applicant is aholder of a valid passport but is

unable to produce the same for avalid reason;b.) Accomplished

registration from prescribed by thecommission containing themandatory information:

(i) Last know residence of theapplicant in the Philippines beforeleaving for abroad;(ii) Address of applicant abroad, or

forwarding address in the caseof seafarers;

(iii) Where voting by mail is allowed,the applicant’s mailing addressoutside the Philippines wherethe ballot for absentee voterswill be sent, in proper cases;and

(iv) Name and address of applicant’sauthorized representative in thePhilippines for purposes of Section 6.7 and Section 12hereof.

c.) In the case of immigrants andpermanent residents nototherwise disqualified to voteunder this Act, an affidavitdeclaring the intention toresume actual physicalpermanent residence in thePhilippines not later than three(3) years after approval of his/her registration as anoverseas absentee voter underthis Act. Such affidavit shall alsostate that he/she has not

applied for citizenship in anothercountry.

The Commission may alsorequire additional data tofacilitate registration andrecording. NO information otherthan those necessary toestablish the identity andqualification of the applicantshall be required.

Sec. 11 Procedure for Application to Vote inAbsentia.-

Every qualified citizen to the Philippines abroadwhose application for registration has beenapproved, including those previously registeredunder Republic Act No. 8189, shall, in every

national election, file with the officer of theembassy, consulate or other foreign serviceestablishment authorized by the Commission, asworn written application to vote in a formprescribed by the Commission. The authorizedofficer of such embassy, consulate or other foreignservice establishment shall transmit to theCommission the said application to vote within five(5) days from receipt thereof. The application formshall be accomplished in triplicate and submittedtogether with the photocopy of his/her overseasabsentee voter certificate of registration.

Every application to vote in absentia may be donepersonally at, or by mail to the embassy,consulate or foreign service establishment, whichhas jurisdiction over the country where he/she hasindicated his/her address for purposes of thelections.

Consular and diplomatic services rendered inconnection with the overseas absentee votingprocesses shall be made available at no cost tothe overseas absentee voter.

Sec. 12 . Verification and Approval of Application to Vote.-

All applications shall be acted upon by theCommission upon receipt thereof, but in no caselater than one hundred fifty (150) days beforethe day of elections. In the event of disapprovalof the application, the voter or his authorizedrepresentative may file a Motion forReconsideration with the Commission personally,or by registered mail, within ten (10) days fromreceipt of the notice of disapproval. TheCommission shall act within five (5) days fromreceipt of such Motion for Reconsideration andshall immediately notify the voter of its decision.

The decision of the Commission shall be finaland executory.

Sec. 16. casting and Submission of Ballot.-

16.1 Upon receipt by7 the designated officer of the embassy, consulate and other foreignservice establishments of the ballots foroverseas absentee voters, votinginstruction, election forms and otherparaphernalia, he/she shall make themavailable on the premises to the qualifiedoverseas absentee voters in their

respective jurisdiction during the thirty(30 ) days before the day of elections whenoverseas absentee voters may cast theirvote. Immediately upon receiving it, theoverseas voter must fill-out his/her ballotpersonally, in secret, without leaving thepremises of the embassies, consulates andother Foreign Service establishmentsconcerned.

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16.2 The overseas absentee voter shallpersonally accomplish his/her ballot at theembassy, consulate or other foreignservice establishment that has jurisdictionover the country where he/she temporarilyresides or at any polling place designatedand accredited by the Commission.

16.3 The overseas absentee voter shall cast hisballot, upon presentation of the absenteevoter identification card issued by theCommission, within thirty (30) days beforethe day of elections. In the case of seafarers, they shall cast their ballotsanytime within sixty (60) days before theday of elections. In the case of seafarers,they shall cast their ballots anytime withinsixty (60) days before the day of electionsas prescribed in the Implementing Rulesand Guidelines.

16.4 All accomplished ballots received shall beplaced unopened inside sealed containersand kept in a secure place designated bythe Commission.

16.5 The embassies, consulates and otherforeign service establishments concernedshall keep a complete record of the ballotsfor overseas absentee voters, specificallyindicating the number of ballots theyactually received, and in cases wherevoting by mail is allowed under Section 17hereof, the names and addresses of thevoters to whom these ballots were sent,including proof of receipt thereof. Inaddition, the embassies, consulates andother foreign service establishments shallsubmit a formal report to the Commissionand the Joint Congressional OversightCommittee created under this Act withinthirty (30) days from the day of elections.Such report shall contain data on thenumber of ballots cast and received by theofficers the number of invalid andunclaimed ballots and other pertinentdata.

16.6 The overseas absentee shall be instructedthat his/her ballot shall not be counted if itis not inside the special envelopefurnished him/her when it is cast.

16.7 Ballots not claimed by the overseasabsentee voters at the embassies,consulates and other foreign serviceestablishments, in case of personal voting,and ballots returned to the embassies,consulates and other foreign serviceestablishments concerned, in the case of voting by mail. Shall be cancelled and

shipped to the Commission by the leastcostly method within six (6) months fromthe day of elections.

16.8 Only ballots cast, and mailed ballotsreceived by the Philippine embassies,consulates and other foreign serviceestablishments concerned in accordancewith Section 17 hereof before the close of voting open the day of elections shall becounted in accordance with Section 18

hereof. All envelopes containing theballots received by the embassies,consulates and other foreign serviceestablishments after the prescribed periodshall not b opened, and shall be cancelledand shipped to the Commission by theleast costly method within six (6) monthsfrom the day of elections.

16.9 A special Ballot Reception and CustodyGroup composed of three (3) membersshall be constituted by the Commissionfrom among the staff of the embassies,consulates and other foreign serviceestablishments concerned including theirattached agencies, and citizens of thePhilippines abroad, who will be deputizedto receive ballots and take custody of thesame preparatory to their transmittal tothe Special Boards of Election Inspectors.

16.10 During this phase of the election process,the authorized representatives of politicalparties, candidates, and accreditedcitizens’ arms of the Commission shall benotified in writing thereof and shall havethe right to witness the proceedings.

16.11 The Commission shall study the use of electronic mail, internet, or other securednetworks in the casting of votes, andsubmit a report thereon to the JointCongressional Oversight Committee.

Sec. 17. Voting by Mail. –

17.1 For the May 2004 elections, the Commissionshall authorize by voting mail in not morethan three (3) countries, subject to theapproval of the Congressional OversightCommittee. Voting by mail may be allowed incountries that satisfy the followingconditions:

a.) Where the mailing systemis fairly well-developedand secure to preventoccasion for fraud;

b.) Where there exists atechnically establishedidentification system thatwould preclude multiple orproxy voting; and

c.) Where the system of reception and custody of mailed ballots in theembassies, consulatesand other foreign serviceestablishments concernedare adequate and well-secured.

Thereafter, voting by mail inany country shall be allowedonly upon review andapproval of the JointCongressional OversightCommittee.

17..2 The overseas absentee voter shall sendhis/her accomplished ballot to thecorresponding embassy, consular orforeign service establishment that has

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jurisdiction over the country where he/shetemporarily resides. He/she shall beentitled to cast his/her ballot at any timeupon his/her receipt thereof, provided thatthe same is received before the close of voting on the day of elections. Theoverseas absentee voter shall be instructedthat his/her ballots shall not be counted if

not transmitted in the special envelopefurnished him/her.

17.3 Only mailed ballots received by thePhilippine embassy, consulate and otherforeign service establishments before theclose of voting on the day of elections shallbe counted in accordance with Section 18hereof. All envelopes containing the ballotsreceived by the embassies, consulates andother foreign service establishments afterthe prescribed period shall not be opened,and shall be cancelled and disposed of

appropriately, with a corresponding reportthereon submitted to the Commission notlater than thirty (30) days from the day of elections.

Sec. 23. Security Measures toSafeguard the Secrecy and Sanctity of Ballots.- At all stages of the electoral process, theCommission shall ensure that the secrecy andintegrity of the ballots are preserved. TheCommittees on Absentee Voting of theCommission shall be responsible for ensuring thesecrecy and sanctity of the absentee votingprocess. In the interest of transparency, allnecessary and practicable measures shall beadopted to allow representation of the candidates,accredited major political parties, accreditedcitizens’ arms and non-government organizationsto assist, and intervene in appropriate cases, in allstages of the electoral exercise and to prevent anyand all forms of fraud and correction.

Sec. 24. Prohibited Acts. – In addition tothe prohibited acts provided by law, it shall beunlawful:

24.1 For any officer or employee of the

Philippine government to influence orattempt to influence any personcovered by this act to vote, or not tovote, for a particular candidate.Nothing in this Act shall be deemed toprohibit free discussion regardingpolitics or candidates for public office.

24.2 For any person to deprive any personof any right secured in this act or togive false information as to his/hername, address, or period of residencefor the purposes of establishing

his/her eligibility or ineligibility toregister or vote under this act; or toconspire with another person for thepurpose of encouraging the giving of false information in order to establishthe eligibility or ineligibility of anyindividual to register or vote underthis Act; or, to pay, or offer to pa, orto accept payment either froapplication to vote in absentia or forvoting.

24. 3 For any person to tamper with theballot, the mail containing the ballotsfor overseas absentee voters, theelection returns including thedestruction, mutilation andmanipulation thereof.

24.4 For any person to steal, destroy,conceal, mutilate or alter any record,document or paper as required forpurposes of this Act.

24.5 For any deputized agent to refusewithout justifiable ground, to serve orcontinue serving, or to comply withhis/her sworn duties after acceptanceof his/her appointments;

24.6 For any public officer or employee

who shall cause the preparations,printing, distribution of informationmaterial, or post the same in websitewithout the prior approval of theCommission.

24.7 For any public employee to cause thetransfer, promotion, extension, recallof any member of the foreign servicecorps, including members of theattached agencies, or otherwisecause movement of any suchmember from his current post orposition one (1) year before and three(3) months after the days of elections,without securing the prior approval of the Commission.

24.8 For any person who, after beingdeputized by the Commission toundertake activities in connectionwith the implementation of this Act,shall campaign for or assist, inwhatsoever manner, candidates inthe elections.

For any person who is not citizen of the

Philippines to participate by word ordeed, directly or indirectly throughqualified organizations/associations, inany manner and at any stage of thePhilippine political process abroad,including participation in the campaignand elections.

The Provision of existing laws to thecontrary notwithstanding, and with dueregard to the Principle of DoubleCriminality, the prohibited acts described inthis section are electoral offenses and

punishable in the Philippines.

The penalties imposed underSection 264 of the Omnibus Election Code,as amended, shall be imposed on anyperson found guilty of committing any setof the prohibited acts as defined I thissection. Provided, that the penalty orprision mayor in its minimum period shallbe imposed upon any person found guiltyof Section 24.3 hereof without the benefit

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of the operation of the IndeterminateSentence Law. If the offender is a publicofficer or a candidate, the penalty shall beprision mayor in its minimum period. Inaddition, the offender shall be sentenced tosuffer perpetual disqualification to holdpublic office and deprivation of the right tovote.

Immigrants and permanentresidents who do not resume residence inthe Philippines as stipulated in theiraffidavit under Section 5 (d) within three(3) years after approval of his/herregistration under this Act and yet vote inthe next elections contrary to the saidsection, shall be penalized byimprisonment of not less than one (1) year,and shall be deemed disqualified asprovided in Section 5 (c) of this Act. His/herpassport shall be stamped “not allowed to

vote”.

IX COUNTING OF VOTES

MANNER1. The Board of Election Inspectors shall readthe ballots publicly and shall not postpone thecount until it is completed. (Section 206, BP 881)2. The Board of Election Inspectors shallassume such positions as to provide the watchersand the public unimpeded view of the ballot beingread. (Section 25, RA 7166)3. If on account of violence or similar causesit becomes necessary to transfer the counting of the votes to a safer place, the BEI may effect thetransfer by unanimous approval of the board andconcurrence of a majority of the watchers present.(Section 18, RA6646)4. Where a commotion resulted in suspensionof the counting, the BEI may recount the ballots.(Dayag vs. Alonzo)

SPECIAL PROBLEMS

1. Excess BallotsIf there are excess ballots, the poll

clerk shall draw out as many ballots equal to theexcess without seeing them, and the excessballots shall not be counted. (Section 207, BP881)2. Spoiled ballots

a. Ballots in the compartment forspoiled ballots are presumed to be spoiled ballots.

If the BEI finds that a valid ballot waserroneously deposited in thecompartment for spoiled ballots. Itshall be counted. (Section 209,

BP881)3. Marked Ballot

a. Marked ballots shall not be counted(Section 208, BP881)

b. A ballot is considered marked in anyof the following cases:

The voter signed theballot. (Ferrer vs DeAlban, 101 phil 10)

There were variations inthe style of writing

The name of a acandidate was writtenmore than twice

The voter wrote the namesof well-known publicfigures who are notcandidates such asactors, actresses and

national political figures.(Protacto vs. De Leon, 9SCRA 472)

The ballot containsirrelevant expression.(Bautista vs. Castro,206SCRA 305). However, theuse of nicknames andappellations of affectionand friendship, if accompanied by thename of the candidatedoes not annul the ballot

except when it is used toidentify the voter.(Section 211 (13),BP811)

c. Evidence aliunde is not necessary toprove a ballot as marked. (Bacobo vs.COMELEC,191 SCRA 576)d. a ballot in which a sticker was stuckby another person to invalidate it shouldnot be rejected. (Lerias vs. HRET,202 SCRA808)

RULES FOR APPRECIATION OF BALLOTS

1. A ballot in which the first name or surnameof a candidate is written should be countedfor him, if there is no other candidate withthe same name. (Lerias vs. HRET,202 SCRA808)

2. If only the first name of a candidate iswritten and it sounds like the surname of another candidate, the vote shall becounted in favor of the latter.

3. If there are two or more candidates withthe same name and one of them isincumbent, the vote shall be counted infavor of the incumbent.

4. When two or more words are written ondifferent lines which are the surnames of two or more candidates with the samesurname of an office for which the lawauthorizes the election of more than one,the vote shall be counted in favor of all thecandidates. With the same surname.

5. When the word written is the first name of one candidate and the surname of anothercandidate, the vote shall be counted for thelatter.

6. If the ballot contains the first name of onecandidate and the surname of another, thevote shall not be counted for either.

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7. An incorrectly written name which soundslike the correctly written name of acandidate shall be counted in hisfavor(Bautista vs Castro,206 SCRA 606)

8. If the word written is the incidental name of two or more candidates for the same officenone of whom is incumbent, the vote shall

be counted in favor of the candidate whobelongs to the same ticket as all othercandidates voted for in the ballot for thesame constituency.

9. The erroneous initial of the first nameaccompanied by the correct surname of acandidate or the erroneous initial of thesame accompanied by the correct firstname of a candidate shall not annul thevote in his favor.

10. A ballot in which the correct first name butwrong surname of a candidate is written orthe correct surname but wrong first nameof a candidate is written ,shall not becounted in his favor.

11. Where a candidate named Pedro Alfonsodied on the eve of the election and hisdaughter Irma Alfonso substituted him,ballots in which the name Pedro alfonsowas written cannot be counted in her favor.(Afonso vs. COMELEC,232 SCRA 777)

12. If two or more candidates were voted for inan office for which the law authorizes theelection for only one, the vote shall not becounted in favor of any of them.

13. If the candidate voted for exceed thenumber of those to be elected, the votesfor the candidates whose names werefirstly written equal to the number of candidates to be elected shall be counted.

14. Even if the name of a candidate was

written on the wrong space, it should becounted if the intention to vote for him canbe determined, as when there is acomplete list of names of other officeswritten below his name or the voter wrotethe office for which he was electing thecandidate. (Cordero vs.Moscardon,132SCRA 414)

STRAY BALLOT

Rule 14 of section 211 of the OmnibusElection Code considers three kinds of votes as

stray: (1) a vote containing initials only,(2) a votewhich is illegible, and ( 3) a vote which does notsufficiently identify the candidate for whom it isintended. (Villarosa vs. HRET,340 SCRA 396)

The rule is in favor of the validity of theballot, not otherwise… The appearance of printand script writings in a single ballot does notnecessarily imply that two persons wrote theballot…

Paragraph 18,section 149 of the REC,provides that unless it should clearly appear that ithas been deliberately put by the voter to serve asidentification mark, the use of two or more kindsof writing shall be considered innocent and shallnot invalidate a ballot..

Under Section 211(19 ) of the OEC, any

vote in favor of a person who has not filed acertificate of candidacy or in favor of a candidatefor an office for which he did not present himself shall be considered as an astray vote, but it shallnot invalidate the whole ballot… The unexplainedpresence of prominent letters and words writtenwith remarkably good hand marked the ballotsand must be considered invalid…

When in a space in the ballot there appearsa name of candidate that is erased and anotherclearly written, the vote is valid for the latter…incorrect spelling of a candidate’s name does not

invalidate the ballot—for even the most literateperson is bound to commit a mistake in spelling.(Ong vs. COMELEC, 347 SCRA 681)

CORRECTION OF RETURNS

1. Before the announcement of the results of the election in a precinct, any correction oralteration in the election returns must be initialedby all members of the BEI.

2. After the announcement of the results in aprecinct, the authorization of the COMELEC isneeded to make any correction or alteration.

a. If the petition is by all members of the BEI,the results of the election will not be affected, andnone of the candidate affected objects, theCOMELEC, upon being satisfied of the veracity of the petition, shall order the correction.

If a candidate affected by the petition objects andthe correction will affect the results of the election,the COMELEC shall order a recount of the votes, if it finds the petition meritorious and the integrity of the ballot box has not been violated (section 216,BP 881)

WHAT CONSTITUTE AN ELECTION

Plurality of votes sufficient for choice

Not necessary that a majority of voters shouldvote

CERTIFICATE OF VOTES

The BEI shall issue a certificate of the number of votes received by a candidate upon request of a

watcher. (Section 16, RA6646)

The certificate of votes is admissible in evidenceto prove anomaly in the election return whenauthenticated by testimony or documentaryevidence of at least two members of the BEI.

X. CANVASSING AND PROCLAMATION

CANVASSING BODIES

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1. Congressa. Presidentb. vice president

2. COMELECa. Senatorsb. Regional Officials

3. Provincial board of canvassersa. Congressman

b. Provincial officials4. District Board of Canvassers in eachlegislative district in Metro Manila

a. Congressmanb. Municipal official

5. City and Municipal Board of Canvassers

a. Congressmenb. City and municipal officials

6. Barangay Board of Canvassersa. Barangay officials

SUPERVISORY POWER OVER THE BOARD

The COMELEC exercises directsupervision and control over the proceedingsbefore the board of canvassers (Mastura vs.COMELEC, 285 SCRA 493)

NATURE OF DUTY OF BOARD OF CANVASSERS1. Ministerial- it has only the ministrial task of tallying the votes as reported in the electionreturns and declare the results, and cannotexercise the judicial power of deciding an electioncontest. The correction of the manifest mistake inthe mathemathical addition calls for a mereclerical task on the part of the board. The remedyis purely administrative. (Tatlonghari vs.COMELEC,199 SCRA 199)

2. Quasi-Judicial- The Comelec exercises judgment or discretion to determine whether anygiven return before it is genuine in connection withthe canvass of votes.

PROCEDURE1. The COMELEC has direct control andsupervision over the board of canvassers exceptcongress. It may motu proprio relieve at any time

and substitute any member of the board of canvassers. (section 227, BP 881)

• A municipal court has no jurisdictionto restrain the municipal board of canvasser. (Librados vs. Casar,234SCRA 13)

2. Manner of delivery of election Returna. The BEI shall personally deliver to

the city or municipal board of canvassers the copyof the election returns intended for them sealed inan envelop, signed and thumbmarked by themembers of the BEI.

The fact that an election return wasnot locked in the ballot box when it was deliveredto the board of canvassers is not ground forexcluding it in the absence of proof that it wastampered with (Pimentel vs. Comelec,140 SCRA126)

b. The BEI shall personally deliver tothe provincial and district board of canvassers thecopy of the election returns intended for them tothe election registrar.

c. Watchers have the right toaccompany the members of the BEI and theelection registrar during the delivery of theelection returns to the board of canvassers.(section 229, BP 881)

RIGHTS OF CANDIDATES1. Every registered political party and

candidate is entitled to one watcher in thecanvassing center, but candidates for the locallegislative bodies belonging to the same party areentitled collectively to one watcher. The fact thatthe watcher of a candidate was not present whenthe canvassing was resumed because he wasnotified is not a ground to annul the canvass.(Quilala vs. COMELEC,188 SCRA 902)2. Any registered political party and candidatehas the right to be present and to counsel

a. only one counsel may argue for eachparty of candidate; no dilatory action shall beallowed

3. Problem areasa. Lost return

i. If any election return has beenlost, upon prior authority of the COMELEC,the board of canvassers may use authenticcopy of it or a certified copy of it issued bythe COMELEC(Section 233,BP 881). It is notnecessary that all the other copies shall beconsidered.

ii. If an election return is missing arecount should not be ordered if there isany authentic copy available(Ong vs.COMELEC, 216 SCRA 866)

iii. If all copies of the Electionreturns were lost, a recount of the ballotsshould be made.

iv. The certificate of votes signed bythe BEI and tally board cannot be used forthe canvass, because only election returnsare evidence of the results of the election.(Garay vs COMELEC, 262 SCRA 222)

b. Omission in the returni. in case of an omission in the

election return of the names of a candidate

or his votes, the board of canvassers shallrequire the BEI to complete it.

ii. If the votes omitted cannot beascertained except by recounting the ballots, afterascertaining the integrity of the ballot has notbeen violated, the COMELEC shall order the BEI tocount the votes for the candidate whose voteswere omitted and to complete the return. Sincethe omission of the election return on the numberof votes certain candidates received is not adiscrepancy, a recount of the vote should beordered instead of excluding the election return inthe canvassing. (Patoray vs. COMELEC,249 SCRA

490)

c. Tampered or falsified returni. If the election return submitted to

the board of canvassers was tampered with orfalsified or prepared under duress or by personsother than the BEI, the board shall use the othercopies of the election return.

ii. If the other copies of the electionreturns were also tampered with or falsified orprepared under duress or by persons other than

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the BEI, the COMELEC after ascertaining that theintegrity of the ballot box has not beenviolated,shall order the BEI to recount the votesand prepare a new return.

iii. If the certificate of canvass wastampered with, the COMELEC may order that anyof the copies of the election returns be used inmaking a new canvass.(Mastura vs. COMELEC,265

SCRA 493)iv. Since an election return preparedwithout counting the ballots is a fabrication, itshould not be counted and a count of the ballotshould be ordered.( Lucero vss. COMELEC,234SCRA 280)

d. Discrepancies in returnsIf there are discrepancies in the other

authentic copies of the return or in the words orfigures in the same return and it will affect theresult of the election, the COMELEC, afterascertaining that the integrity of the ballot box has

not been violated, shall order the recount of theballots.If there is discrepancy between the tally

and the written figures in the election return, itshould be excluded from the canvassing and arecount of the ballots should be made or thecertificate of votes cast in the precinct should beused. (Patoray vs. COMELEC,249 SCRA 440)

PROCLAMATION1. An incomplete canvass of votes is illegalcannot be a basis of a valid proclamation (Samadvs. COMELEC,224 SCRA631,Loong vs.COMELEC,257 SCRA 1) a canvass cannot bereflective of the true vote of the electorate unlessall returns are considered and none is omitted(Caruncho III vs. COMELEC,315 SCRA 693)2. If the questioned election returns will notaffect the result of the election, a proclamationmay be made upon the order to the COMELECafter notice and hearing.3. A proclamation made where the contestedreturns set aside will affect the result of theelection and the board of canvassers proceeded toproclaim without the authority from the COMELECis null and void. (Sema vs. COMELEC,347 SCRA633)

4. The mere filing of a petition fordisqualification is not a ground to suspend theproclamation of the winning candidate-in theabsence of an order suspending proclamation, thewinning candidate who is sought to be disqualifiedis entitled to be proclaimed as a matter of law.(Bagatsing vs CCOMELEC,320 SCRA 817)5. Filing of pre-proclamation controversyunder 2448 of BP881 is not the only grounds forthe suspension of proclamation.6. The proclamation of a winning candidatecannot be annulled if he has not been notified of the motion to set aside his proclamation.

(Caruncho vs. COMELEC,315 SCRA 693)7. The fact that the candidate who obtained

the highest number of votes is laterdeclared to be disqualified or nor eligiblefor the office to which he was elected doesnot necessarily entitle the candidate whoobtained the second highest number of votes to be declared the winner of theelective office… To allow the defeated andrepudiated to take over the mayoraltydespite the rejection by the electorate is to

disenfranchise the electorate withoutany fault of their part and to determine theimportance and meaning of democracy andthe people’s right to elect officials of theirchoice… Court a quo correctly held that thesecond placer lost the elections and wasrepudiated by either a majority or pluralityof voters. (Loreto vs. Brion,311 SCRA 694)

TIE1. A tie among two or more candidates forpresident or vice president shall be broken bymajority vote of both houses of congress votingseparately (Section 4. ART VII, PHIL CONT”N)2. In the case of other positions, the ties shallbe broken by the drawing of lots.

FAILURE TO SSUME OFFICEIf a candidate fails to take his oath of office

within 6 months from his proclamation, unless fora cause beyond the control of the elected official,

his office will be considered vacant. (section 12,BP 881)

XI PRE-PROCLAMATION CASES

A. Dfinition;coveragePre-proclamation controversy

refers to any question pertaining to oraffecting the proceedings of the board of canvassers which may be raised by anycandidate or by any registered politicalparty or coalition of political parties beforethe board or directly with the Commission,or any matter raised under sections233,234,235 and 236 in relation to thepreparation,transmission,receipt, custodyand appreciation of the election returns.( Chu vs. COMELEC,319 SCRA 482)

In pre-proclamation controversy,the board of canvassers and the COMELECare not to look beyond or behind electionreturns which are on their face regular andauthentic returns.(CHU,supra)

A pre-proclamation controversy islimited to an examination of the electionreturns on their face- The COMELEC as a

general rule need not go beyond the faceof the returns and investigate allegedelection irregularities.

To require the COMELEC to examinethe circumstances surrounding thepreparation of the returns would runcounter to the rule that a pre-proclamationcontroversy should be summarily decided.

Where the resolution of the issuesraised would require the COMELEC to“pierce the veil” of election returns thatappear prima facie regular, the remedy is aregular election protest.

The office of pre-proclamationcontroversy is limited to incomplete,falsified or materially defective returnswhich appear as such on the face.(Sebastian VS COMELEC, 327 SCRA 406)

B. JURISDICTION1. Questions involving the legality of the composition or proceeding of the boardof canvassers, except congress, may be

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raised initially in the board of canvassers orthe COMELEC.(SEC 15 and 17, RA 7166)2. Questions involving the electionreturns and certificate of canvass should bebrought in the first instance before theboard of canvassers only (Section 17, RA7166)

C. SCOPE OF PRE-PROCLAMATIONCONTROVERSY

ISSUES1. Provincial, city and municipal officials

a. Thecomposition of the proceeding of the board of canvassers is illegalb. The returnsare incomplete, contain materialdefects, appear to be tamperedwith or falsified or contain

discrepancies in the same returnsor in other authentic copies;c. The returnswere prepared under duress or areobviously manufactured or notauthentic;d. Substitute orfraudulent returns were canvassed,the result of which materially affectthe standing of the aggrievedcandidate.

2. President, vice president, senators,congressmen and barangay officials

No pre-proclamation case is allowedregarding the preparation, transmission, receipt,custody and appreciation of the election return orcertificate of canvass.(Chaves vs COMELEC,211SCRA 315)

ERRORS IN THE CERTIFICATE OF CANVASSCorrection of manifest errors has reference

to errors in the election returns, in the entries of the statement of votes by precinct/permunicipality, or in the certificate of canvass… a

manifest clerical error is one that is visible to theeye or obvious to the understanding, and isapparent from the papers to the eye appraiser andthe collector, and does not include an error whichmay, by evidence dehors the record to be shownto have been committed. (Trinidad vs.COMELEC,320 SCRA 836)

1. While the first sentence of section 15 of RA7166 prohibits candidates in the presidential, Vicepresidential, senatorial and congressionalelections from filing pre-proclamation case, thesecond sentence allows the filing of petitions for

correction of manifest errors in the certificate of canvass or election returns even in elections forpresident, vice-president, senators and membersof the House of Representatives for the simplereason that the correction of manifest error willnot prolong the process of canvassing nor delaythe proclamation of the winner in the election.(Sandoval vs. COMELEC,323 SCRA 403)

2. The canvassing body may motu proprio orupon petition of an interested party correct

manifest errors in the certificate of canvass orelection return. (Sec 15, RA7166)

i. A copy of an election return orcertificate of canvass was tabulated more thanonce.

ii. Two or more copies of the sameelection return or certificate of canvass weretabulated separately.

iii. There was a mistake in copying thefigures into the statement of votes or certificate of canvass.

Errors in addition in the certificate of canvass may be corrected. (Ong vs COMELEC,221SCRA 75)

iv. Returns from non-existent precinctswere included in the canvass

The statement of votes cannot becorrected on the basis of a certification given to awatcher, since election returns are what aresupposed to be the basis of the canvass. (Ramirezvs. COMELEC,270 SCRA 390)

STATISTICAL IMPROBABILITIESAn election return which is statistically

improbable is obviously fabricated and should notbe counted.

i. Where the votes cast in 50precincts for the candidates for senators of oneparty equalled the number of registered voters,all the candidates for senators of that partyreceived the same number of votes, and all thecandidates for senators of the opposing party gotno votes, the election returns are statisticallyimprobable and are obviously fabricated.(Lagumbay vs. Climaco, 16 SCRA 175)

ii. Where only onecandidate of a party got all thevotes in some precincts and hisopponent got zero, the othercandidates for the other party forother positions received votes, thenumber of votes cast were less thanthe number of registered voters, theelection returns are not statisticallyimprobable. (Sangki vs COMELEC,21 SCRA 1391)sssiii. The mere fact that a

candidate receive overwhelmingmajorities over another candidate innumerous precinct does not makethe election return statisticallyimprobable. (Ilarde vs. 31SCRA71)iv. The mere fact that thepercentage of turnout of voters washigh and that a candidate receivedhigh percentage of the votes doesnot make the election returnsstatistically improbable.(Doruelo vs.COMELEC ,133 SCRA 376)

v. The bare fact that candidate forpublic office had received zero voteis not enough to make returnsstatistically improbable (Ocampovs.COKELRC,325SCRA 636)v. Standing alone withoutmore, the bare fact that a candidatefor public office had receive zerovotes in one or two precincts cannot adequately support a findingthat the subject election returns are

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statistically improbable- thedoctrine of statistical improbabilitymust be viewed restrictively, theutmost care being taken lest inpenalizing the fraudulent andcorrupt practices, innocent votersbecome disenfranchised…Thedoctrine of statistical improbability

involves a question of fact and moreprudential approach prohibits itsdetermination ex parte.(Velayo vs.COMELEC,327 SCRA713)

ISSUES NOT RESOLVABLE N PRE-PROCLAMATION CONTROVERSY

1.Issues involving the casting or the counting of the ballots are not proper in pre- proclamationcases.

i. The use of illegal election propaganda,vote-buying and terrorism of the votersare not proper issues in a pre-proclamation case. (Villegas vs.COMELEC, 99 SCRA 5892)

ii. Questions on the appreciation of theballots can not be raised in pre-proclamation case. (Alfonsovs.COMELEC, 232 SCRA 777)Thus, theclaim that a candidate was not creditedwith votes cast for him because hisname was similar to that of anotherdisqualified candidate cannot be raisedin a pre-proclamation case.(Chavez vs.COMELEC, 211 SCRA 315)

Likewise,the claim that some ballotswere spurious, marked orinvalid cannot be raised in apre- proclamation case.(pataray vs. COMELEC,274SCRA 470)

iii. Terrorism of voters,voting by flying voters,deprivation of the right tovote of registered voters andvote buying cannot be

raised in a pre-proclamationcase (Allarde vs.COMELEC,159 SCRA 623)

iv. Vote buying andsecrecy in the preparation of ballots are not propergrounds for pre-proclamation case (Salazarvs. COMELEC,184 SCRA 433)

v. The claim that thevoters were allowed to votewithout verifying theiridentities, that there were

discrepancies between thesignatures in the voter\saffidavits and the votingrecord, and third personsfalsely voted for voters whodid not vote are not properissues in a pre-proclamationcase (Dipatuan vs.COMELEC,185 SCRA 86)

vi. Technicalexamination of the

signatures andthumbprints of the voters toprove substitute voting isnot allowed in a pre-proclamation case.(Balindong vs.COMELLEC,260 SCRA 294)

vii. The padding of the

list of voters cannot beraised in a pre-proclamationcase, since it does notinvolve the election return.(Ututahan vs.COOOMELEC,189 SCRA 335)

viii. The fact that thevoting was sham or minimalis not a ground for filing apre-proclamation case, sincethis is properly cognizable inan election protest.(Salih vs.COMELEC,279 SCRA 19)

ix To look beyond orbehind election returns isnot a proper issue in pre-proclamation controversy(Ocampo vs. COMELEC, 325SCRA 636)

x The fact that thecounting of the votes wasnot completed because of the explosion of grenadeand that no election washeld cannot be raised in apre-proclamation case, asthese are irregularities thatdo not appear on the face of the election returns.(Matalam vs. COMELEC,271SCRA 733)

2. Administrative lapseswhich do not affect theauthenticity of an electionreturn cannot serve as basisfor annulling the electionreturn.

i. The failure to closethe entries in the election

returns with the signature of the BEI, lack of seals,absence of time and date of receipt of election return bythe board of canvassers,lack of signature of watchersof the petitioner, and thelack of authority of theperson who received theelection returns do not affectthe authenticity of thereturns. (Baterina vs.COMELEC,205 SCRA 1)

ii. The absence of thesignature of the claimant of the BEI on the voter’saffidavits, list of voters andvoting records, absence orexcess of detachablecoupons, discrepanciesbetween the member of detachable coupons and thenumber of ballots, missingvoter’s lists are mere

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administrative omissionsand cannot be used as basisto annul an election return.(Arroyo vs. HRET, 246 SCRA384)

3. Where the threats of the followers of a candidate

did not affect thegenuineness of an electionreturn, it should not beexcluded (Salvacion vs.COMELEC,170 SCRA 513)

SUMMARY DISPOSITION OFPRE-PROCLAMATIONCONTROVERSY1. Summaryproceedings cannot bestretched to mean ex parteproceeding- summary simply

means with dispatch, withthe least possible delay,signifying that the powermay be exercised withouttrial in the ordinary mannerprescribed by law for regular

judicial proceedings.(Velayovs.Comelec,372 SCRA 713)2. RA 7166 explicitlyprovides that it is only onthe basis of the officialrecords that the COMELECcan decide the pre-proclamation controversy ina summary manner. (Velayovs. COMELEC,327 SCRA 713)3. All pre-proclamationcontroversies on electionreturns or certificates of canvass shall be disposed of summarily-first by the recordof canvassers and then. Bythe COMELEC. (Chu vs.COMELEC, 319 SCRA 482)

A. Procedure in contested composition orproceeding of the Board of Canvassers

The illegality of the composition of theboard of canvassers cannot be questionedafter the proclamation of the winner, sinceit must be raised immediately. (Laodeniovs. COMELEC,276 SCRA 705)

The ruling of the board of canvassers on question affecting itscomposition or proceeding may beappealed to the COOMELEC in 3 days.(Section 19 RA 7166)

B. Procedure in case of contested returns

1. Objections to an election returnshall be submitted orally to the chairman of the board of canvassers at the time thereturn is presented for inclusion in thecanvass and shall be entered in the formfor written objection(Sec 20 (a) and (c),RA7166)

a. An objection made after thecanvass is late.(Guiao vs /comelec,137SCRA 356,Navarro vs COMELEC,228 SCRA596)

b. a petition for correction of the statement of votes may be filed afterthe proclamation of the winner, althoughno objection was made during thecanvass, as error was discovered only afterthe petitioner got a copy of the statementof votes. (Duremdes vs. COMELEC,178SCRA 746). It must be filed not later than 5

days after the proclamation.(Section 5(b),Rule 27 of COMELEC rules of procedure)However, the five-day

deadline is not applicable to a petition forthe annulment of proclamation of acandidate when it was his opponent whoobtained the majority for what wascorrected was not the entries but thecomputation of the votes. (Mentang vs.COMELEC,229 SCRA 666)

Under the COMELEC Rules of procedure, a petition for correction of thecertificate of canvass may be filed even

before the proclamation of the winner.(Bince vs. Comelec,242 SCRA273)A petition for correction of

manifest errors in the statement of votescan be decided by the COMELEC en banc atthe first instance, since it does not involvean election protest or a pre-proclamationcase (Ramirez vs. COMELEC,270 SCRA 590)

The COMELEC has thepower to order the correction of thestatement of votes to make it conform tothe election returns. (Castromayor vs.COMELEC,250 SCRA 298)

2. The canvass of any contested returnshall be deferred and the board of canvasser shall proceed to canvass theuncontested return (Section 20(b),RA 7166)3. Within 24 hours, the objecting partyshall submit evidence in support of theobjections.4. Within 24 hours after presentationof the objection, a party may file a writtenopposition and attach the supportingevidence.(Section 20c, RA 7166)5. The board of canvassers shallsummarily rule in the contested returns

(Section 20(d),RA 7166)6. A party who intends to appealshould immediately inform the board of canvassers. Within 24 hours he must file awritten and verified notice of appeal withthe board of canvassers and take hisappeal to the COMELEC within 5 days.(section 20(f),RA 7166)

a. Appellate jurisdiction

The RTC has no jurisdiction to review thedecision of the municipal board of

canvassers to correct a certificate of canvass.(Cabanero vs CA)

The RTC has no jurisdiction to compelthemunicipal board of canvassers, whichsuspended the proclamation because of apossible discrepancy in the election return,to make a proclamation. (In re COMELECResolution no.2521,234 SCRA 1)

b. Period of appeal

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Since the proclamation of a candidate whofinished second made after the candidatewho got the highest number of votes waskilled is patently void, a late appeal shouldbe allowed. (Benito vs. CCOMELLEC,235SCRAS 436)

The COMELEC cannot by regulation shortenthe period to question its decision beforethe SC for under the Constitution theperiod of 30 days can be shortened by lawonly.(Sardea vs. COMELLEC,225 SCRA 374)

7. The COMELEC shall decide the appealwithin 7 days from receipt of the records,and the decision shall be executory after 7days from receipt by the losing party.(Sections 18 and 20(f), RA 7166)

TERMINATION OF PRE-

PROCLAMATION CASE

Once a proclamation hasbeen made, the pre-proclamation case is nolonger viable and should bedismissed (Sardea vs.COMELEC). However thisrule presupposes theproclamation is valid. It doesnot apply if the proclamationis void, because it was basedon incomplete returns.(Matalam vs. COMELEC 271SCRA 733). The same holdstrue if the returns weremanufactured. (Agbayani vs.COMELEC,186 SCRA 464).

The same hols true wherethe computation of voteswas erroneous. (Mentang vs.COMELEC,229 SCRA 669)

All pre-proclamation casespending before theCOMELEC shall beterminated at the beginning

of the term of the office(noon of June 30) involved,and the rulings of the boardof canvassers shall bedeemed affirmed, withoutprejudice to the filing of anelection protest by theaggrieved party. (Penafloridavs. COMELEC,282 SCRA 241And Barroso vs Ampig,328SCRA 530)

The pre-proclamation case

should no longer be decidedif exclusion of thequestioned election returnwill not change the result of the election. (Matalam vss.COMELEC,271 SCRA 733)

EFFECT OF FILING ANELECTION PROTEST,QUOWARRANTO

1. As a general rule,the filing of an electionprotest or a petition for quowarranto precludes thesubsequent filing of a pre-proclamation controversy, oramounts to theabandonment of one earlier

filed. (Maruhom vs.COMELEC,331 SCRA 473)2. The filing of anelection protest results inabandonment of a pre-proclamation case even if the protest alleged it wasfiled as a precautionarymeasure, if he did notexplain why.(Laodenio vs.COMELEC,276 SCRA 405)3. The rule that thefiling of a protest implies

abandonment of the pre-proclamation case does notapply if:

i. The protestwas filed as a precautionarymeasure (mitmug vs.COMELEC,230 SCRA 54)

ii. The board of canvassers wasimproperly constituted, as when the Municipal

Treasurer took over the canvassing without havingbeen designated. (Saman vs. COMELEC,224 SCRA631)

CONTINUANCE OF THE CASE

If the petition appears meritorious on the basis of the evidence presented so far, the COMELEC orthe SC may order the case to continue. (Section16, RA 7166)

PROCLAMATION

1. The Board of Canvassers shall not makeany proclamation without any authorization fromthe COMELEC (Jamil vs COMELEC,283 SCRA 349)

2. Proclamation may be made if thecontested returns will not adversely affect theresults of the elections. (Section 20 (i), RA 7166)

3. The COMELEC may order the proclamationof other winning candidates whose election willnot be affected by the pre-proclamation case.(Section 21, RA 7166)

4. A candidate for mayor who finished secondcannot be proclaimed simply because thecandidate who received the highest number of

votes died, since he was not the choice of thepeople. (Benito vs. COMELEC, 23335 SCRA 436)

5. The wreath of victory cannot be transferredfrom the disqualified winner to the repudiatedloser because the law then as now only authorizesa declaration of election in favor of the person whohas obtained a plurality of votes to be declaredelected. (Sunga vs. COMELEC,288 SCRA 76)

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ANNULMENT OF PROCLAMATION

1. The COMELEC can annul a proclamationbecause of an error in the computation of thevotes in the statement of votes since theproclamation is void.(Torres vs. COMELEC,270SCRA 583)

2. Where the COMELEC, without prior noticeand hearing, annulled the proclamation of awinning party and directed the Municipal Board of Canvassers to reconvene and effect corrections inthe total number of votes received by thecandidates and thereafter proclaim the winner, theexpedient action to take is to direct the MunicipalBoard of Canvassers to reconvene and. afternotice and hearing in accordance with rule 27,section 7 of the COMELEC Rules of Procedure, toeffect the necessary correction, if any, in theelection returns and, on the basis thereof,proclaim the winning candidate or candidates as

members of the Sangguniang Bayan( Angelia vs.COMELEC,332 SCRA 757)

3. It is improper for the COMELEC to annul theproclamation of a winning candidate on the basisof new and additional evidence which were notpresented before the Board of Canvasssers andwhich were not furnished to the said candidate…Reliance should not be placed on mere affidavitsfor the purpose of annulling a winning candidate’sproclamation. (Velayo vs. COMELEC, 327 SCRA713)

4. A proclamation subsequently declared voidis no proclamation at all and while a proclaimedcandidate may assume office on the strength of the proclamation of the Board of Canvassers he isonly a presumptive winner who assumes officesubject to the final outcome of the electionprotest. (Lonzanida vs. COMELEC, 311 SRA 602)

ELECTION CONTESTS

A. Jurisdiction

Supreme Court( Presidential Electoral Tribunal)

PresidentVice-President ( Sec. 4, Art VII, Phil. Const)Senate Electoral tribunal – Senators

( Sec 17, Art VI, PC)

3. House of Representatives Electoral Tribunal-Congressmen ( Sec 17, Art VI,PC; Sampayan vs. Daza, 213 SCRA 807)

4. Commission on Elections

Regional Officials

Provincial OfficialsCity Officials ( Sec 2(2). Art IX-C, PC; Sec

249 BP 881)

6. Regional Trial Court- Municipal Officials( Sec 2(2), Art IX-C, PC; Sec 251, BP881, Papandayan vs. COMELEC , 230SCRA 469)

7. Metropolitan Trial Court, MunicipalCircuit Trial Court, and Municipal

Trial Court – Barangay Officials [ Sec2(2), Art IX-C, PC; Sec 252 BP 881;Regatcho vs. Cleto, 126 SCRA 342]Metropolitan Trial Court, MunicipalCircuit Trial Court, Municipal Trial Court– Sangguniang Kabataan ( Sec 1, RA7166)

B. Action which may be filed1. Election ProtestRequisites:i. Must be filed by any

candidate who has filed acertificate of candidacy andhas been voted upon for thesame office.

ii. On ground of fraud,terrorism, irregularities orillegal acts committedbefore, during or after thecasting and counting of

votesiii. Within 10 days from theproclamation of the resultsof the election.

Quo WarrantoRequisites:i. Filed by any registered voter

in the constituencyii. On grounds of ineligibility or

disloyalty to the Republic of the Philippines

iii. Within 10 days from theproclamation of the resultsof the election

C Procedure1. Period of filing contesta. Periods

i. President and Vice-President1) Protest- 30 days

( Rule 14, Rules of Presidential Electoral Tribunal)

2) Quo Warranto- 10days ( Rule 15, Rulesof PresidentialElectoral Tribunal)

ii. Senators

1) Protest – 15 days( Rule 14, RevisedRules of SenateElectoral Tribunal)

2) Quo Warranto – 10days ( Rule 15,Revised Rules of Senate Electoral

Tribunal)iii. Congressmen- 10 days

( Rule 16 and 17.1998 Rulesof House of RepresentativesElectoral Tribunal)

iv. Regional, provincial and cityofficials-10 days ( Sec 250and 253, BP 881; Republicvs. Dela Rosa, 232 SCRA 78)

v. Municipal Officials- 10 days( Secs 251 and 253, BP 881)

vi. Barangay Officials – 10 days( Sec 252 and 253, BP 881)

vii. Sangguniang Kabataan- 10days ( Sec 1, RA 7808)

b. Exceptions

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i. The period to file an electionprotest or quo warranto case is

suspended from the filing of a pre-proclamation caseuntil receipt of the orderdismissing the case. ( Sec248, BP 881; Gatchalian vsCA , SCRA 208)

ii. If the dismissal was elevatedto the Supreme Court , theperiod does not run untilreceipt of the dismissal bythe Supreme Court, becausereview by the SupremeCourt is part of theproceeding.( Gallardo vsRimando, 187 SCRA 463)

iii. The running of thereglementary period to file anelection protest is

tolled by a party’s elevation

to the Supreme Court of aCOMELEC decisionresolution of proclamation case.( Roquero vs

COMELEC , 289 SCRA 120)iv. The period to file an election

protest is suspended by thefiling of the petition to annulthe proclamation of thewinner ( Manahan vsBernardo, 283 SCRA 505)

v. Since the filing of a pre-proclamation case merelysuspends the running of theperiod to file an electionprotest, only the balance of the period is in case of dismissal. ( Roquero vsCOMELEC , 289 SCRA 150)

vi. Where the evidence of thelack of Filipino citizenship of a provincial official wasdiscovered only 18 monthsafter his proclamation, thequo warranto case should beallowed even if it filed morethan 10 days after his

proclamation. ( Frivaldo vsCOMELEC , 174 SCRA 245)

2 .Protestant or PetitionerPresident and Vice-President

i. protest-Candidate with second or thirdhighest number of votes ( Rule14, Rules of PresidentialElectoral Tribunal)

ii. Quo Warranto-any voter ( Rule 15, Rules of Presidential Electoral Tribunal)

Senator

i. Protest- anycandidate ( Rule 14, RevisedRules of Senate Electoral

Tribunal)ii. QuoWarranto- any voter ( Rule15, 1998 Rules of SenateElectoral Tribunal)

Congressmen

Protest- any candidateQuo Warranto- Any voter ( Rule 17,

1998 Rules of House of Representatives Electoral

Tribunal)Regional, provincial, City OfficialsProtest- any candidate ( Sec 250, BP

881)

Quo Warranto- any voter ( Sec 253,BP 881)Municipal OfficialsProtest- any candidate- ( Sec 251 ,

BP 881)Quo Warranto- any voter ( Sec 253,

BP 881)Barangay OfficialsProtest- any candidate- ( Sec 252,

BP 881)Quo Warranto- any voter ( Sec 253,

Bp 881)

Payment of Docket FeeWhen the protestantincluded a claim forattorney’s fees in his protestand paid the docket fee forhis claim for attorney’s feesbut did not pay the basicdocket fee for the electionprotest , the election protestshould be dismissed.( Gatchalian vs CA, 245SCRA 208)

Allegations in ProtestAn election protest should contain

the following jurisdictionalallegations:

The protestant is a candidate whoduly filed a certificate of candidacy and was voted forin the election

The protestee has been proclaimedelected

The date of proclamation ( Miro vsCOMELEC, 121 SCRA 466)

An election protest whichdoes not specify the precinct

where the allegedirregularities occurred isfatally defective . (Pena vsHRET , 270 SCRA 340)

Substantial compliance is sufficient . Thus the followingallegations sufficientlycomply with the firstrequirement.

The protestant received a certainnumber of votes ( Anis vsContreras, 55 Phil 929)

The protestant finished second in

the election ( Ali vs CFI of Lanao, 80 Phil 506)

The protestant was a candidatevoted for in the election witha valid certificate of candidacy for mayor( Pamania vs Pilapil, 81 Phil212)

The protestant was one of theregistered candidates votedfor and he received a

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certain number of votes( Jalandoni vs Sarcon, 94 Phil266)

The protestant was the officialcandidate of a [particularpolitical party and received acertain number of votes( Maquinay vs Bleza, 100

SCRA 702) The protestant was a candidate forgovernor and was voted for.( Macias vs COMELEC, 182SCRA 137)

Even if the protest did not allegethe date of theproclamation, it can bedetermined from the recordsof the case that it was filedon time, as when the protestwas filed on the tenth fromthe date the casting of votes

was held, the protest shouldnot be dismissed. (Miro vsCOMELEC, 121 SCRA 466)

Verification/Certificate of Absence of Forum Shopping

When the petioner failed to state inhis verification that thecontents of the electionprotest are true and correctof his own personalknowledge , said petitionlacks proper verification andshould be treated anunsigned pleading and mustbe dismissed. ( Soller vsCOMELEC, 339 SCRA 685)

Forum Shopping exists when thepetitioner files multiplepetitions or complaintsinvolving the same issues intwo or more tribunal oragencies. ( Domingo vsCOMELEC, 313 SCRA 311)

The requirement that every initialpleading should containcertification of absence of forum shopping applies to

election cases for CircularNo. 04-94 does notdistinguish ( Loyola vs CA245 SCRA 477, Tamarong vsLubguban, 269 SCRA 624)

SC Adm. Circular No 04-94requiring a certification of non-forum shopping isapplicable to election casesas it is mandatory . It is,however not jurisdictional..

The filing of a certification of absence of forum shopping

after the filing of the protestbut within the period forfiling a protest is substantialcompliance. ( Tumarong,supra)

The strict application of the non-forum shopping rule inelection contests would notwork to the best interest of the parties and theelectorate . An election

contest, unlike an ordinarycivil action , is clothed withpublic interest--- it involvesnot only the adjudication of private and pecuniaryinterest of rival candidatesbut paramount to theirclaims is the deep public

concern involved and theneed of dispelling theuncertainty over the realchoice of the electorate.( Barroso vs Ampig Jr, 328SCRA 530)

Joinder of Election Protest andQuo Warranto Cases

An election protest and quowarranto case cannot befiled jointly in the sameproceeding. However, theycan be filed separately.

( Luisaon vs Garcia , GR NoL-10916, May 10, 1957)If they were joined in an action ,

they should be orderedseparated. ( Pacal vs Ramos,81 Phil 20)

Composition of Board of Canvassers

The illegality of thecomposition of the board of canvassers cannot be raisedin a quo warranto case, asonly the ineligibility ordisloyalty of the winner canbe raised in such case( Samad vs COMELEC, 224SCRA 631)

Change TheorySubstantial Amendments tothe election protest cannotbe made after the expirationof the period for filing anelection protest. (Arroyo vs HRET, 224 SCRA384)

Preliminary MotionsA motion to dismiss and amotion for a bill of particulars may be filed inan election protest pendingbefore the regular courts ,since the COMELEC Rules of Procedure are not applicableto the regular courtsbecause of the exclusiverule-making power of the

Supreme Court. ( Aruelo vsCA, 227 SCRA 311)

10. AnswerAn

answer file out of timecannot be admitted ( Kho vs

COMELEC 279 SCRA463)

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Where the answer of the protestee was filed outof time and a

general denial wasentered in favor of theprotestee, the rule in

civil cases thatgeneral denials operates as

a n admission is notapplicable ( Loyola vsHRET, 229 SCRA 90)

A counter protestcannot be allowed if theanswer was filed out of

time ( Lim vsCOMELEC, 282 SCRA 53)

11. Cash DepositA protestee who filed acounterclaim for attorney’s

fees cannot be required tofile a cash deposit since acash deposit is required onlyfor a counter-protest ( Roavs Inting, 231 SCRA 57)

12. InjunctionA protestee cannot beenjoined from assumingoffice because of thependency of an electionprotest. Until the case isdecided against him, he hasthe right to assume office.( Careno vs Dictado, 160SCRA 759)

13. Substitutiona. Even i f the protestee has

resigned , the protest shouldcontinue , as a favorable

judgement will be entitledthe protestant to assume theoffice ( Delos Angeles vsRodriguez, 46 Phil 599) Thesame holds true if theprotestee accepted another

position ( Calvo vs Maramba,GR No 13206, January 7,1918)

b. If the protestee died, heshould be substituted byhis successor such as thevice-mayor ( Dela Victoriavs COMELEC, 199 SCRA 561)He cannot be substituted byhis heirs, since public officecannot be inherited. ( Abejavs Tanada, 236 SCRA 60)

c. If it is the protestant who

died, he should besubstituted by the publicofficial who would havesucceeded him, such as thevice-mayor. ( De Castro vsCOMELEC 267 SCRA 806)

14. AbandonmentA defeated candidate for presidentwho filed an election protest andran for senator should be deemed

to have abandoned the protest( Santiago vs Ramos, 253 SCRA559)

15. Summary JudgmentAn election protest cannot bedecided summarly, as summary

judgment applies only to ordinarycivil action for recovery of money

MELEC 199 SCRA 449)16. Opening of BallotsWhen an election protest is filed.

The ballot boxes should be openedwithout requiring proof of irregularities, and misappreciationof ballots ( Manahan vsBernardo, 283 SCRA 505)

The revision of ballots in an electionprotest filed with COMELEC shouldbe held in Manila ( Cabagnot vsCOMELEC, 260 SCRA 503)

17. Deferment of Counter ProtestA protestee cannot ask that beforemaking the revision of the ballotsinvolved in his counter-protest, thecourt first determine that theprotestant would win on the basis of the revisions of the ballots involvedin the protest (Abeja vs Tanada,236 SCRA 60)

18. CertiorariUnder Sec 50 of BP 697, theCOMELEC has jurisdiction overpetitions for certiorari, prohibitionand mandamus involving electioncases pending before the courtswhose decisions are appealabe to it( Relampagos vs CUmba, 243 SCRA690;Edding vs COMELEC 246 SCRA502)

Where a petition for certiorarimerely questioned the denial of themotion of the protestee forextension of the time to answer, theCOMELEC cannot affirm the decision

of the merits in the electionprotest. ( Acosta vs COMELEC, 293SCRA 578)

19. Evidence The genuineness of the handwritingin the ballots can be determinedwithout calling handwriting experts.( Erni vs COMELEC, 243 SCRA 578)

Unless the original documents orcertified true copies of them cannotbe produced or photo-copies

cannot be used as evidence( Arroyo vs HRET, 246 SCRA 384)

Ballots cannot be excluded on theground that they were written byany person or were marked on thebasis of mere photo-copies, as theyare not the best evidence( Nazareno vs COMELEC 279 SCRA89)

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20. DemurrerA motion to dismiss for insufficiencyof the evidence of the protestanthas rested is a demurrer to theevidence. If it was granted butreversed on appeal , the protesteeis deemed to have the right topresent evidence ( Enojas vs

COMELEC, 283 SCRA 229)

21. Decision

a. authentic election returncannot be annulled because the ballots

were lost or destroyed( Arroyo vs HRET 246 SCRA 384)

b. If the winner is ineligible, thecandidate who got the highest

number of votes cannot beproclaimed elected as he did not get the

majority or plurality of the

votes ( Sunga vs COMELEC,288 SCRA 76)

c. Actual damages may beawarded in accordance with the law

( Sec 259, BP 881)

The loser cannot be orderedto reimburse the winner for the

expenses incurred in the electionprotest for no law provides for it

( Atienza vs COMELEC 239 SCRA298)

d. The mere fact that thedecision in favor of the protestant was

reversed on appeal is notsufficient basis for the ruling that the

protestant should beawarded attorney’s fees because the protest

was filed forharassment

( Malaluan vsCOMELEC 254 SCRA 397)

e. Under Sec 264, par 1 of BP881, as amended , the award of

damages is no among theimposable penalties for the commission

of any of the electionoffenses thereunder by any individual

( Regalado vs CA 325 SCRA516)

22. Execution of Judgment Pending AppealBP 881 and other election laws do not

specifically provide for theexecution pending appeal for judgment in

election cases, unlike the Election Code of 1971…. The failure of the extant election laws toreproduce Sec 218 of the Election Code of 1971does not mean that the execution of judgment

pending appeal is no longer available inelection cases….

The Supreme Court has explicitlyrecognized and given approval to execution of j

judgment pending appeal in election casesfiled under existing laws.. The rationale whyexecution pending appeal is allowed in electioncases is to give much recognition to theworth of a trial judge’s decision as that which is

initially ascribed by the law to theproclamation by the board of canvassers.

Governed by Sec 2 , Rule 39 of the 1997Rules of Civil procedure. Execution pendingappeal should be based upon good reasons and acombination of two or more of them willsuffice to grant execution pending appeal:

i. Public interest involved orwill of the electorate

ii. The shortness of theremaining portion of the term of the contested

officeiii. Length of time that the

election contest has been pending ( Fernovs COMELEC 328 SCRA 52)

iv. Filing of bond as a conditionfor the issuance of a corresponding

writ of execution to answerfor the payment of damages which the

aggrieved party may suffer byreason of the execution pendingappeal ( Ramas vs COMELEC 286

SCRA 189)

• Execution pending appeal cannot beordered on the basis of gratuitousallegations that public interest isinvolved and that the appeal is dilatory.( Camlian vs COMELEC 271 , 271SCRA 757)

A motion for execution pending appeal filedafter the expiration of the period of appealcan no longer be granted ( Relampagos vs Cumba243 SCRA 690)

23. Motion for Reconsideration

a. One motion for reconsideration isallowed in the contest involving the

following :i. President- 10 daysii. Vice-President- 10 days

( Rule 65, Rules of Presidential Electoral Tribunal

iii. Senator- 10 days ( Rule 64,Rules of Senate Electoral Tribunal)

iv. Congressmen- 10 days( Rule 74, 1998 Rules of HRET)

v. Regional, Provincial and CityOfficials – 5 days ( Sec 2, Rule 19

COMELEC Rules of Procedure)b. No motion for reconsideration is

allowed in election contests involving thefollowing:

i. Municipal officials ( Sec 256,BP 881; Veloria vs COMELEC ,

211 SCRA 907)

However this rule should notbe applied to the dismissal of an

election protest for failure of thecounsel of the protestant to appear

at the pre-trial, since the pre-trial is notapplicable to the election

protest. ( Pangilinan vs De Ocampo, 232SCRA )

ii. Barangay Officials ( Sec 19,Rule 37 and Sec 12, Rule 38

COMELEC Rules of Procedure)

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iii. Sangguniang Kabataan ( Sec19, Rule 37 and Sec 12 Rule 38,

COMELEC Rules of Procedure)

c. Since only decisions of theCOMELEC en banc may be elevated to the

Supreme Court , a party who did notfile for a motion for reconsideration

of a decision of a division of the COMELECcannot elevate the case to theSupreme Court ( Reyes vs RTC of Oriental

Mindoro, 244 SCRA 41)

d. A resolution of the COMELEC enbanc is not subject toreconsideration, therefore anyparty who disagrees with it is to filea petition for certiorariunder Rule65 of the Rules of Civil procedure –a motion for reconsideration of anen banc ruling, resolution, order, or

decision except in election offensecases is a prohibited pleading underthe COMELEC Rules of Procedure.For a party to wait until theCOMELEC en banc denies hismotion for reconsideration would beto allow the reglementary period forfiling a petition for certiorari withthe SC to run and expire. ( Angelavs COMELEC , 322 SCRA 757)

24. Reviewa. Jurisdiction

i. Senator- Supreme Courtwithin 60 days ( Sec 4, Rule 65 Rules of

Court)ii. Congressmen- Supreme

Court within 60 days ( Lerias vs HRET;Sec 4, Rule 65 Rules of

Court)iii. Regional, provincial, and City

officials – Supreme Court within 30days ( Sec 7, Art IX-A Phil Const)iv. Municipal Officials

1) COMELEC within 5days ( Sec 22 RA 7166; Sec 3 Rule 22

of COMELEC Rules of Procedure, Lindo vs COMELEC,

194 SCRA 25)2) Supreme Court-

within 30 days ( Rivera vs COMELEC 199SCRA 178)

v. Barangay Officials1) COMELEC within 5

days ( Sec 2(2) ,Art IX-C, Phil Const;Sec 3, Rule 22 COMELEC

Rules of Procedure; calucag vsCOMELEC 274 SCRA 405)2) Supreme Court within

30 days ( Flores vs COMELEC 184SCRA 484)

b. FormWhere the appellant filed an appeal

brief instead of a notice of appeal tothe COMELEC , the appeal should

not be dismissed, since thedetermination of the will of the people

should not be thwarted of technicalities ( Pahilan vs Tabalba, 230

SCRA 205)

c. Failure to Pay Appellate Docket Fee

i. An appeal may be dismissedfor failure of the appellant to pay the

appellate docket fee ( Reyesvs RTC of Oriental Mindoro, 244

SCRA 41)

ii. An appeal may be dismissedif the full appellate docket fee wasnot paid , as payment of the full

amount is indispensable forperfection of the appeal ( Rodillas vs

COMELEC, 245 SCRA 702)

d. Scope of Authority

Errors committed by the trial courtmay be considered even if they were

not assigned as errors ( Arao vsCOMELEC 210 SCRA 290)

XIII. CRIMINAL OFFENSES

A,. Criminal and Electorate Aspects of AnElection Offense

An election offense has criminal as well aselectoral aspects ( Sunga vs COMELEC 288 SCRA76)

1. Its criminal aspect involves theascertainment of the guilt or innocence of

the accused candidate like in anyother criminal case, it usually entails a

full-blown hearing and the quantumof proof required to secure a

conviction beyond reasonable doubt.

2. Its electoral aspect is adetermination of whether the offender should be

qualified from office. This isdone through administrative proceeding

which is summary in character andrequires only a clear preponderance of

evidence.

B. Jurisdiction to try the case

The expanded jurisdiction of the Municipal Trail Court ( RA 7691) does not include criminalcases involving election offenses, because byspecial provision of Sec 268 of BP 881 they fallwithin the jurisdiction of the Regional Trial Court( COMELEC vs Noynay 292 SCRA 354)

Under Sec 268 of BP 881, regional trialcourts have exclusive jurisdiction to try anddecide any criminal action or proceeding forviolation of the Code including those penalized byimprisonment not exceeding 6 years, but exceptthose relating to the offense of failure to vote

( Juan vs People 322 SCRA 125)

C. Offenses1. Vote-buying

a. The fact that at least onevoter in at least 20% of the precincts in amunicipality , city or province was offered moneyby the relatives, leaders or sympathizers of acandidate to promote his election shall create apresumption of conspiracy to bribe voters.

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b. The fact that at least 20% of the precincts of the municipality, city or provinceto which the office aspired for by the candidate isaffected by the offer creates the presumption thatthe candidate and his campaign managers areinvolved in the conspiracy.

c. Any person who is guilty andwillingly testifies shall be exempt from prosecution

( Sec 28, RA 6646)

d. The traditional gift-giving bythe municipality during Christmas which was doneto induce voters for the mayor does not constitutevote-buying ( Lozano vs Martinez, 285 SCRA 256)

2. Appointment of New Employees The prohibition against appointment

of a government employee within 45 days beforeregular election refers to positions covered by thecivil service and does not apply to thereplacement of a councilor who died ( Ong vd

Martinez, 188 SCRA 830)

3. Unauthorized Entry into PollingPlace

Mere presence of unauthorizedperson inside a polling place is an offense( COMELEC vs Romillo, 158 SCRA 716)

4. Transfers of Government Employees

Since the Omnibus Election Codedoes not per se prohibit the transferof government employees duringthe election period but onlypenalizes such transfers madewithout the prior approval of theCOMELEC in accordance with theimplementing regulations, thetransfer of government employeesbefore the publication of theimplementing regulations is not anelection offense. ( People vs Reyes,247 SCRA 328)

Two elements of the offenseprescribed under Sec 261 (h) of BP 881, as

amended are: (1) a public officer oremployee is transferred or detailed

within the election period as fixed by theCOMELEC , and (2) the transfer ordetail was effected without prior approval of theCOMELEC in accordancewith its implementing rules and regulations( Regalado vs CA 325 SCRA516)

5. Carrying Deadly Weapon in Precinct

To support a conviction carrying a deadlyweapon inside a precinct, it is necessary thatthe deadly weapon be seized from the accused

while he was in precinct ( Mappala vsMunoz 240 SCRA 600)

6. Failure to make Proclamation

Proclaiming a losing candidate instead of the winner also constitutes failure to makea proclamation ( Agujetas vs CA 261 SCRA 17)

7. Refusing to credit candidate with vote

Under section 27(b) of RA 6646,two act not one, are penalized i.e, first, thetampering, increasing or decreasing of votesreceived by a candidate in any election, andsecond, the refusal, after proper verification andhearing to credit the correct votes or deduct suchtampered votes.(Pimentel vs. COMELEC,289 SCRA586)

D. Prosecution

1. Section 2(6),Art IX-C “File, upon a verifiedcomplaint, or on its own initiative, petitions incourt for inclusion or exclusion of voters;investigate and, where appropriate, prosecutecases of violations of election laws, including actsor omissions constituting election frauds, offenses,and malpractices.”

The COMELEC has exclusive jurisdiction toconduct preliminary investigation of and

prosecute election offenses (Naldaza vs.Lavilles,254 SCRA 286)

2. This holds true even if the offense iscommitted by a public officer in relation tohis office.(Corpuz vs. Tanodbayan, 149SCRA 2281)

3. Whatever initiated motu propio or filed withthe COMELEC by any other party, the complaintshall be referred to the COMELEC Law Departmentfor investigation.. The COMELEC Chairman, in hispersonal capacity may file directly with theCOMELEC Law Department pursuant to Section 4,Rule 34 of the COMELEC Rules of Procedure. Norequirement in section 5 that only the COMELECen banc may refer a complaint to the LawDepartment for investigation nor is there a ruleagainst the COMELEC Chairman directing theconduct of a preliminary investigation, even if hehimself were the complainant in his privatecapacity… Where the complaint was directly filedwith the Law Department under Section 4 of Rule32 of the COMELEC RULES of Procedure obviouslythere is no need to refer such complaint to thesame Law Department… Under Section 5 of Rule34 of the COMELEC Rules of Procedure, the

preliminary investigation may be delegated to anyof those officials specified in the rule upon thedirection of the COMELEC Chairman(Laurel vs.Presiding Judge, RTC Manila Br 10, 323 SCRA 778)

4. A provincial election supervisor authorizedto conduct a preliminary investigation may file acase without need of approval of the provincialprosecutor. (Pp. Vs. Inting,187 SCRA 788)

The COMELEC can deputize prosecutors toinvestigate and prosecute offenses evenafter election. (Pp. Vs. Basilla,179 SCRA 87)

Since it is a preliminary investigation, it is theCOMELEC who will determine the existenceof probable cause, the complainant cannotask it to gather evidence in support of thecomplaint. (Kilosbayan Inc vs.COMELEC,280 SCRA 8920

The court in which a criminal case was filed mayorder the COMELEC to order areinvestigation. (Pp. Vs. Delgado, 189 SCRA715)

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A prosecutor who was deputized by the COMELECcannot oppose the appeal filed by theCOMELEC from the dismissal of a case,since the power to prosecute electionoffenses is vested in the COMELEC.(COMELEC vs. Ssilva,286 SCRA 177)

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