Definition:
Suffrage– the right and obligation of qualified citizens to vote in the election of certain national and local of the government and in the decisions of public questions submitted to the people. It includes within its scope: election, plebiscite, initiative, referendum and recall.
Election– the means by which the people choose their officials for a definite and fixed period and to whom they entrust for the time being as their representatives the exercise of the powers of the government, It involves the choice of selection of candidates to public office by popular vote.
Plebiscite– a vote of the people expressing their choice for against a proposed law or enactment submitted to them. An election at which any proposed amendment to or revision of the Constitution is submitted to the people for their ratification. A constitutional requirement o secure the approval of the people directly affected, before certain proposed changes affecting local governments units may be implemented.
Initiative– it is the process by which the registered voters directly propose, amend laws, national or local, though an election called for the propose. Amendments to the Constitution may likewise be directly proposed by the people though initiative.
Referendum- it is at he submission of a law pass by the national or local legislative body to the registered voters of an election called for the purpose for their ratification or rejection.
Recall- it is a method by which a public officer may be removed from office during his tenure or before the expiration of his term by a vote of the people after registration of a petition singed by a required percentage of the qualified voters.
Since the right of suffrage is a political and not a natural right, it is within the power of the state prescribe the manner in which such right shall be exercised. Congress is mandated by the Constitution (Sec.2, Art. V):
To provide a system for securing the secrecy and sanctity of the ballot, and for absentee voting by qualified Filipinos abroad, and
To design a procedure for the disabled and the illiterate to vote without the assistance of other persons.
THE COMMISSION ON ELECTIONS
Composition, Qualifications, Appointment,
Term of Office
The COMELEC is composed of a chairman and six (6) Commission, The Chairman and the Members of the Commission shall be:
• natural -born citizens of the Philippines
• at least thirty-five years of age
• holders of a college degree
• must not have been candidates for any elective position in the immediately preceding election
• majority thereof, including the Chairman shall be members of the Philippines Bar who have been engaged in the practice of law for at least 10 years (reason: COMELEC exercises quasi-judicial powers)
The Chairman and Members are appointed by the president with the consent of the commission on Appointment for the term seven (7) years without reappointment on a staggered basis to make the COMELEC a continuing and self-perpetuating body. Consequently, its members would have the benefit of the experience and expertise of the order members of the performance of its functions, and makes for greater responsibility for its policies and decisions and serve as guarantee against arbitrary action which is likely to occur in a body handling partisans questions.
A member appointment and designations in temporary or acting capacity are not allowed to preserve its independence.
Disabilities, inhibitions\disqualifications
1. Shall not, during tenure, hold any other office or employment
2. Shall not engage in the practice of profession
3. Shall not engage in active management or control of any business which in any ay may be affected by the functions of his office
4. Shall not be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies or instrumentalities, including GOCC s or their subsidiaries.
Safeguards to insure the independence of the COMELEC
It is constitutionally created; may not be abolished by statute
It is expressly described as “independent”
It is conferred with certain powers and functions which cannot be reduced by statute.
The chairman and members cannot be removed except by impeachment.
The chairman and members are given fairly long term of office of seven years.
The chairman and members may not be reappointed or appointed in an acting capacity.
The salaries of the chairman and members are relatively high and may not be decreased during continuance in office.
The COMELEC enjoy fiscal autonomy.
The COMELEC may promulgate its own procedural rules, provided they do not diminish, increase or modify substantive rights (though subject to disapproval by the Supreme Court)
The Chairman and Members are subject to certain disqualifications calculated to strengthen their integrity.
The COMELEC may appoint their own officials and employees in accordance with Civil Service Laws.
En Banc & Division Cases
SEC 3, ART IX-C “The COMELEC may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decision shall be decided by COMELEC en banc”
The Supreme Court set aside the resolutions/decisions of the COMELEC because dthe COMELEC en banc tokk original cognizance of the cases without referring them first to the appropriate Division (Sarmiento vs. COMELEC 212 SCRA 307; Zarate vs COMELEC, 318 SCRA 608)
Interlocutory orders issued by a division of the COMELEC cannot be elevated to the COMELEC en banc. (Kho vs. COMELEC, 279 SCRA 463)
The following cases must be decided in Division before they may be heard en bnc on motion for reconsideration:
• Petition to cancel a certificate of candidacy. (Garvida vs. Sales, 271 SCRA 764)
• Cases appealed from the RTC or MTC (Zarate vs. COMELEC,318 SCRA 608)
• Petition for certiorari involving incidental issues of election protest.(Soller vs. COMELEC,339 SCRA 685)
The COMELEC en banc, however, may directly assume jurisdiction over petitions for correction of manifest errors in the tabulation or tallying of results (Ststement of votes) by the Board of Canvassers, notwithstanding that the same is a pre-proclamation comtroversy. Section 5, Rule 27 of the 1993 Rules of the COMELEC expressly provides that pre-proclamation controversies involving correction of manifest errors in the tabulation of results may be filed directly with the COMELELEC cen banc. (Torres vs. COMELEC,270 SCRA 583; Ramirez vs. COMELEC,270 SCRA 590)
The COMELEC en banc determines the existence of probable cause.(Faelnar vs. COMELEC,331 SCRA 429)
DECISIONS
ART IX-A, Section 7 “Each commission(COMELEC) shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by the Commission or by law; any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within 30 days from receipt of a copy thereof.”
The COMELEC shall decide by a majority vote of all its members in any case or matter brought before it within 60 days from date of its submission for decision or resolution. Two members shall constitute a quorum for the transaction of the official business of the Division. A case being heard by it shaa be decided with the unanimous concurrence ofc all three Commissioners and its decision shall be considered a decision of the commission. If this required number is not obtained, as when there is a dissenting opinion, the case may be appealed to the Commission en banc, in which case the vote of the majority shall be the decision of the Commisssion.
The court holds that 2-1 decision rendered by the First Division was a valid decision under ART IX-A ,Section 7 of the Constitution. Furthermore, the three members who voted to affirm the First Division constituted a majority of the five members who deliberated and voted thereon en banc and their decision is also valid under the aforecited constitutional provisions. (Cua vs. COMELEC, 156 SCRA 587)
One who is no longer a member of the COMELEC at the time the final decision or resolution is promulgated cannot validly take part in that resolution or decision,much more could he be the ponente of the resolution or decision.(Ambil vs. COMELEC, 344 SCRA 358)
RULES OF PROCEDURE
The COMELEC en banc may promulgate its own rules concerning pleadinga and practice before it or before any of its offices. Such rules, however, shall not diminish,increase or modify substantive rights. The Rules of Court applies suppletorily to proceedings before the COMELEC. (Paangarungan vs. COOMELEC,216 SCRA 522)
CONSTITUTIONAL POWERS AND FUNCTIONS
• Enforce and administer laws relative to conduct of elections
The regular courts have no jurisdiction to entertain a petition to enjoin the construction of public works projects within 45 days before an election.(Gallardo vs. Tabamo,218 SCRA 253)
• Decide election contests involving regional, provincial and city officials
ELECTION CONTEST refers to the adversary proceedings before which matters involving the title or claim to an elective office made before or after proclamation of the winner,is settled whether or not the contestant is claiming the office in dispute. It is neither a civilk action nor crimianal proceeding;it is a summary proceeding of a political character. Its purpose is to ascertain the candidate lawfully elected to office.(Javier vs. COMELEC,144 SCRA 194)
The COMELEC has exclusive appellate jurisdiction over,inter alia, contest involving elective barangay officials decided by trial courts of limited jurisdiction.(Beso vs. abolla,327 SCRA 100)
The provision of RA 6679 granting appellate jurisdiction to the RTC over decisions of MTCs in electoral cases involving elective barangay officials is unconstitutional. (Flores vs. COMELEC,184 SCRA 484)
The COMELEC is the proper appellate court clothed with jurisdiction to hear the appeal, which must first be filed wiyhin 5 days after the promulgation of the MTCs decision(Antonio vs. COMELEC,315 SCRA 62)
The election of SK are goverened by the Omnibus Election Code. Any contest relating to the election of the SK (including the chairman whether pertaining to their eligibility or the manner of their election is cognizable by MTCs,MTCCs, and MeTCs. It is the proclamation which marks off the jurisdiction of the courts from the jurisdiction of election officials. (Marquez vs. COMELEC, 313 SCRA 103)
The COMELEC has appellate jurisdiction over election protest cases involving elective municipal officials decided by courts of general jurisdiction. (Carlos vs. Angeles,346 SCRA 671)
• Decide all questions affecting elections
The COMELEC has no jurisdiction over questions involving the right to vote which includes qualifications and disqualifications of voters, the right of a person to be registered as voter, the right to cast his vote, and other allied questions. Such questions shall be decided by the courts.( Naciionalista Party vs. COMELEC, 84 Phil 49)
Election contests involving elections of SK officials do not fall within section 252 of the OEC and paragraph 2,section ART.IX-C of the Constitution and no law in effect prioir tom the ratification of the constitution has made the SK Chairman an elective barangay official. SK elections are under the direct control and supervision of the DILG. (Ahman vs. Mirasol,276 SCRA 501) Decisions/determinations made by the COMELEC in the exercise of this power, being merely administrative(not quasi judicial) in character, may be questioned in an ordinary civil action before the trial courts.(Filipinas Engineering vs. Ferrer,135 SCRA 25)
• Deputize law enforcement agencies with the concurrence of the President
• Register political parties and accredit its citizens arms
• File petitions, investigate and prosecute
• Recommend measures to improve election laws
• Recommend the imposition of disciplinary action upon an employee it has deputized for violation of its order.
Since the COMELEC can recommend that disciplinary action be taken against an officer it had deputized, idt can investigate an administrative charge against such an officer to determine whether or not it should recommend that disciplinary action can be taken against him (Tan vs. COMELEC,237 SCRA 353)
• Regulation of public entities and media-
Section 4, IX-C “The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants special privileges, or concessions granted by the Government or any subdivision, agency or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space and the right to reply, including reasonable equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.
The authority given to the COMELEC is to be exercised ofr the purpose of ensuring free, orderly, honest, peaceful and credible elections and only during the election period. Note that GOCCs are among those that may be supervised and regulated by the COMELEC.
The SC upheld the validity of Section 11(b), RA 6646, prohibiting the sale odr donation of print space or airtime for political advertisements, and the authority of the COMELEC to procure print space (upon payment of just compensation) and free airtime for allocation to candidates.(Telecommunication and Broadcast Attorneys of the Philippines vs. COMELEC,289 SCRA 33)
An exit poll is a species of electoral survey conducted by qualified individuals or groups of individuals for the purpose of determining the probable result of an election by confidentially asking randomly selected voters whom they have voted for, immediately after they have officially cast their ballot.(ABS-CBN Broadcasting corporation vs. COMELEC,323 SCRA 811)
An absolute prohibition would be unreasonably restrictive,because it effectively prevents the use of exit poll data not only for election-day projections,but also for long term research. The COMELEC concern with the possible non communicative effect of exit polls-disorder and confusion in the voting centers- does not justify a total ban on them. The holding of exit polls and the dissemination of their results through mass media constitute an essential part of freedom of speech and of the press. The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification (ABS-CBN Broadcasting Corporation vs. COMELEC)
The SC held that SEC 5.4 of the Fair Election Act prohibiting publication of survey results 15 days immediately preceding a national election and 7 days before a local election violates the constitutional rights of speech,expression,and the press because:
a. It imposes prior restraint on the freedom of expression;
b. It is a direct and total suppression of the category of expression even though such suppression is only for a limited period; and
c. The governmental interest sought to be promoted can be achieved by means other than the suppression of freedom of expression. (Social Weather Station vs. Comelec, GR No. 147571, May 5,2001)
• Make minor adjustments of the apportionment of legislative districts.
This refers mainly to the power to correct an error because of the omission of a municipality or an error in the name of a municipality and does not include the power to make a reappointment of legislative districts. (Montejo vs. COMELEC,242 SCRA 415)
• Adjust the apportionment in a case of creation of new provinces or cities.
The COMELEC is merely authorized to adjust the number of congressmen apportioned to an old province if a new province is created out of it and does not authorize the COMELEC to transfer municipalities from one legislative district to another. (Montejo,supra)
• Pardon violators of election laws.
• Promulgate rules of procedure concerning pleadings and practice before it or any of its offices.
• Submit report on how a previous elections was conducted.
STATUTORY POWERS
1. Power to declare failure of election and call for special election.
2. Exclusive original jurisdiction over all pre-proclamation controversies.
3. Issue writs of certiorari, prohibition
The COMELEC has the authority to issue extraordinary writs of certiorari, prohibition and mandamus in aid of its exclusive appellate jurisdiction.
Both the SC and the COMELEC have concurrent jurisdiction to issue writs of certiorari, prohibition, and mandamus over decisions of trial courts of general jurisdiction in election cases involving elective municipal officials. The court takes jurisdiction first shall exercise exclusive jurisdiction over the case. (Carlos vs. Angeles, 346 SCRA 571)
4. Summons parties to a controversy pending before it
5. Enforce and execute its decisions and orders
6. Punish contempts provided for in the Rules of Courts.
The COMELEC has the power to cite for contempt, but this power may be exercised only while the COMELEC is engaged in the performance of quasi-judicial functions and not administrative functions.(Guevarra vs. COMELEC, 104 PHIL 269 and Masangcay vs. COMELEC, 6 SCRA 270)
7. Promulgate rules and regulations implementing the Election Code
8. Exercise direct and immediate supervision and control over officials required to perform duties relative to the conduct of election.
9. Prescribe forms to be used in the election
10. Procure any supplies, equjipment, materials or services needed for the holding of election
11. Prescribe the use or adoption of the latest technological and electronic devices
12. Carry out continuing and systematic campaign to educate the public about elections
13. Fix other reasonable periods for certain pre-election requirements.
14. Enlist non-partisan groups to assist.
JUDICIAL REVIEW OF DECISIONS
Any decision, order or ruling of the COMELEC en banc may be brought to the SC on certiorari by the aggrieved party within 30m days from receipt of the copy thereof. When the Supreme Court reviews a decision of the COMELEC, the court exercises extraordinary jurisdiction, thus the proceeding is limited to issues involving grave abuse of discretion resulting in lack or excess of jurisdiction and does not ordinarily empower the court to review the factual findings of the COMELEC. (Aratuc vs. COMELEC,88 SCRA 251)
The mode by which a decision, order or ruling en banc may be elevated to the SC is the civil action of certiorari under Rule 65 of the 1964 Revised Rules of Court, now expressly provided in Rule 64, 1997 Rules of Civil Procedure, as amended. (Ambil vs. COMELEC,344 SCRA358)
A special civil action for certiorari is the proper remedy to question any final order, ruling and decision of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers.(Guerero vs. COMELEC,336 SCRA 458)
What is contemplated by the term “final orders, rulings and decisions” of the COMELEC reviewable by certiorari by the Suprerme Court as provided by law are those rendered in actions or proceedings before the COMELEC and taken cognizance of by the said body in the exercise of its adjudicatory (or quasi-judicial) powers. (Salva vs. Makalintal, 340 SRA 506)
COMELEC Resolution No. 2987 which provides for the rules and regulations governing the conduct of plebiscite, is not issued pursuant to the COMELEC’s quasi-judicial functions but merely as an incident of its inherent administrative functions over the conduct of plebiscites, and any question pertaining to the validity of said resolution may be well taken in an ordinary civil action before the trial courts.(Salva ,supra)
The alleged nature or the COMELEC to implement its resolution ordering the deletion of a candidate’s name in the list of qualified candidates does not call for the exercise of the SC’s function of judicial review as it is undoubtedly administrative in nature, beyond judicial interference.(Chavez vs. COMELEC, 211 SCRA 315)
A resolution of the COMELEC awarding a contract for the supply of voting booths to a private party, as a result of its choice among various proposals submitted in response to its invitation to bid, is not reviewable by certiorari as it is not order rendered in the legal controversy before it but merely as incident to its inherent administration functions over the conduct of elections. Any question arising from said order may be taken in an ordinary civil action. (Filipinas Engineering vs. COMELEC, 344 SCRA 358)
The Supreme Court has no power to review via certiorari, an interlocutory order or even a final resolution of a Division of the COMELEC. (Ambil vs. COMELEC, 244 SCRA 358)
A decision, order or resolution of a division of the COMELEC must be reviewed by the COMELEC en banc decision may be brought to the supreme Court on certiorari. (Ambil vs. COMEL, 358)
VOTERS: QUALIFICATION AND REGISTRATION
Qualification for Suffrage
Filipino citizenship- it may be by birth or naturalization.
Age- a person may be registered as a voter although he is less than 18 years at the time of registration if he will be at least 18 on the day of election.
Residence- at least 1 year in the Philippines, and at least 6 months where he proposes to vote immediately preceding the election. Any person who, on the days of registration may not have been reached the required period of residence but who, on the day of election shall possess such qualification, may register as voter.
No literacy, property or other substantive requirement shall be imposed on the exercise of suffrage.
Any person who temporarily resides in another city municipality or country solely by reason of occupation, profession, employment in public or private service, educational activities, work in the military or naval reservations within the Philippines, service in the AFP, PNP or confinement or detention in government institutions, shall not deemed to have lost his original residence. (Sec. 9, RA 8189)
In election cases, the Supreme Court treats domicile and residence and residence as synonymous terms. In order to acquire a new domicile by choice, there must concur (1) residence or bodily presence in the new locality;(2) an intention to remain there; and (3) an intention to abandon the old domicile. The residence at the place chosen for the new domicile must be actual. (Romualdez vs. RTC,226 SCRA 406)
Disqualifications
1. Any person sentenced by the final judgment to suffer imprisonment for not less than one year.
2. Any person adjudged by the final judgment of having committed
(a) any crime involving disloyalty to the government or
(b) any crime against national security
(c) firearms laws.
3. Insane or incompetent persons as declared by competent authority.
Removal of disqualification for conviction
• Plenary pardon
• Amnesty
• Lapse of 5yaers after service of sentence (Sec.111, RA 8189)
System of Continuing Registration
The personal filing o application of registration of voters shall be conducted daily in the office of the Election Office during regular office hours. No registration shall, however, be conducted during the period starting 120 days before a regular election and 90 days before a special election. (Sec. 8, RA 8189)
The Supreme Court upheld the validity of the COMELEC resolution denying the petition of certain youth sectors to conduct a special registration: “Petitioners were not denied the opportunity to avail of the continuing registration under RA 8189..the law aids the vigilant and not those who slumber on their rights…
“In a representative democracy the right of suffrage, although afforded a prime niche in the hierarchy of right embodied in the fundamental law., ought to be exercised within the proper bounds frames and framework of the Constitution and must properly yield to pertinent laws skillfully enacted by the Legislature…”
“The right of suffrage ardently invoked by herein petitioners is not at all absolute…the exercise of suffrage, as the enjoyment of all other rights subject to existing substantive and procedural requirement embodied in our Constitution, statute books and other repositories of law.” (AKBAYAN – Youth et al. vs. COMELEC GR No. 147066, March 26, 2001)
Inclusion and Exclution Cases
1. Jurisdiction
i. Municipal or Metropolitan Trial Court – original and exclusive Jurisdiction\
ii. Regional Trial Court – appellate jurisdiction (5 days) (Sec. 33, RA 8189)
iii. 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
a. Inclusion
Private person whose application was disapprove by the Election Registration Board or whose name was stricken out from the list of waters (Sec. 34, RA 8189)
COMELEC [Sec. 2(6), Art. IX-C, PC]
b. Exclusion
i. Any registered voter in city or municipality
ii. Representative of political party
iii. Election Officer (Sec. 39, RA 8189)
iv. COMELEC [Sec. 2(6), Art. IX – C, PC]
3. Period for Filing
a. Inclusion – Any day except 105 days before regular election or 75 days before a special election. (Sec. 24, RA 8189)
b. Exclusion – Any time except 100 days before a regular election or 65 days before special election. (Sec. 35 RA 8189)
4. Procedure
a. Petition for exclusion shall be sworn (Sec. 35 , RA 8189)
b. Each petition shall refer only to only one precinct. (Sec. 35, RA 8189)
c. Notice
i. Parties to be notified
5. Inclusion – Election Registration Board
i. ii Exclusion –
6. Election Registration Board
7. Challenged voters [Sec. 32(b), RA 8189]
8. Manner
Notice stating the place day and hour of hearing shall be served through any of the following means:
• Registered mail
• Personal delivery
• Leaving copy in possession of sufficient discretion in residence.
• Posting in city hall or municipal hall and two other conspicuous places in the city or municipality at least 10 days before the hearing (Sec. 32(b), RA 8189)
Any voter, candidate or political party affected may intervene. (Sec. 32c, RA 8189)
Non-appearance is prima facie evidence the registered voter is fictitious (Sec. 32 (f), RA 8189)
Decision cannot be rendered on stipulation of facts (Sec. 32 (f), RA 8189)
No motion for reconsideration is allowed, (Sec. 33, RA 8189)
Annulment of List of Voters
1. Upon verified complaint of any voter, election officer or registered political party or motu propio, the COMELEC may annul a list of votes which was not prepared in accordance with RA 8189 or whose preparation was affected with fraud, bribery, forgery, impersonation, intimidation, force or other similar irregularity or statistically improbable.
2. No list of voters shall be annulled within 60 days before an election (See. 33, RA 8189)
The annulment of the list of voters shall not constitute a ground for a pre-proclamation controversy. (Ututalum vs. COMELEC, 181 SCRA 335)
When an assailed order had been issued pursuant to COMELEC’s administrative powers in the absence of any finding of grave abuse of discretion in declaring a precinct as non – existent, said order shall stand, judicial interference being unnecessary and uncalled for… The sacred right of suffrage guaranteed by the Constitution is not tampered when a list of fictitious voters is excluded from an electoral exercise. (Sarangani vs. COMELEC, 334 SCRA 379)
Election precinct is the basic unit of territory established by the COMELEC for the purpose of voting.
A polling place refers to the building or place where the board of election inspectors conduct proceedings and where the voters cast their votes.
Voting center refers to the building or place where the polling place is located.
List of voters refers to an enumeration of names of registered voters in a precinct duly certified by the Election Registration Board for use in the election.
Book of voters refers to the compilation of all registration records in a precinct.
Signature of Chairman at back of every ballot
In every case before delivering an official ballot to the voter, the Chairman of the BEI shall, in the presence of the voter, affix his signature at the back thereof. Failure to so authenticate shall be noted in the minutes of the BEI and shall constitute an election offense punishable under Sections 263 and 264 of the OEC.
IV. POLITICAL PARTIES AND PARTY – LIST SYSTEM
Political party or party when used in the OEC means an organized group of persons pursuing the same ideology, political ideas or platforms of government and includes its branches or divisions. A political party may refer to a local regional or national party existing and duly registered and accredited by the COMELEC. To acquire juridical personality, qualify for accreditation, and to be entitled to the rights of political parties, a political party must be registered with the COMELEC. The following political parties cannot be registered.
1. Religious sects
2. Those which seeks to achieve their goals through unlawful means
3. Those which refuse to adhere to the Constitution
4. Those that are supported by any foreign government
GROUNDS FOR CANCELLATION OF REGISTRATION
1. Accepting financial contributions from foreign governments or their agencies (for partisan election purposes.) (Sec.2(5), Art IX – C, PC)
2. It is a religious sect or denomination, organization or association organized for religious purposes.
3. It advocates violence or unlawful means to seek its goal
4. It is a foreign party or organization
5. It violates or fails to comply with laws, rules and regulations relating to elections
6. It declares untruthful statements in its petition
7. It has ceased to exist for at least one year , and
8. Fails to participate in the last two preceding elections, or fails to obtain at least 2% of the votes cast under the party – list system in the two preceding elections for the constituency in which it was registered.
• A party which fails to obtain at least 10% of the votes cast in the constituency in which it nominated candidates in the election next following its registration shall forfeit its registration.
Party System. A free and open party system shall be allowed to evolve according to the free choice of the people. [Sec 2(5) Art. IX – C, PC]
The Party–List System, is a mechanism of proportional representation in the election of representatives to the House of Representatives, from national, regional and sectoral parties, organizations and coalitions thereof registered with the COMELEC. The Party–list system was devised to replace the reserve seat system – the very essence of the party – list system is representation by election. (Veterans Federation Party vs. COMELEC, 342 SCRA 244)
GUIDELINES FOR SCREENING PARTY LIST PARTICIPANTS
1. The political party, sector, organization must represent the marginalized and underrepresented groups identified in Sec. 5 of RA 7941. majority of its membership should belong to the marginalized and underrepresented;
Proportional representation refers to the representation of the marginalized and underrepresented as exemplified by the enumeration in Sec/ 5 of the law, namely; labor peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women youth, veterans, overseas workers and professionals. The party – list organization or party must factually and truly represent the marginalized and underrepresented constituencies mentioned in Sec. 5 .(Ang Bagong Bayani – OFW Labor Party, et al vs. COMELEC et al GR No. 147589. June 26, 2001)
2. While even major political parties are expressly allowed by RA 7941 and the Constitution, they must comply with the declared statutory policy of “Filipino citizens belonging to marginalized and underrepresented sectors to be elected to the House of Representatives. “Thus, they must show that they represent the interest of the marginalized and underrepresented;
Political parties, even the major ones, may participate in the party – list elections, except for purposes of May 11, 1998 elections. The requisite character of these organizations must be consistent with the purpose of the party – list system, as laid down in the Constitution and RA 7941 . . .
Under the Constitution and RA 7941, provide respondents cannot be disqualified from the party list elections, merely on the ground that they are political parties. Sec. 5 Art. VI of the Constitution provides that members of the House of Representatives may be elected through a party – list system of registered national, regional and sectoral parties or organizations. Furthermore, under Secs. 7 and 8, Art IX – C of the Constitution, political parties may be registered under the party – list system. (Ang Bagong Bayani – OFW Labor Party, et al vs. COMELEC, et al. GR No. 147589, June 26, 2001)
3. That religious sector may not be represented in the party – list system, except that priest, imam or pastors may be elected should they represent not heir religious sect but the indigenous community sector.
4. A party or an organization must not be disqualified under Sec. 6, RA 7941;
5. The party organized must not be adjunct of, or a project organized or an entity funded or assisted by, the government;
6. The party, including its nominees must comply with the qualification requirements of Sec. 9, RA 7941 as follows: No person shall be nominated as party list representative unless he is:
a. natural – born – citizen of the Philippines
b. a registered voter,
c. a resident of the Philippines for a period not of no less than one year immediately preceding the day of the election;
d. able to read and write;
e. a bonafide member of the party or organization which he seeks to represent for at least 90 days preceding the day of the election; and
f. At least 25 years of age on the day of the election. In case of a nominee of the youth sector, at least be 25 but not more than 30 years of age on the day of the election. Any youth sectoral representative who attains the age of 30 during his term shall be allowed to continue in office until the expiration of his term.
7. Not only the candidate party or organization must represent marginalized and underrepresented sectors, so also must its nominees;
8. While lacking a well – defined political constituency, the nominee must likewise be able to contribute to the formation and enactment of appropriate legislation that will benefit the nation as a whole.
The parameters of the Filipino Party – List System are:
(1) the twenty percent allocation,
(2) the two percent threshold;
(3) the three seat limit; and
(4) proportional representation.
• The Constitution makes the number of district representatives the determinant in arriving at the number of seats allocated for party list lawmakers, a formulation which means that any increase in the number of district representatives, an as may be provided by law, will necessarily result in a corresponding increase in the number of party – list seats . . . ..
• Sections 5 (2), Art. VI of the Constitution is not mandatory, it merely provides a ceiling for party – list seats in Congress . . Obtaining absolute proportional representation is restricted by the three-seat-per-party limit to a maximum of two additional slots . .
• Under the Niemeyer formula, the number of additional seats to which a qualified party would be entitled is determined by multiplying the remaining number of seats to be allocated by the total number of votes obtained by that party and dividing the product by the total number of votes garnered by all the qualified parties.
The Niemeyer formula, while no doubt suitable for Germany, finds no application in the Philippine setting because of our three seat limit and the non – mandatory character of the twenty percent allocation. (Ang Bagong Bayani –OFW Labor Party, et al vs. COMELEC, et al. GR No.147589, June 26, 2001)
V. CANDIDATES AND CERTIFICATES OF CANDIDACY
QUALIFICATIONS OF CANDIDATES
A. National – Arts. VI and VII, PC
1. President and Vice President
2. Senators
3. Congressmen – District and Party–List Representatives
B. Local – Sec.39, Local Government Code
Qualifications prescribed by law are continuing requirements and must be possessed for the duration of the officer’s active tenure. Once any of the required qualifications is lost, his title to the office may be seasonably challenged. (Frivaldo vs. COMELEC, 174 SCRA 245 and Labor vs. COMELEC, 176 SCRA 1)
Residence
In Marcos vs. COMELEC, 248 SCRA 300, the Supreme Court upheld the qualification of IRMarcos despite her own declarations in her certificate of candidacy that she had resided in the district for only seven months because of the following:
1. A minor follows the domicile of his parents; Tacloban became IRMs domicile of origin by operation of law when her father brought the family to Leyte;
2. Domicile of origin is lost only when there is actual removal or change of domicile, a bonafide intention of abandoning the former residence and establishing a new one, and acts which correspond with the purpose; in the absence of clear and positive proof of the concurrence of all these, these domicile of origin should continue;
3. The wife does not automatically gain the husband’s domicile because the term “residence” in Civil Law does not mean the same thing in Political Law, when IRM married Marcos in 1954, she kept her domicile or origin and merely gained a new home, not a domicilium necessarium;
4. Even assuming that she gained a new domicile after her marriage and acquired the right to choose a new one only after her husband died, her acts following her return to the country clearly indicate that she chose Tacloban, her domicile of origin, as her domicile of choice.
• In Aquino vs. COMELEC, 248 SCRA 400, the Supreme Court held that Agapito Aquino failed to prove that he had established not just residence but domicile of choice in Makati. In his certificate of candidacy, he indicated that he was a resident of San Jose Concepcion, Tarlac for 52 years, he was a registered voter of the same district, his birth of certificate places Conception, Tarlac as birthplace. Thus, his domicile of origin was Conception, Tarlac, and his bare assertion of transfer of domicile from tarlac to Makati is hardly supported by the facts of the case.
• When the Constitution speaks of residence the word should be understood, consistent with Webster, to mean actual, physical and personal presence in the district that a candidate seeks to represent
• The original concept of domicile, which arose from American jurisprudence was not intended to govern political rights, it was designed to resolve the conflict of laws between or among state where a decedent may have lived for various reasons, for the purpose of determining which law was applicable as regards his estate . . .
Applying the concept of domicile in determining residence as a qualification for an elective office would negate the objective behind the residence requirement set forth under the law . . . (Domino vs. COMELEC 310 SCRA 546)
The place where the party actually or constructively has his permanent home, where he, no matter where he may found at any given time, eventually intends to return and remain, i.e., his domicile, is that to which the Constitution refers when it speaks of residence for the purposes of election law . . .
The registration of a voter in a place other than his residence of origin is not sufficient to consider him to have abandoned or lost his residence. (Perez vs. COMELEC, 317 SCRA 641)
The rationale of requiring candidates to have a minimum period of residence in the area in which they seek to be elected is to prevent the possibility of a stranger or newcomer unacquainted with the conditions and needs of a community and not identified with the latter from seeking an elective office to serve that community . . .
The classification of an area as a highly urbanized or independent component city, for that matter, does not completely isolate its residents, politics, commerce and other businesses from the entire province, and vice versa, especially when the city is located at the very heart of the province itself . .
The residence requirement is rooted in the desire that officials of districts or localities are acquainted not only with the metes and bounds of their constituencies but, more important, with the constituents themselves, and a very legalistic, academic and technical approach to the resident requirement does not satisfy this simple, practical and common sense national for the residence requirement. (Torayna vs. COMELEC 337 SCRA 574)
Philippine citizenship
The lost citizenship may be reacquired under Sec. 1 of RA 2630, which provides that any person who had lost his Philippine citizenship by rendering service to, or accepting commission in, the Armed Forces of the United States, or after separation from the Armed Forces of the United States, acquired United States citizenship by taking an oath to the Republic of the Philippines and registering the same with Local Civil Registry in the place where he resides or last reside in the Philippines. The said oath of allegiance shall contain a renunciation of any other citizenship. (Bengson III vs. HRET, et al. GR No. 142840, May 7, 2001)
Repatriation results in the recovery of the original nationality. This means that a naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the other hand, if he was originally a natural-born citizen before he lost his Philippine citizenship, he will be restored to his former status as a natural –born Filipino. (Bengson, supra)
Disqualifications
Grounds Under the Omnibus Election Code
A. Any person declared by competent authority insane or Incompetent
B. Any person sentenced by final judgment for any of the Following offenses:
1. Insurrection or rebellion
2. Offense for which he was sentenced to penalty of More than 18 months
3. Crime involving morale turpitude (Sec. 12, BP 881)
C. A permanent resident to or immigrant to foreign country Unless he waives such status (Sec. 68, BP 881)
D. Removal; Insanity or incompetence – declaration of removal by competent authority
E. Conviction; unless granted plenary pardon, amnesty; or Lapse of 5 years after service of sentence (Sec. 12, BP 881)
Grounds under the Local Government Code – Sec. 40
A. Those sentenced by final judgment for an offense involving moral turpitude or an offense punishable by imprisonment for at least one year, within two years after service of sentence.
B. Those removed from office as a result of an administrative case.
An elective local official who was removed from office prior to January 1, 1992 is not disqualified from running for elective local office (Grego vs. COMELEC, 274 SCRA 481)
C. Those convicted by final judgment for violating his oath of allegiance to the Republic.
D. Those with dual citizenship--The phrase “dual citizenship” in RA 7160, Sec. 40 (d) and RA 7854, Sec. 20 must be understood as referring to “dual allegiance.” Consequently, persons with mere dual citizenship do not fall under this disqualification. For candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. (Mercado vs. Manzano, 307 SCRA 630)
E. Fugitives from justice in criminal or non – political cases.
F. The term includes not only those who flee after conviction to avoid punishment, but likewise who, after being changed, flee to avoid prosecution. (Marquez vs. COMELEC, 243 SCRA 538)
G. Permanent residents in foreign country or those who have the right to reside abroad and continue to avail of it. (Caasi vs. CA, 191 SCRA 229)
H. The insane or feeble – minded.
Three consecutive terms limit
The term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply: (Borja vs. COMELEC, GR No. 133495, September 3, 1998)
Conditions for the application of the disqualification: (1) the official concerned has been elected for three consecutive terms in the same local government post and (2) that he has fully served three consecutive terms . . .
A proclamation subsequently declared void is no proclamation at all and while a proclaimed candidate may assume office on the strength of the proclamation of the Board of Canvassers he is only a presumptive winner who assumes office subject to the final outcome of the election protest . .
Voluntary renunciation of a term of office does not cancel the renounced term in the computation of the three term limit; conversely involuntary severance from the office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. (Lonzanida vs. COMELEC, 311 SACRA 602)
1. Under the Revised Administrative Code – Municipal Office
• Ecclesiastics (Pamil vs. Teleron, 56 SCRA 413)
• Persons receiving compensation from provincial or municipal funds
• Contractors for public works of the municipality
2. Under the Lone candidate Law – RA 8295
Any elective official who has resigned from his office by accepting an appointive office to become vacant due to his resignation; and
Any person who, directly or indirectly coerces, bribes, threatens, harasses, intimidates or actually causes, inflicts or produces any violence, injury, punishment, torture, damage, loss or disadvantages to any person or persons aspiring to become a candidate or that of the immediate member of his family, his honor or property that is meant to eliminate all other potential candidates.
Certificates of Candidacy
No person shall be eligible for any elective public unless he files a sworn certificate of candidacy within the period fixed by the Omnibus Election Code.
Deadline
Certificate of candidacy must be filed not later than the day before the date for the beginning of the campaign period. (Sec. 7, RA 7166)
A certificate filed beyond the deadline is not valid. (Gador vs. COMELEC, 95 SCRA 431)
Prohibition against multiple candidacies
A person who files a certificate of candidacy for more than one office should be eligible for any of them. (Sec 73, BP 881)
Before the deadline for filing certificates he may withdraw all expect one, declaring under oath the office for which he desires to be eligible and cancel the certificate of candidacy for other office or offices. (Go vs. COMELEC, GR No. 147741, May 10, 2001)
Forms
Oath
The certificate must be sworn. (Sec. 73, BP 881)
The election of a candidate cannot be annulled because of formal defects in his certificate, such as held of oath (Guzman vs. Board of Canvassers, 48 Phil 211)
Name
A candidate shall use his baptismal name or full name, the name registered with the civil registrar or any other name allowed by law.
He may include one nickname or stage name by which he is generally known.
When two or more candidates for the same office have the same name or surname, each shall state his paternal and maternal surnames, except the incumbent (See. 71, BP 881)
Place and Period of Filling
For President, Vice President and Senators: main office of the COMELEC in Manila, 5 copies, not later than 90 days before date of election.
For Members of the House of Representatives:
Provincial legislative districts – Provincial Election Supervisor of the Province concerned
NCR legislative districts – Regional COMELEC Directors
Legislative districts in cities outside NCR – City Election registrar concerned
For provincial offices – Provincial Election Supervisor of the province concerned.
City and Municipal offices – City or Municipal Election Registrar concerned.
The certificates of candidacy of Members of the House of Representatives, Provincial, city or municipal officials shall be filed in 5 copies not later than 45 days before the election.
The certificate of candidacy shall be filed by the candidate personally or his duly authorized representative. No certificate of candidacy shall be filed or accepted by mail, telegram or facsimile.
The evident purpose of the law in requiring the filing of certificate of candidacy and in fixing the time limit therefore are; (1) to enable the voters to know, at least sixty days before the regular election, the candidates among whom they are to make the choice, and (2) to avoid confusion and inconvenience in the tabulation of the votes to the duly registered candidates, there might be as many persons voted for as there are voters, and votes might be cast even for unknown or fictitious persons, as mark to identify the votes in favor of a candidate for another office in the same election. (Miranda vs. Abaya, 311 SCRA 617)
Duty of COMELEC
Subject to its authority over nuisance candidates and its power to deny due course or cancel a certificate of candidacy, the rule is that the COMELEC shall have only the ministerial duty to receive and acknowledge receipt of the certificates of candidacy. (Sec. 78, BP 881)
Effect Filing
An appointive public official is considered resigned upon filing of his certificate. (Sec. 66, BP 881;Sanciangco vs. Rono, 137, SCRA 671).This includes an employs of a GOCC organized under the Corporation Code (Without original charter), since the law makes no distinction. (PNOC – EDC vs. NLRC, 222 SCRA 831)
Any elective official, whether national or local who has filed a certificate of candidacy for the same or any other office shall not be considered resigned from office. (sec. 26, COMELEC Resolution No. 3636, Rules and Regulations Implementing RA 9006)
Withdrawal of Certificate of Candidacy
Form – written declaration under oath. There was no withdrawal of candidacy for the position of mayor where the candidate, before the deadline for filing certificates of candidacy, personally appeared in the COMELEC office, asked for his certificate of candidacy and intercalated the word “vice” before the word mayor and the following day wrote the election registrar saying that his name be included in the list of official candidates for mayor. (Vivero vs. COMELEC, L – 81059, Jan 12, 1989)
Since his certificate of candidacy for the office of board member was filed by his party, and the said party had withdrawn the nomination which withdrawal was confirmed by the candidate under oath, there was substantial compliance with Sec. 73. His filing under oath within the statutory period of his individual certificate for candidacy for the separate office of mayor was, in effect, a rejection of the party nomination on his behalf for the office of board member. (Ramirez vs. COMELEC, L-81150, Jan 12, 1992)
Substitution of Candidacy – Sec. 77 BP 881; Sec. 12, RA 9006
If after the last day for filing certificates, a candidate dies, withdraws or is disqualified, he may be substituted by a person belonging to his party not later than the mid – day of election. Said certificate may be filled with any board of election inspectors in the political subdivision where he is an electorate of the country, with the COMELEC. (Domingo vs. City Board of Canvassers, GR No. 105365, June 2, 1992)
Even if the withdrawal was not under oath, the certificate of the substitute cannot be annulled after the election. Such technicality of the original candidate’s withdrawal of his certificate of candidacy cannot be used to override the people’s will in favor to the substitute candidate. The legal requirement that the withdrawal be under oath will be held to be merely directory and the candidate’s failure to observe the requirement is considered a harmless error. Hence the bona fide certificate of the substitute candidate cannot be assailed. The votes in his favor should be counted. (Villanueva vs. COMELEC, 140 SCRA 352)
In case of valid substitutions after the official ballot have been printed, the votes cast for the substituted candidates shall be considered as many votes but shall not invalidate the whole ballot. For this purpose, the official ballots shall provide spaces where the voters may write the name of substitute candidates if they are voting for the latter. (See. 12, RA 9006)
There is nothing in the Constitution or statute which requires as condition precedent that a substitute candidate must have been a member of the party concerned for a certain period of time before he can be nominated as such. (Sinaca vs. Mula, 315 SCRA 266)
A valid certificate of candidacy is likewise an indispensable requisite in the case of a substitution of a disqualified candidate under the provisions of Sec. 77 of the Election Code . . . The concept of a substitute presupposes the existence of the person to be substituted, for how can a person take the place of somebody who does not exist or who never was...
A disqualified candidate may only be substituted if he had a valid certificate of candidacy in the first place because, if the disqualified candidate did not have a valid and seasonably filed certificate of candidacy, he is and was not a candidate at all. If a person was not a candidate, he cannot be substituted under Sec. 77 of the Code . . . .
While Sec. 78 of the Election Code enumerated the occasion where a candidate may validly substitute there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy (Miranda vs. Abaya, 311 SCRA 617)
In case of valid substitutions after the official ballots have been printed, the votes cast for the substituted candidates shall be considered as stray votes but shall not invalidate the whole ballot. Sec. 12, RA 9006. amending Sec. 12 of RA 8436)
DISQUALIFICATION OF CANDIDATES
1. Grounds
Violation of Omnibus Election Code – Sec. 68
Giving money or other material consideration to influence voters or public officials performing electoral functions
Committing acts of terrorism to enhance his candidacy
Spending in his election campaign in excess of the amount allowed by the Code
Soliciting, receiving or making any prohibited contribution
Violations of Secs. 80, 83, 85, 86 and 261, paragraphs d, e, k, v and cc, sub-paragraph 6.
Nuisance candidate – Sec. 69
A petition to disqualify a candidate for councilor for failure to indicate in his certificate of candidacy the precinct number and the barangay as a registered voter cannot be considered a petition to disqualify him for being a nuisance candidate, since his certificate was not filed to make mockery of the election or to confuse the voters. (Jurilla vs. COMELEC, 232 SCRA 758)
Falsity of material representation in certificate of candidacy. – Sec. 78
The COMELEC has jurisdiction over a petition to disqualify a candidate for congressman for ineligibility before he has been proclaimed and has assumed office (Marcos vs. COMELEC, 248 SCRA 300; Aquino vs. COMELEC, 248 SCRA 400)
2. Procedure for disqualification of candidates
The petition shall be filed by any registered candidate for the same Office within 5 days from the last day of filing of certificates of Candidacy. (Secs. 5a and 7, RA 6646)
Under the election laws and the COMELEC Rules of Procedure, any voter may file a petition to disqualify a candidate on grounds provided by law. (Torayno vs.COMELEC, 337 SCRA 574)
The fact that no docket fee was initially paid is not fatal. The Procedural defect as cured by the subsequent payment of the docket fee. (Sunga vs. COMELEC, 228 SCRA 76)
A petition filed after the election is filed out of time. (Loong vs.COMELEC, 216 SCRA 769)
Since the filing by facsimile transmission is not sanctioned and a facsimile copy is not an original pleading, a petition for disqualification should be deemed filed upon the filing of the original petition. (Garvida vs. Sales, 271 SCRA 764)
Where a qualified candidate was replaced on the day before the election, a petition to disqualify the replacement filed on election day should be entertained, as it was impossible to file the petition earlier. (Abella vs. Larrazabal, 180 SCRA 509)
The COMELEC may motu propio refuse to give due course or cancel a certificate of candidacy. (Sec. 69, BP 881)
The proceeding shall be summary. (Nolasco vs. COMELEC, 275 SCRA
762)
The COMELEC can decide a disqualification case directly without referring it to its legal officers for investigation. (Nolasco, supra)
The decision shall be final and executory after 5 days from receipt unless stayed by the Supreme Court [Secs. 5(e) and 7, RA 6646]
EFFECTS OF DISQUALIFICATION CASE
After final judgment -Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted.
Before final judgment – If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may, during the tendency thereof, order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong. (Sec. 6, RA 6646)
The purpose of a disqualification proceeding is to prevent the candidate from running or, if elected, from serving, or to prosecute him for violation of election laws. The fact that a candidate has been proclaimed and had assumed the position to which he was elected does not divest the COMELEC of authority and jurisdiction to continue the hearing and eventually decide the disqualification. The COMELEC should not dismiss the case simply because the respondent has been proclaimed. (Sunga vs. COMELEC, 288 SCRA 76 and Lonzanida vs. COMELEC, 311 SCRA 617)
Sec. 6 of RA 6616 authorizes the continuation of proceedings for disqualification even after the elections if the respondent has not been proclaimed. (Perez vs. COMELEC, 317 SCRA 641)
A disqualification case may have two aspects, the administrative, which required only a preponderance of evidence to prove disqualification, and the criminal, which necessitates proof beyond reasonable doubt to convict.
There is no provision in RA 6646 that treats of a situation where the complaint for disqualification is filed after the election. . . .
Second paragraph of paragraph 2 of Res. No. 2050 provides that where a complaint is filed after the election but before proclamation, as in this case, the complaint must be dismissed as a disqualification case but shall be referred to the Law Department for preliminary investigation.
Why there is a difference between a petition for disqualifications before and after the election proceeds from the fact that before the electorate and those who vote for the candidate assume the risk that should said candidate be disqualified after the election, their votes would be declared stray or invalid votes and that would not be true in the case of one filed after the electorate has already voted . . . (Bagatsing vs. COMELEC, 320 SCRA 817)
The COMELEC can legally suspend the proclamation of the winning candidate although he received the winning number of votes.(Labo vs. COMELEC, 211 SCRA 297).
The use of the word “may”, indicates that the suspension of the proclamation is merely directory and permissive in nature and operates to confer discretion. What is made mandatory is the continuation of the trial and hearing of the action, inquiry or protest. Since the suspension of the proclamation is merely permissive, the proclamation of a candidate is valid, if the COMELEC did not suspend his proclamation. (Grego vs. COMELEC, 274 SCRA 481)
Under the same provision, intervention may be allowed in proceedings for disqualification even after election if there has yet no final judgment rendered. (Mercado vs. Mazano, 307 SCRA 630)
Where the votes cast for a nuisance candidate whose disqualification had not yet become final on election day were tallied separately, they should be counted in favor of the petitioner. (Bautista vs. COMELEC, 298, SCRA 480)
THE LONE CANDIDATE LAW
The Lone Candidate Law is RA 8295, enacted June 6, 1997. Section 2 thereof provides the upon the expiration of the deadline for the filing of certificate of candidacy in a special election called to fill a vacancy in an elective position other than for President and Vice-President, when there is only one (1) qualified candidate for such position, the lone candidate shall be proclaimed elected to the position by proper proclaiming body of the COMELEC that he is the only candidate for the office and is thereby deemed elected.
Section 3 thereof also provides that the lone candidate so proclaimed shall assume office not earlier than the scheduled election day, in the absence of any lawful ground to deny due course or cancel the certificate of candidacy in order to prevent such proclamation.
VI. CAMPAIGN; ELECTION PROPAGANDA; CONTRIBUTIONS AND EXPENDITURES
Election campaign or partisan political activity refers to an act designed to promote the election or defeat of a particular candidate or candidates for public office. (Sec. 79, BP 881)
a. If done for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party, etc, it shall not be considered as election campaign or partisan political activity.
b. It shall be unlawful for any person or any party to engage in election campaign or partisan political activity except during the campaign period.
c. Members of the Civil Service to engage, directly or indirectly, in any electioneering or partisan political campaign.
A. Nomination of candidates
1. President, Vice-President and Senators – not earlier than 165 before election date
2. Congressmen, provincial, city or municipal officials – not earlier than 75 days before election day
B. Campaign period
1. President, Vice-President and Senators – 90 days before election day
2. Congressmen, provincial, city and municipal officials – 45 days before election day.
C. Lawful propaganda
1. Forms
2. Pamphlets, leaflets, cards, decals, stickers and written or printed materials not more than 8 ½ inches by 14 inches
3. Handwritten/printed letters
4. Cloth, paper or cardboard, posters measuring, not more than 2 feet by 3 feet 3 by 8 ft. allowed in announcing at the site on the occasion of a public meeting or rally, may be displayed 5 days before the date of rally but shall be removed within 24 hours after said rally.
5. Paid print advertisements: ¼ page in broadsheets and ½ pages in tabloids thrice a week per newspaper, magazine or other publication during the campaign period. (Sec. 4, RA 9006)
6. Broadcast Media(i.e., TV and radio) National Positions: 120 minutes for TV, 180 minutes for radio / Local Positions: 60 minutes for TV, 90 minutes for radio
7. Other forms of election propaganda not prohibited by the Omnibus Election Code and RA 9006, and authorized by the COMELEC.
Requirement
1. Any published or printed political matter or broadcast of election propaganda by television or radio for or against a candidate or group of candidates to any public office shall bear and be reasonably legible or audible words “political advertisement paid for,” followed by the true and correct name and address of the candidate or party for whose benefit the election propaganda was printed or aired.
2. If the broadcast is given free or charge by the radio or television station, it shall be identified by the word “airtime for this broadcast was provided free of charge by” followed by the true and correct name and address of the broadcast entity.
3. Print, broadcast or outdoor advertisements donated to the candidate or political party shall be printed, published, broadcast or exhibited without the written acceptance by the said candidate or political party. Such written acceptance shall be attached to the advertising contract and shall be submitted to the COMELEC. (Sec. 4, RA 9006)
D. Prohibited Campaign
1. Public exhibition of a movie, cinematograph or documentary portraying the life or biography of a candidate during campaign period.\
2. Public exhibition of a movie, cinematograph or documentary portrayed by an actor or media personality who is himself a candidate;
3. Use of airtime for campaign of a media practitioner who is an official of a party or a member of the campaign staff of a candidate or political party.
Scope
1. Prohibiting the posting of decals and stickers except in the common posting area authorized by the COMELEC is not valid (Adiong vs. COMELEC, 244 SCRA 272)
2. Mass media may report news relating to candidates, and mass media practitioners may give their opinion regarding candidates. (National Press Club vs. COMELEC, 207 SCRA 1)
E. Rallies
1. An application for permit for a rally shall not be denied except on the
ground that a prior written application for the same purpose has been approved. A denial is appealable to the provincial election supervisor or COMELEC. (Sec. 87, BP 881)
2. It is unlawful to give or accept transportation, food, drinks or things of
value within 5 hours before and after a public rally, before election day and on election day. (Sec. 89 BP 881)
F. Prohibited donations
It is prohibited for any candidate, his spouse, relative within second degree of consanguinity or affinity, or representative to make any contribution for any structure for public use or for use of any religious or civic organization except the normal religious dues and payment for scholarships established and school contributions habitually made before the campaign period. (Sec. 104, BP 881)
G. Prohibited contributions
No political contribution shall be made by the following:
1. Public or private financial institutions
2. Public utilities and those who exploit natural resources
Thus, where an operator of a public utility disguised a contribution to a candidate for governor as loan, the promissory note is void: (halili vs. Court of Appeals, 83 SCRA 633)
3. Persons who hold contracts or sub-contracts to supply the government
with goods and services.
4. Persons granted franchises, incentives, exemptions or similar privileges by
the government
5. Persons granted loans in excess of P25, 000 by the government or any of
its subdivisions or instrumentalities
6. Schools which received grants of public funds of at least P100,000
7. Employees in the Civil Service or members of the Armed Forces.
8. Foreigners (Sec. 95 , Bp 881)
9. Corporations (sec. 36 (9), Corp. Code)
H. Equal Access to Media Time and Space
All registered parties and bonafide candidates shall have equal access to media time and space . The following guidelines may be amplified on by the COMELEC.
1. No franchise or permit to operate a radio or television shall be granted or
issued, suspended or cancelled during the election period.
2. Any mass media columnist, commentator, announcer, reporter, on-air
correspondent or personality who is a candidate for any elective public office or is a campaign volunteer for or employed or retained in any capacity by any candidate or political party shall be deemed resigned, if so required by their employers, or shall take a leave of absence from his work as such during the campaign. And that any media practitioner who is an official candidate of a political party or member of the campaign staff of a candidate or political party shall not use his media time and space to favor any candidate or political party.
I. Limitation on expenses – Sec. 13, RA 7166
1. Candidates
a. President and vice president – P10 per voter
b. Other candidates – P3 per voter in his constituency
c Candidate without political party – P5 per voter
d. Party/organization and coalition participating in the party – list system – P5 per voter
2. Political party and coalition – P5 per voter in the constituency where it has candidates. (sec. 13, RA 7166)
J. Statement of contributions and expenditures
1. Filing
a. every candidate and treasurer of political party shall file within 30 days after election day a statement of contributions and expenditures.
b. No persons elected shall assume office until he and his political party has filed the required statements
2. Penalties
a. First Offense – administrative fine from P 1,000 to P30, 000
b. Subsequent offense
i. Administrative fine from P2,000 to P60, 000
ii. Perpetual disqualification to hold public office (Sec. 14,
RA 7166)
3. Effect of withdrawal
A candidate who withdraws his certificate of candidacy must still file a statement of contributions and expenditures, for the law makes no distinction. (Pilar vs. COMELEC, 245 SCRA 759)
VII. ELECTION; BOARD OF ELECTION INSPECTORS (BEI); WATCHERS
KINDS OF ELECTION
1. General election is one provided for by law for the election to offices throughout the State, or certain subdivisions thereof, after the expiration of the full term of former officers.
2. Special Election is one provided for by law to fill vacancy in office before the expiration of the full term for which the incumbent was elected or one fixed by the COMELEC due to postponement or suspension of the election or the failure to elect.
3. Recall election is an election by means of which voters decide whether they should retain their local official or elect his replacement. (Claudio vs. COMELEC, 331 SCRA 388)
ELECTION PERIOD
Unless otherwise fixed by the COMELEC in special cases, the election period shall commence 90 days before the day of the day of the election and shall end 30 days thereafter.[Sec. 9, Art. IX – C, PC]
DATE OF ELECTION
The regular election of the President, Vice-President, Senators and Members of the House of Representatives and local officials, except barangay officials, shall be on the second Monday of May once every three years. In accordance with the constitutional policy to synchronize elections, the regular election for national and local officials is now held simultaneously. (RA 7166) Under 6679, regular elections for barangay officials shall be held once every five years.
ELECTION OF SANGGUNIANG MEMBERS
1. For provinces with two or more legislative district the elective members of Sangguniang Panlalawigan (Spn) shall be elected by legislative districts.
2. For provinces with only one legislative district – the COMELEC shall divide them into districts for purposes of electing the members of the SPn;
3. For cities in Metro Manila Area, Cebu City, Davao City or any other city with two or more legislative district – governed by Secs. 2 and 3 of RA 6686.
4. For municipalities in Metro Manila – the COMELEC shall divide them into two districts by baranggay for purposes of electing members of the SB.
POSEPONEMENT OF ELECTION
When for any serious cause such as violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, and other analogous cases of such nature that the holding of a free, orderly and honest election should become impossible in any political subdivision, the COMELEC, motu propio or upon a verified petition by any interested party, and after due notice and hearing, whereby all interested parties are afforded equal opportunity to be heard, shall postpone the election therein. (Sec. 5, BP 881)
An election officer alone, or even with the agreement of the candidates, cannot validly postpone or suspend the election. (Basher vs. COMELEC, 330 SCRA 736). . . It is essential to the validity of the election that the voters have notice in some form, either actual or constructive, of the time, place and purpose thereof (Basher vs. COMELEC, supra)
A petition to postpone elections should be addressed to the COMELEC, subject to the remedy of review provided for in Art IX – A Section 7.
In fixing the date of special elections the COMELEC should see to it that:
1. It should not be later than thirty (30) days after the secession of the cause of the postponement of suspension of the election or a failure to elect; and
2. It should be reasonably close to the date of the election not held, suspended or which resulted in the failure to elect.(Pangandaman vs. COMELEC, 319 SCRA 283)
A special election is not valid if notice of its date and of the transfer of the precincts was given less than a day before, since the voters were deprived of the opportunity to vote. (hassan vs. COMELEC, 264 SCRA 125)
FAILURE OF ELECTION
1. Sec.6 the OEC contemplates three instances when the COMELEC may declare a failure of election and call for the holding of a special election: (1) when thee election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud and other analogous cases, (2) when the election in any polling place has been suspended before the hour fixed by law for the closure of the voting; and (3) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect. (Soliva et al vs. COMELEC, GR No. 141723, April 20,2001)
2. The power to throw out or annul an election should be exercised with the utmost care and only under circumstances which demonstrate beyond doubt either that the disregard of the law had been so fundamental or so pertinent and continuous that it is impossible to distinguish what votes are lawful and what are unlawful, or to arrive at any certain result whatsoever, or that the great body of voters have been prevented by viiolence, intimidation and threats from exercising their franchise… There is failure of elections only when the will of the electorate has been muted and cannot be ascertained. (Benito vs. COMELEC, GR No. 134913,January 19,2001)
3. A special election should be held if the ballot box in the precinct was burned.(Hassan vs. COMELLEC,264 SCRA 125)
4. The destruction of the copies of the election returns intended for the board of canvassers is not a ground for the declaration of failure of election as other copies of the returns can be used (Sardea vs. COMELEC,225 SCRA 374)
5. The fact that less than 25% of the registered voters voted does not constitute failure of election, since voting took place. (Mitmug vs. COMELEC,230 SCRA 54)
6. Lack of notice of the date and time of the canvass, fraud, violence, terrorism, and analogous causes, such as disenfranchisement of voters, presence of flying voters, and lack of qualifications of the members of the Board of Inspectors are not grounds for declaration of failure of election but for an election protest. (Borja vs. COMELEC,260 SCRA 604)
7. The fact that the names of some registered voters were omitted from the list of voters, strangers voted for some of the registered voters, a candidate was credited with less votes than he received, the control data of some election returns were filled up, the ballot boxes were brought to the municipal hall without padlock and seals, and that there was a delay in the delivery of election returns are not grounds for the declaration of failure of election. (Canicosa vs. COMELEC, 282 SCRA 512)
8. An election cannot be annulled because of the illegal transfer of a precinct less than 45 days before the election if the votes of those who were not able to vote will not alter the result. (Balindong vs. COMELEC, 260 SCRA 494)
9. There is no reglementary period for filing a petition for annulment of an election if there has as yet been no proclamation. (Loong vs. COMELEC, 257 SCRA 1)
10. The COMELEC may decide a petition to declare a failure of election en banc at the first instance, since it is not a pre-proclamation case or an election protest. (Borja vs. COMELEC, 260 SCRA 604)
In petitions to declare a failure of election on the ground of fraud, theCOMELEC may conduct a technical examination of election documents and compare and analyze the signatures and fingerprints of the voters. (Loong vss. COMELEC,257 SCRA 1)
SPECIAL ELECTION TO FILL UP VACANCY
1. In case of permanent vacancy in Congress at least one year before the expiration of the term, the COMELEC shall hold a special election not earlier than 90 days after the occurrence of the vacancy.
2. A vacancy in the Senate will be filled up at the next regular election.(Section 4,RA 7166)
BOARD OF ELECTION INSPECTORS (BEI)
The Board of Election Inspectors shall be composed of a chairman and two members, all of whom are public school teachers.
If there are not enough public school teachers, teachers in private schools, employees in the civil service, or other citizens of known probity and competence may be appointed. (Section 13, RA 6646)
WATCHERS
Number
1. Official watchers
Every registered party or coalition of parties and every candidate is entitled to one watcher per precinct and canvassing counter.
Candidates for the local legislature belonging to the same party are entitled collectively to one watcher.
Six principal watchers from 6 accredited major political parties shall be recognized. (Section 26, 7166)
2. Other watchers
• The accredited citizen’s arm is entitled to a watcher in every precinct.
• Other civic organizations may be authorized to appoint one watcher in every precinct. (Section 180, BP 881)
Important rights of watchers
1. All watchers
a. To stay inside the precinct
b. To inform themselves of the proceedings
c. To file a protest against any irregularity
d. To obtain a certificate of the number of votes cast for each candidate (Section 179, BP881)
2. Citizen’s Arm
To be given a copy of the election return to be used for the conduct of an unofficial count. (Section 1, RA 8045)
VIII. CASTING OF VOTES
1. The chairman of the Board of Election Inspectors should sign each ballot at the back. The omission of such signature does not affect the validity of the ballot.(Libanan vs HRET,283 SCRA 520) Under the rules prevailing during the 1997 Barangay Elections, the failure to authenticate the ballots shall no longer be cause for the invalidation thereof. (Malabaguio vs. COMELEC,346 SCRA 699)
2. A voter who was challenged on the ground that he has been paid for the vote or made a bet on the result of the election will be allowed to vote if he takes an oath that he did not commit the act alleged in the challenge. (Section 200,BP881)
3. An illiterate or physically disabled voter may be assisted by a relative by affinity or consanguinity within the fourth degree or any person of his confidence who belongs to the same household or any member of the Board of Election Inspectors. (Section 196, BP881)
4. It is unlawful to use carbon paper, paraffin paper or other means for making a copy of the contents of the ballot or to use any means to identify the ballot.(Sec. 195,BP881). A ballot prepared under such circumstances should not be counted. (Gutierrez vs. Aquino, Feb,26,1959)
ABSENTEE VOTING
1. Members of the Board of Election Inspectors and their substitutes may vote in the precinct where they are assigned. (Section 169, BP 881)
2. Absentee voting for President, V-president and Senators are allowed for members of the AFP, PNP, and other government employees assigned in connection with the performance of election duties to places where they are not registered. (Section 12, RA 7166)
RA NO. 9189 “AN ACT PROVIDING FOR A SYSTEM OF OVERSEAS ABSENTEE VOTING BY QUALIFIED CITIZENS OF THE PHILIPPINES ABROAD”
Sec. 5. Disqualification. – The following shall be disqualified from voting under this Act:
a) Those who have lost their Filipino citizenship in accordance with Philippine laws;
b) Those who have expressly renounced their Philippine citizenship and who have pledge allegiance to a foreign country;
c) Those who have committed and are convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not less than one (1) year, including those who have committed and been found guilty of Disloyalty as define under Article 137 of the Revised Penal Code, such disability not having been removed by plenary pardon or amnesty: Provided, however, That any person disqualified to vote under this subsection shall automatically acquire the right to vote upon expiration of five(5) years after service of sentence; Provided further, That the Commission may take cognizance of final judgments issued by foreign courts or tribunals only on the basis or reciprocity and subject to the formalities and processes prescribed by the Rules of court on execution of judgments;
d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she execute, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/ she shall resume actual physical permanent residence in the Philippine not later than three(3) years from approval of his/her registration under this Act. Such affidavit shall also state that she/ he has no applied for citizenship in another country. Failure to return shall be cause for the removal of the name of immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia.
e) Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority in the Philippines or abroad, as verified by the Philippine embassies, consulates or foreign service establishments concerned, unless such competent authority subsequently certifies that such person is no longer insane or incompetent.
SEC. 6 Personal Overseas Absentee Registration. – Registration as an overseas absentee voter shall be done in person.
Qualified citizens of the Philippines abroad who failed to register under Republic Act No. 8189, otherwise known as “The Voters Registration Act of 1996”, may personally apply for registration with the Election Registration Board of the city or municipality where they were domiciled immediately prior to their departure from the Philippines, or with the representative of the Commission of the Philippine embassies, consulates and other foreign service establishments that have jurisdiction over the locality where they temporarily reside. Subject to guidelines herein provided, the Commission is hereby authorized to prescribe procedures for overseas absentee registration pursuant to the provisions of Republic Act No. 8189, whenever applicable, taking into strict consideration the time zones and the various periods and processes herein provided for the proper implementation of this Act. The embassies, consulates and other foreign service establishments shall transmit within five (5) days from receipt the accomplished registration forms to the Commission after which the Commission shall coordinate with the Election Officer of the city or municipality of the applicant’s stated residence for verification, hearing and annotation in the permanent list of voters.
All applications for the May 2004 elections shall be filed with the Commission not later than two hundred eighty (280) calendar days before the day of elections. For succeeding elections, the Commission shall provide for the period within which applications to register must be filed.
In the case of seafarers, the Commission shall provide a special mechanism for the time and manner of personal registration taking into consideration the nature of their work.
6.1 Upon receipt of the application for registration, the Election Officer shall immediately set the application for hearing, the notice of which shall be posted in a conspicuous place in the premises of the city or municipal building of the applicant’s stated residence for at least one (1) week before the date of the hearing. The Election Officer shall immediately furnish a copy of the application to the designated representatives of political parties and other accredited groups.
6.2 If no verified objection to the application is filed, the Election Officer shall immediately forward the application to the Election Registration Board, which shall decide on the application within one (1) week from the date of hearing without waiting for the quarterly meeting of the Board. The applicant shall be notified of the approval or disapproval of his/her application by registered mail.
6.3 In the event that an objection to the application is filed prior to or on the date of hearing, the Election Officer shall notify the applicant of said objection by registered mail, and closing therein copies of affidavits or documents submitted in support of the objection filed with the said Election Officer, if any. The applicant shall have the right to file his counter-affidavit by registered mail, clearly stating therein facts and defenses sworn before any officer in the host country authorized to administer oaths.
6.4 The application shall be approved or disapproved based on the merits of the objection, counter-affidavit and documents submitted by the party objecting and those of the applicant.
6.5 A Certificate of Registration as an overseas absentee voter shall be issued by the Commission to all applicants whose applications have been approved, including those certified as registered voters. The Commission shall include the approved applications in the National Registry of Absentee Voters.
6.6 If the application has been approved, any interested party may file a petition for exclusion not later than two hundred ten (210) days before the day of elections with the proper municipal or metropolitan trial court. The petition shall be decided within fifteen (15) days after its filing on the basis of the documents submitted in connection therewith. Should the court fail to render a decision within the prescribed period, the ruling of the Election Registration Board shall be considered affirmed.
6.7 If the application has been approved, the applicant or his authorized representative shall, within a period of five (5) days from receipt of the notice of this approval, have the right to file a petition for inclusion with the proper municipal or metropolitan trial court. The petition shall be decided within five (5) days after its filing on the basis of documents submitted in connection therewith.
Qualified citizens of the Philippines abroad, who have previously registered as voters pursuant to Republic Act No. 8189 shall apply for certification as absentee voters and for inclusion in the National Registry of Overseas Absentee Voters, with a corresponding annotation in the Certified Voter’s List.
Sec. 7. System of Continuing Registration. – The Commission shall ensure that the benefits of the system of continuing registration are extended to qualified overseas absentee voters. Towards this end, the Commission shall optimize the use of existing facilities, personnel and mechanisms of the various government agencies for purposes of data gathering, data validation, information dissemination and facilitation of the registration process.
Pre-departure programs, services and mechanisms offered and administered by the Department of Foreign Affairs, Department of Labor and Employment, Philippine Overseas Employment Administration, Overseas Workers’ Welfare Administration, Commission on Filipinos Overseas and other appropriate agencies of the government shall be utilized for purposes of supporting the overseas absentee registration and voting processes, subject to limitations imposed by law.
Sec.8 Requirements for Registration. – Every Filipino registrant shall be required to furnish the following documents:
a) A valid Philippine passport. In the absence of a valid passport, a certification of the Department of Foreign Affairs that it has reviewed the appropriate documents submitted by the applicant and found them sufficient to warrant the issuance of a passport, or that the applicant is a holder of a valid passport but is unable to produce the same for a valid reason;
b) accomplished registration from prescribed by the commission containing the mandatory information:
• Last know residence of the applicant in the Philippines before leaving for abroad;
• Address of applicant abroad, or forwarding address in the case of seafarers;
• Where voting by mail is allowed, the applicant’s mailing address outside the Philippines where the ballot for absentee voters will be sent, in proper cases; and
• Name and address of applicant’s authorized representative in the Philippines for purposes of Section 6.7 and Section 12 hereof.
In the case of immigrants and permanent residents not otherwise disqualified to vote under this Act, an affidavit declaring the intention to resume actual physical permanent residence in the Philippines not later than three (3) years after approval of his/her registration as an overseas absentee voter under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country.
The Commission may also require additional data to facilitate registration and recording. NO information other than those necessary to establish the identity and qualification of the applicant shall be required.
Sec. 11 Procedure for Application to Vote in Absentia.-
11.1 Every qualified citizen to the Philippines abroad whose application for registration has been approved, including those previously registered under Republic Act No. 8189, shall, in every national election, file with the officer of the embassy, consulate or other foreign service establishment authorized by the Commission, a sworn written application to vote in a form prescribed by the Commission. The authorized officer of such embassy, consulate or other foreign service establishment shall transmit to the Commission the said application to vote within five (5) days from receipt thereof. The application form shall be accomplished in triplicate and submitted together with the photocopy of his/her overseas absentee voter certificate of registration.
11.2 Every application to vote in absentia may be done personally at, or by mail to the embassy, consulate or foreign service establishment, which has jurisdiction over the country where he/she has indicated his/her address for purposes of th elections.
11.3 Consular and diplomatic services rendered in connection with the overseas absentee voting processes shall be made available at no cost to the overseas absentee voter.
Sec. 12 . Verification and Approval of Application to Vote.-
All applications shall be acted upon by the Commission upon receipt thereof, but in no case later than one hundred fifty (150) days before the day of elections. In the event of disapproval of the application, the voter or his authorized representative may file a Motion for Reconsideration with the Commission personally, or by registered mail, within ten (10) days from receipt of the notice of disapproval. The Commission shall act within five (5) days from receipt of such Motion for Reconsideration and shall immediately notify the voter of its decision. The decision of the Commission shall be final and executory.
Sec. 16. casting and Submission of Ballot.-
16.1 Upon receipt by7 the designated officer of the embassy, consulate and other foreign service establishments of the ballots for overseas absentee voters, voting instruction, election forms and other paraphernalia, he/she shall make them available on the premises to the qualified overseas absentee voters in their respective jurisdiction during the thirty (30 ) days before the day of elections when overseas absentee voters may cast their vote. Immediately upon receiving it, the overseas voter must fill-out his/her ballot personally, in secret, without leaving the premises of the embassies, consulates and other Foreign Service establishments concerned.
16.2 The overseas absentee voter shall personally accomplish his/her ballot at the embassy, consulate or other foreign service establishment that has jurisdiction over the country where he/she temporarily resides or at any polling place designated and accredited by the Commission.
16.3 The overseas absentee voter shall cast his ballot, upon presentation of the absentee voter identification card issued by the Commission, within thirty (30) days before the day of elections. In the case of seafarers, they shall cast their ballots anytime within sixty (60) days before the day of elections. In the case of seafarers, they shall cast their ballots anytime within sixty (60) days before the day of elections as prescribed in the Implementing Rules and Guidelines.
16.4 All accomplished ballots received shall be placed unopened inside sealed containers and kept in a secure place designated by the Commission.
16.5 The embassies, consulates and other foreign service establishments concerned shall keep a complete record of the ballots for overseas absentee voters, specifically indicating the number of ballots they actually received, and in cases where voting by mail is allowed under Section 17 hereof, the names and addresses of the voters to whom these ballots were sent, including proof of receipt thereof. In addition, the embassies, consulates and other foreign service establishments shall submit a formal report to the Commission and the Joint Congressional Oversight Committee created under this Act within thirty (30) days from the day of elections. Such report shall contain data on the number of ballots cast and received by the officers the number of invalid and unclaimed ballots and other pertinent data.
16.6 The overseas absentee shall be instructed that his/her ballot shall not be counted if it is not inside the special envelope furnished him/her when it is cast.
16.7 Ballots not claimed by the overseas absentee voters at the embassies, consulates and other foreign service establishments, in case of personal voting, and ballots returned to the embassies, consulates and other foreign service establishments concerned, in the case of voting by mail. Shall be cancelled and shipped to the Commission by the least costly method within six (6) months from the day of elections.
16.8 Only ballots cast, and mailed ballots received by the Philippine embassies, consulates and other foreign service establishments concerned in accordance with Section 17 hereof before the close of voting open the day of elections shall be counted in accordance with Section 18 hereof. All envelopes containing the ballots received by the embassies, consulates and other foreign service establishments after the prescribed period shall not b opened, and shall be cancelled and shipped to the Commission by the least costly method within six (6) months from the day of elections.
16.9 A special Ballot Reception and Custody Group composed of three (3) members shall be constituted by the Commission from among the staff of the embassies, consulates and other foreign service establishments concerned including their attached agencies, and citizens of the Philippines abroad, who will be deputized to receive ballots and take custody of the same preparatory to their transmittal to the Special Boards of Election Inspectors.
16.10 During this phase of the election process, the authorized representatives of political parties, candidates, and accredited citizens’ arms of the Commission shall be notified in writing thereof and shall have the right to witness the proceedings.
16.11 The Commission shall study the use of electronic mail, internet, or other secured networks in the casting of votes, and submit a report thereon to the Joint Congressional Oversight Committee.
Sec. 17. Voting by Mail. –
17.1 For the May 2004 elections, the Commission shall authorize by voting mail in not more than three (3) countries, subject to the approval of the Congressional Oversight Committee. Voting by mail may be allowed in countries that satisfy the following conditions:
a.) Where the mailing system is fairly well-developed and secure to prevent occasion for fraud;
b.) Where there exists a technically established identification system that would preclude multiple or proxy voting; and
c.) Where the system of reception and custody of mailed ballots in the embassies, consulates and other foreign service establishments concerned are adequate and well-secured.
Thereafter, voting by mail in any country shall be allowed only upon review and approval of the Joint Congressional Oversight Committee.
17..2 The overseas absentee voter shall send his/her accomplished ballot to the corresponding embassy, consular or foreign service establishment that has jurisdiction over the country where he/she temporarily resides. He/she shall be entitled to cast his/her ballot at any time upon his/her receipt thereof, provided that the same is received before the close of voting on the day of elections. The overseas absentee voter shall be instructed that his/her ballots shall not be counted if not transmitted in the special envelope furnished him/her.
17.3 Only mailed ballots received by the Philippine embassy, consulate and other foreign service establishments before the close of voting on the day of elections shall be counted in accordance with Section 18 hereof. All envelopes containing the ballots received by the embassies, consulates and other foreign service establishments after the prescribed period shall not be opened, and shall be cancelled and disposed of appropriately, with a corresponding report thereon submitted to the Commission not later than thirty (30) days from the day of elections.
Sec. 23. Security Measures to Safeguard the Secrecy and Sanctity of Ballots.- At all stages of the electoral process, the Commission shall ensure that the secrecy and integrity of the ballots are preserved. The Committees on Absentee Voting of the Commission shall be responsible for ensuring the secrecy and sanctity of the absentee voting process. In the interest of transparency, all necessary and practicable measures shall be adopted to allow representation of the candidates, accredited major political parties, accredited citizens’ arms and non-government organizations to assist, and intervene in appropriate cases, in all stages of the electoral exercise and to prevent any and all forms of fraud and correction.
Sec. 24. Prohibited Acts. – In addition to the prohibited acts provided by law, it shall be unlawful:
24.1 For any officer or employee of the Philippine government to influence or attempt to influence any person covered by this act to vote, or not to vote, for a particular candidate. Nothing in this Act shall be deemed to prohibit free discussion regarding politics or candidates for public office.
24.2 For any person to deprive any person of any right secured in this act or to give false information as to his/her name, address, or period of residence for the purposes of establishing his/her eligibility or ineligibility to register or vote under this act; or to conspire with another person for the purpose of encouraging the giving of false information in order to establish the eligibility or ineligibility of any individual to register or vote under this Act; or, to pay, or offer to pa, or to accept payment either fro application to vote in absentia or for voting.
24. 3 For any person to tamper with the ballot, the mail containing the ballots for overseas absentee voters, the election returns including the destruction, mutilation and manipulation thereof.
24.4 For any person to steal, destroy, conceal, mutilate or alter any record, document or paper as required for purposes of this Act.
24.5 For any deputized agent to refuse without justifiable ground, to serve or continue serving, or to comply with his/her sworn duties after acceptance of his/her appointments;
24.6 For any public officer or employee who shall cause the preparations, printing, distribution of information material, or post the same in website without the prior approval of the Commission.
24.7 For any public employee to cause the transfer, promotion, extension, recall of any member of the foreign service corps, including members of the attached agencies, or otherwise cause movement of any such member from his current post or position 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 being deputized by the Commission to undertake activities in connection with the implementation of this Act, shall campaign for or assist, in whatsoever manner, candidates in the elections.
For any person who is not citizen of the Philippines to participate by word or deed, directly or indirectly through qualified organizations/associations, in any manner and at any stage of the Philippine political process abroad, including participation in the campaign and elections.
The Provision of existing laws to the contrary notwithstanding, and with due regard to the Principle of Double Criminality, the prohibited acts described in this section are electoral offenses and punishable in the Philippines.
The penalties imposed under Section 264 of the Omnibus Election Code, as amended, shall be imposed on any person found guilty of committing any set of the prohibited acts as defined I this section. Provided, that the penalty or prision mayor in its minimum period shall be imposed upon any person found guilty of Section 24.3 hereof without the benefit of the operation of the Indeterminate Sentence Law. If the offender is a public officer or a candidate, the penalty shall be prision mayor in its minimum period. In addition, the offender shall be sentenced to suffer perpetual disqualification to hold public office and deprivation of the right to vote.
Immigrants and permanent residents who do not resume residence in the Philippines as stipulated in their affidavit under Section 5 (d) within three (3) years after approval of his/her registration under this Act and yet vote in the next elections contrary to the said section, shall be penalized by imprisonment of not less than one (1) year, and shall be deemed disqualified as provided in Section 5 (c) of this Act. His/her passport shall be stamped “not allowed to vote”.
IX COUNTING OF VOTES
MANNER
1. The Board of Election Inspectors shall read the ballots publicly and shall not postpone the count until it is completed. (Section 206, BP 881)
2. The Board of Election Inspectors shall assume such positions as to provide the watchers and the public unimpeded view of the ballot being read. (Section 25, RA 7166)
3. If on account of violence or similar causes it becomes necessary to transfer the counting of the votes to a safer place, the BEI may effect the transfer by unanimous approval of the board and concurrence of a majority of the watchers present. (Section 18, RA6646)
4. Where a commotion resulted in suspension of the counting, the BEI may recount the ballots. (Dayag vs. Alonzo)
SPECIAL PROBLEMS
1. Excess Ballots
If there are excess ballots, the poll clerk shall draw out as many ballots equal to the excess without seeing them, and the excess ballots shall not be counted. (Section 207, BP881)
2. Spoiled ballots
Ballots in the compartment for spoiled ballots are presumed to be spoiled ballots.
If the BEI finds that a valid ballot was erroneously deposited in the compartment for spoiled ballots. It shall 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 any of the following cases:
• The voter signed the ballot. (Ferrer vs De Alban, 101 phil 10)
• There were variations in the style of writing
• The name of a a candidate was written more than twice
• The voter wrote the names of well-known public figures who are not candidates such as actors, actresses and national political figures. (Protacto vs. De Leon, 9 SCRA 472)
• The ballot contains irrelevant expression.(Bautista vs. Castro,206 SCRA 305). However, the use of nicknames and appellations of affection and friendship, if accompanied by the name of the candidate does not annul the ballot except when it is used to identify the voter. (Section 211 (13), BP811)
c) Evidence aliunde is not necessary to prove a ballot as marked. (Bacobo vs. COMELEC,191 SCRA 576)
d) A ballot in which a sticker was stuck by another person to invalidate it should not be rejected. (Lerias vs. HRET,202 SCRA 808)
RULES FOR APPRECIATION OF BALLOTS
1. A ballot in which the first name or surname of a candidate is written should be counted for him, if there is no other candidate with the same name. (Lerias vs. HRET,202 SCRA 808)
2. If only the first name of a candidate is written and it sounds like the surname of another candidate, the vote shall be counted in favor of the latter.
3. If there are two or more candidates with the same name and one of them is incumbent, the vote shall be counted in favor of the incumbent.
4. When two or more words are written on different lines which are the surnames of two or more candidates with the same surname of an office for which the law authorizes the election of more than one, the vote shall be counted in favor of all the candidates. With the same surname.
5. When the word written is the first name of one candidate and the surname of another candidate, the vote shall be counted for the latter.
6. If the ballot contains the first name of one candidate and the surname of another, the vote shall not be counted for either.
7. An incorrectly written name which sounds like the correctly written name of a candidate shall be counted in his favor(Bautista vs Castro,206 SCRA 606)
8. If the word written is the incidental name of two or more candidates for the same office none of whom is incumbent, the vote shall be counted in favor of the candidate who belongs to the same ticket as all other candidates voted for in the ballot for the same constituency.
9. The erroneous initial of the first name accompanied by the correct surname of a candidate or the erroneous initial of the same accompanied by the correct first name of a candidate shall not annul the vote in his favor.
10. A ballot in which the correct first name but wrong surname of a candidate is written or the correct surname but wrong first name of a candidate is written ,shall not be counted in his favor.
11. Where a candidate named Pedro Alfonso died on the eve of the election and his daughter Irma Alfonso substituted him, ballots in which the name Pedro alfonso was written cannot be counted in her favor. (Afonso vs. COMELEC,232 SCRA 777)
12. If two or more candidates were voted for in an office for which the law authorizes the election for only one, the vote shall not be counted in favor of any of them.
13. If the candidate voted for exceed the number of those to be elected, the votes for the candidates whose names were firstly 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 be counted if the intention to vote for him can be determined, as when there is a complete list of names of other offices written below his name or the voter wrote the office for which he was electing the candidate. (Cordero vs.Moscardon,132 SCRA 414)
STRAY BALLOT
Rule 14 of section 211 of the Omnibus Election Code considers three kinds of votes as stray: (1) a vote containing initials only,(2) a vote which is illegible, and ( 3) a vote which does not sufficiently identify the candidate for whom it is intended. (Villarosa vs. HRET,340 SCRA 396)
The rule is in favor of the validity of the ballot, not otherwise… The appearance of print and script writings in a single ballot does not necessarily imply that two persons wrote the ballot…
Paragraph 18,section 149 of the REC, provides that unless it should clearly appear that it has been deliberately put by the voter to serve as identification mark, the use of two or more kinds of writing shall be considered innocent and shall not invalidate a ballot..
Under Section 211(19 ) of the OEC, any vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for an office for which he did not present himself shall be considered as an astray vote, but it shall not invalidate the whole ballot… The unexplained presence of prominent letters and words written with remarkably good hand marked the ballots and must be considered invalid…
When in a space in the ballot there appears a name of candidate that is erased and another clearly written, the vote is valid for the latter… incorrect spelling of a candidate’s name does not invalidate the ballot—for even the most literate person 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 or alteration in the election returns must be initialed by all members of the BEI.
2. After the announcement of the results in a precinct, the authorization of the COMELEC is needed to make any correction or alteration.
• If the petition is by all members of the BEI, the results of the election will not be affected, and none of the candidate affected objects, the COMELEC, upon being satisfied of the veracity of the petition, shall order the correction.
• If a candidate affected by the petition objects and the 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 should vote
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 evidence to prove anomaly in the election return when authenticated by testimony or documentary evidence of at least two members of the BEI.
X. CANVASSING AND PROCLAMATION
CANVASSING BODIES
1. Congress
a. President
b. vice president
2. COMELEC
a. Senators
b. Regional Officials
3. Provincial board of canvassers
a. Congressman
b. Provincial officials
4. District Board of Canvassers in each legislative district in Metro Manila
a. Congressman
b. Municipal official
5. City and Municipal Board of Canvassers
a. Congressmen
b. City and municipal officials
6. Barangay Board of Canvassers
a. Barangay officials
SUPERVISORY POWER OVER THE BOARD
The COMELEC exercises direct supervision and control over the proceedings before the board of canvassers (Mastura vs. COMELEC, 285 SCRA 493)
NATURE OF DUTY OF BOARD OF CANVASSERS
1. Ministerial- it has only the ministerial task of tallying the votes as reported in the election returns and declare the results, and cannot exercise the judicial power of deciding an election contest. The correction of the manifest mistake in the mathematical addition calls for a mere clerical task on the part of the board. The remedy is purely administrative. (Tatlonghari vs. COMELEC,199 SCRA 199)
2. Quasi-Judicial- The Comelec exercises judgment or discretion to determine whether any given return before it is genuine in connection with the canvass of votes.
PROCEDURE
1. The COMELEC has direct control and supervision over the board of canvassers except congress. 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 jurisdiction to restrain the municipal board of canvasser. (Librados vs. Casar,234 SCRA 13)
2. Manner of delivery of election Return
a. The BEI shall personally deliver to the city or municipal board of canvassers the copy of the election returns intended for them sealed in an envelop, signed and thumbmarked by the members of the BEI.
The fact that an election return was not locked in the ballot box when it was delivered to the board of canvassers is not ground for excluding it in the absence of proof that it was tampered with (Pimentel vs. Comelec,140 SCRA 126)
b. The BEI shall personally deliver to the provincial and district board of canvassers the copy of the election returns intended for them to the election registrar.
c. Watchers have the right to accompany the members of the BEI and the election registrar during the delivery of the election returns to the board of canvassers. (section 229, BP 881)
RIGHTS OF CANDIDATES
1. Every registered political party and candidate is entitled to one watcher in the canvassing center, but candidates for the local legislative bodies belonging to the same party are entitled collectively to one watcher. The fact that the watcher of a candidate was not present when the canvassing was resumed because he was notified is not a ground to annul the canvass. (Quilala vs. COMELEC,188 SCRA 902)
2. Any registered political party and candidate has the right to be present and to counsel
a. only one counsel may argue for each party of candidate; no dilatory action shall be allowed
3. Problem areas
a. Lost return
• If any election return has been lost, upon prior authority of the COMELEC, the board of canvassers may use authentic copy of it or a certified copy of it issued by the COMELEC(Section 233,BP 881). It is not necessary that all the other copies shall be considered.
• If an election return is missing a recount should not be ordered if there is any authentic copy available(Ong vs. COMELEC, 216 SCRA 866)
• If all copies of the Election returns were lost, a recount of the ballots should be made.
• The certificate of votes signed by the BEI and tally board cannot be used for the canvass, because only election returns are evidence of the results of the election. (Garay vs COMELEC, 262 SCRA 222)
b. Omission in the return
• in case of an omission in the election return of the names of a candidate or his votes, the board of canvassers shall require the BEI to complete it.
• If the votes omitted cannot be ascertained except by recounting the ballots, after ascertaining the integrity of the ballot has not been violated, the COMELEC shall order the BEI to count the votes for the candidate whose votes were omitted and to complete the return. Since the omission of the election return on the number of votes certain candidates received is not a discrepancy, a recount of the vote should be ordered instead of excluding the election return in the canvassing. (Patoray vs. COMELEC,249 SCRA 490)
c. Tampered or falsified return
• If the election return submitted to the board of canvassers was tampered with or falsified or prepared under duress or by persons other than the BEI, the board shall use the other copies of the election return.
• If the other copies of the election returns were also tampered with or falsified or prepared under duress or by persons other than the BEI, the COMELEC after ascertaining that the integrity of the ballot box has not been violated,shall order the BEI to recount the votes and prepare a new return.
• If the certificate of canvass was tampered with, the COMELEC may order that any of the copies of the election returns be used in making a new canvass.(Mastura vs. COMELEC,265 SCRA 493)
• Since an election return prepared without counting the ballots is a fabrication, it should not be counted and a count of the ballot should be ordered.( Lucero vss. COMELEC,234 SCRA 280)
d. Discrepancies in returns
If there are discrepancies in the other authentic copies of the return or in the words or figures in the same return and it will affect the result of the election, the COMELEC, after ascertaining that the integrity of the ballot box has not been violated, shall order the recount of the ballots.
If there is discrepancy between the tally and the written figures in the election return, it should be excluded from the canvassing and a recount of the ballots should be made or the certificate of votes cast in the precinct should be used. (Patoray vs. COMELEC,249 SCRA 440)
PROCLAMATION
1. An incomplete canvass of votes is illegal cannot be a basis of a valid proclamation (Samad vs. COMELEC,224 SCRA631,Loong vs. COMELEC,257 SCRA 1) a canvass cannot be reflective of the true vote of the electorate unless all returns are considered and none is omitted (Caruncho III vs. COMELEC,315 SCRA 693)
2. If the questioned election returns will not affect the result of the election, a proclamation may be made upon the order to the COMELEC after notice and hearing.
3. A proclamation made where the contested returns set aside will affect the result of the election and the board of canvassers proceeded to proclaim without the authority from the COMELEC is null and void. (Sema vs. COMELEC,347 SCRA 633)
4. The mere filing of a petition for disqualification is not a ground to suspend the proclamation of the winning candidate-in the absence of an order suspending proclamation, the winning candidate who is sought to be disqualified is entitled to be proclaimed as a matter of law. (Bagatsing vs CCOMELEC,320 SCRA 817)
5. Filing of pre-proclamation controversy under 2448 of BP881 is not the only grounds for the suspension of proclamation.
6. The proclamation of a winning candidate cannot 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 later declared to be disqualified or nor eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office… To allow the defeated and repudiated to take over the mayoralty despite the rejection by the electorate is to disenfranchise the electorate without any fault of their part and to determine the importance and meaning of democracy and the people’s right to elect officials of their choice… Court a quo correctly held that the second placer lost the elections and was repudiated by either a majority or plurality of voters. (Loreto vs. Brion,311 SCRA 694)
TIE
1. A tie among two or more candidates for president or vice president shall be broken by majority vote of both houses of congress voting separately (Section 4. ART VII, PHIL CONT”N)
2. In the case of other positions, the ties shall be broken by the drawing of lots.
FAILURE TO ASSUME OFFICE If a candidate fails to take his oath of office within 6 months from his proclamation, unless for a cause beyond the control of the elected official, his office will be considered vacant. (section 12, BP 881)
XI PRE-PROCLAMATION CASES
A. Definition; coverage
Pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under sections 233,234,235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns. (Chu vs. COMELEC,319 SCRA 482)
In pre-proclamation controversy, the board of canvassers and the COMELEC are not to look beyond or behind election returns which are on their face regular and authentic returns.(CHU,supra)
A pre-proclamation controversy is limited to an examination of the election returns on their face- The COMELEC as a general rule need not go beyond the face of the returns and investigate alleged election irregularities.
To require the COMELEC to examine the circumstances surrounding the preparation of the returns would run counter to the rule that a pre-proclamation controversy should be summarily decided.
Where the resolution of the issues raised would require the COMELEC to “pierce the veil” of election returns that appear prima facie regular, the remedy is a regular election protest.
The office of pre-proclamation controversy is limited to incomplete, falsified or materially defective returns which appear as such on the face. (Sebastian VS COMELEC, 327 SCRA 406)
B. JURISDICTION
1. Questions involving the legality of the composition or proceeding of the board of canvassers, except congress, may be raised initially in the board of canvassers or the COMELEC.(SEC 15 and 17, RA 7166)
2. Questions involving the election returns and certificate of canvass should be brought in the first instance before the board of canvassers only (Section 17, RA 7166)
C. SCOPE OF PRE-PROCLAMATION CONTROVERSY
ISSUES
1. Provincial, city and municipal officials
d. The composition of the proceeding of the board of canvassers is illegal
e. The returns are incomplete, contain material defects, appear to be tampered with or falsified or contain discrepancies in the same returns or in other authentic copies;
f. The returns were prepared under duress or are obviously manufactured or not authentic;
g. Substitute or fraudulent returns were canvassed, the result of which materially affect the standing of the aggrieved candidate.
3. President, vice president, senators, congressmen and barangay officials
No pre-proclamation case is allowed regarding the preparation, transmission, receipt, custody and appreciation of the election return or certificate of canvass.(Chaves vs COMELEC,211 SCRA 315)
ERRORS IN THE CERTIFICATE OF CANVASS
Correction of manifest errors has reference to errors in the election returns, in the entries of the statement of votes by precinct/per municipality, or in the certificate of canvass… a manifest clerical error is one that is visible to the eye or obvious to the understanding, and is apparent from the papers to the eye appraiser and the collector, and does not include an error which may, by evidence dehors the record to be shown to have been committed. (Trinidad vs. COMELEC,320 SCRA 836)
1. While the first sentence of section 15 of RA 7166 prohibits candidates in the presidential, Vice presidential, senatorial and congressional elections from filing pre-proclamation case, the second sentence allows the filing of petitions for correction of manifest errors in the certificate of canvass or election returns even in elections for president, vice-president, senators and members of the House of Representatives for the simple reason that the correction of manifest error will not prolong the process of canvassing nor delay the proclamation of the winner in the election. (Sandoval vs. COMELEC,323 SCRA 403)
2. The canvassing body may motu proprio or upon petition of an interested party correct manifest errors in the certificate of canvass or election return. (Sec 15, RA7166)
i. A copy of an election return or certificate of canvass was tabulated more than once.
ii. Two or more copies of the same election return or certificate of canvass were tabulated separately.
iii. There was a mistake in copying the figures into the statement of votes or certificate of canvass.
Errors in addition in the certificate of canvass may be corrected. (Ong vs COMELEC,221 SCRA 75)
iv. Returns from non-existent precincts were included in the canvass
The statement of votes cannot be corrected on the basis of a certification given to a watcher, since election returns are what are supposed to be the basis of the canvass. (Ramirez vs. COMELEC,270 SCRA 390)
STATISTICAL IMPROBABILITIES
An election return which is statistically improbable is obviously fabricated and should not be counted.
i. Where the votes cast in 50 precincts for the candidates for senators of one party equalled the number of registered voters, all the candidates for senators of that party received the same number of votes, and all the candidates for senators of the opposing party got no votes, the election returns are statistically improbable and are obviously fabricated.(Lagumbay vs. Climaco, 16 SCRA 175)
ii. Where only one candidate of a party got all the votes in some precincts and his opponent got zero, the other candidates for the other party for other positions received votes, the number of votes cast were less than the number of registered voters, the election returns are not statistically improbable. (Sangki vs COMELEC, 21 SCRA 1391)sss
iii. The mere fact that a candidate receive overwhelming majorities over another candidate in numerous precinct does not make the election return statistically improbable. (Ilarde vs. 31 SCRA71)
iv. The mere fact that the percentage of turnout of voters was high and that a candidate received high percentage of the votes does not make the election returns statistically improbable.(Doruelo vs. COMELEC ,133 SCRA 376)
v. The bare fact that candidate for public office had received zero vote is not enough to make returns statistically improbable (Ocampo vs.COKELRC,325SCRA 636)
v. Standing alone without more, the bare fact that a candidate for public office had receive zero votes in one or two precincts can not adequately support a finding that the subject election returns are statistically improbable- the doctrine of statistical improbability must be viewed restrictively, the utmost care being taken lest in penalizing the fraudulent and corrupt practices, innocent voters become disenfranchised…The doctrine of statistical improbability involves a question of fact and more prudential approach prohibits its determination ex parte.(Velayo vs. COMELEC,327 SCRA713)
ISSUES NOT RESOLVABLE IN PRE-PROCLAMATION CONTROVERSY
1. Issues involving the casting or the counting of the ballots are not proper in pre- proclamation cases.
a) The use of illegal election propaganda, vote-buying and terrorism of the voters are not proper issues in a pre-proclamation case. (Villegas vs. COMELEC, 99 SCRA 5892)
b) Questions on the appreciation of the ballots can not be raised in pre-proclamation case. (Alfonso vs.COMELEC, 232 SCRA 777)Thus, the claim that a candidate was not credited with votes cast for him because his name was similar to that of another disqualified candidate cannot be raised in a pre-proclamation case.(Chavez vs. COMELEC, 211 SCRA 315) Likewise, the claim that some ballots were spurious, marked or invalid cannot be raised in a pre- proclamation case. (Pataray vs. COMELEC,274 SCRA 470)
c) Terrorism of voters, voting by flying voters, deprivation of the right to vote of registered voters and vote buying cannot be raised in a pre-proclamation case (Allarde vs. COMELEC,159 SCRA 623)
d) Vote buying and secrecy in the preparation of ballots are not proper grounds for pre-proclamation case (Salazar vs. COMELEC,184 SCRA 433)
e) The claim that the voters were allowed to vote without verifying their identities, that there were discrepancies between the signatures in the voter\s affidavits and the voting record, and third persons falsely voted for voters who did not vote are not proper issues in a pre-proclamation case (Dipatuan vs. COMELEC,185 SCRA 86)
f) Technical examination of the signatures and thumbprints of the voters to prove substitute voting is not allowed in a pre-proclamation case. (Balindong vs. COMELLEC,260 SCRA 294)
g) The padding of the list of voters cannot be raised in a pre-proclamation case, since it does not involve the election return. (Ututahan vs. COOOMELEC,189 SCRA 335)
h) The fact that the voting was sham or minimal is not a ground for filing a pre-proclamation case, since this is properly cognizable in an election protest.(Salih vs. COMELEC,279 SCRA 19)
i) To look beyond or behind election returns is not a proper issue in pre-proclamation controversy (Ocampo vs. COMELEC, 325 SCRA 636)
j) The fact that the counting of the votes was not completed because of the explosion of grenade and that no election was held cannot be raised in a pre-proclamation case, as these are irregularities that do not appear on the face of the election returns. (Matalam vs. COMELEC,271 SCRA 733)
2. Administrative lapses which do not affect the authenticity of an election return cannot serve as basis for annulling the election return.
a) The failure to close the entries in the election returns with the signature of the BEI, lack of seals, absence of time and date of receipt of election return by the board of canvassers, lack of signature of watchers of the petitioner, and the lack of authority of the person who received the election returns do not affect the authenticity of the returns. (Baterina vs. COMELEC,205 SCRA 1)
b) The absence of the signature of the claimant of the BEI on the voter’s affidavits, list of voters and voting records, absence or excess of detachable coupons, discrepancies between the member of detachable coupons and the number of ballots, missing voter’s lists are mere administrative omissions and cannot be used as basis to annul an election return. (Arroyo vs. HRET, 246 SCRA 384)
3. Where the threats of the followers of a candidate did not affect the genuineness of an election return, it should not be excluded (Salvacion vs. COMELEC,170 SCRA 513)
SUMMARY DISPOSITION OF PRE-PROCLAMATION CONTROVERSY
1. Summary proceedings cannot be stretched to mean ex parte proceeding- summary simply means with dispatch, with the least possible delay, signifying that the power may be exercised without trial in the ordinary manner prescribed by law for regular judicial proceedings.(Velayo vs.Comelec,372 SCRA 713)
2. RA 7166 explicitly provides that it is only on the basis of the official records that the COMELEC can decide the pre-proclamation controversy in a summary manner. (Velayo vs. COMELEC,327 SCRA 713)
3. All pre-proclamation controversies on election returns or certificates of canvass shall be disposed of summarily-first by the record of canvassers and then. By the COMELEC. (Chu vs. COMELEC, 319 SCRA 482)
A. Procedure in contested composition or proceeding of the Board of Canvassers
The illegality of the composition of the board of canvassers cannot be questioned after the proclamation of the winner, since it must be raised immediately. (Laodenio vs. COMELEC,276 SCRA 705)
The ruling of the board of canvassers on question affecting its composition or proceeding may be appealed to the COOMELEC in 3 days.(Section 19 RA 7166)
B. Procedure in case of contested returns
1. Objections to an election return shall be submitted orally to the chairman of the board of canvassers at the time the return is presented for inclusion in the canvass and shall be entered in the form for written objection(Sec 20 (a) and (c),RA 7166)
a. An objection made after the canvass is late.(Guiao vs /comelec,137 SCRA 356,Navarro vs COMELEC,228 SCRA 596)
b. a petition for correction of the statement of votes may be filed after the proclamation of the winner, although no objection was made during the canvass, as error was discovered only after the petitioner got a copy of the statement of votes. (Duremdes vs. COMELEC,178 SCRA 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 for the annulment of proclamation of a candidate when it was his opponent who obtained the majority for what was corrected was not the entries but the computation of the votes. (Mentang vs. COMELEC,229 SCRA 666)
Under the COMELEC Rules of procedure, a petition for correction of the certificate 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 votes can be decided by the COMELEC en banc at the first instance, since it does not involve an election protest or a pre-proclamation case (Ramirez vs. COMELEC,270 SCRA 590)
The COMELEC has the power to order the correction of the statement of votes to make it conform to the election returns. (Castromayor vs. COMELEC,250 SCRA 298)
2. The canvass of any contested return shall be deferred and the board of canvasser shall proceed to canvass the uncontested return (Section 20(b),RA 7166)
3. Within 24 hours, the objecting party shall submit evidence in support of the objections.
4. Within 24 hours after presentation of the objection, a party may file a written opposition and attach the supporting evidence.(Section 20c, RA 7166)
5. The board of canvassers shall summarily rule in the contested returns (Section 20(d),RA 7166)
6. A party who intends to appeal should immediately inform the board of canvassers. Within 24 hours he must file a written and verified notice of appeal with the board of canvassers and take his appeal to the COMELEC within 5 days. (section 20(f),RA 7166)
a. Appellate jurisdiction
The RTC has NO jurisdiction to review the decision of the municipal board of canvassers to correct a certificate of canvass.(Cabanero vs CA)
The RTC has no jurisdiction to compel the municipal board of canvassers, which suspended the proclamation because of a possible discrepancy in the election return, to make a proclamation. (In re COMELEC Resolution no.2521,234 SCRA 1)
b. Period of appeal
Since the proclamation of a candidate who finished second made after the candidate who got the highest number of votes was killed is patently void, a late appeal should be allowed. (Benito vs. CCOMELLEC,235 SCRAS 436)
The COMELEC cannot by regulation shorten the period to question its decision before the SC for under the Constitution the period of 30 days can be shortened by law only.(Sardea vs. COMELLEC,225 SCRA 374)
7. The COMELEC shall decide the appeal within 7 days from receipt of the records, and the decision shall be executory after 7 days from receipt by the losing party. (Sections 18 and 20(f), RA 7166)
TERMINATION OF PRE-PROCLAMATION CASE
Once a proclamation has been made, the pre-proclamation case is no longer viable and should be dismissed (Sardea vs. COMELEC). However this rule presupposes the proclamation is valid. It does not apply if the proclamation is void, because it was based on incomplete returns.(Matalam vs. COMELEC 271 SCRA 733). The same holds true if the returns were manufactured. (Agbayani vs. COMELEC,186 SCRA 464). The same hols true where the computation of votes was erroneous. (Mentang vs. COMELEC,229 SCRA 669)
All pre-proclamation cases pending before the COMELEC shall be terminated at the beginning of the term of the office (noon of June 30) involved, and the rulings of the board of canvassers shall be deemed affirmed, without prejudice to the filing of an election protest by the aggrieved party. (Penaflorida vs. COMELEC,282 SCRA 241 And Barroso vs Ampig,328 SCRA 530)
The pre-proclamation case should no longer be decided if exclusion of the questioned election return will not change the result of the election. (Matalam vss. COMELEC,271 SCRA 733)
EFFECT OF FILING AN ELECTION PROTEST,QUO WARRANTO
1. As a general rule, the filing of an election protest or a petition for quo warranto precludes the subsequent filing of a pre-proclamation controversy, or amounts to the abandonment of one earlier filed. (Maruhom vs. COMELEC,331 SCRA 473)
2. The filing of an election protest results in abandonment of a pre-proclamation case even if the protest alleged it was filed as a precautionary measure, if he did not explain why.(Laodenio vs. COMELEC,276 SCRA 405)
3. The rule that the filing of a protest implies abandonment of the pre-proclamation case does not apply if:
i. The protest was filed as a precautionary measure (Mitmug vs. COMELEC,230 SCRA 54)
ii. The board of canvassers was improperly constituted, as when the Municipal Treasurer took over the canvassing without having been designated. (Saman vs. COMELEC,224 SCRA 631)
CONTINUANCE OF THE CASE
If the petition appears meritorious on the basis of the evidence presented so far, the COMELEC or the SC may order the case to continue. (Section 16, RA 7166)
PROCLAMATION
1. The Board of Canvassers shall not make any proclamation without any authorization from the COMELEC (Jamil vs COMELEC,283 SCRA 349)
2. Proclamation may be made if the contested returns will not adversely affect the results of the elections. (Section 20 (i), RA 7166)
3. The COMELEC may order the proclamation of other winning candidates whose election will not be affected by the pre-proclamation case. (Section 21, RA 7166)
4. A candidate for mayor who finished second cannot be proclaimed simply because the candidate who received the highest number of votes died, since he was not the choice of the people. (Benito vs. COMELEC, 23335 SCRA 436)
5. The wreath of victory cannot be transferred from the disqualified winner to the repudiated loser because the law then as now only authorizes a declaration of election in favor of the person who has obtained a plurality of votes to be declared elected. (Sunga vs. COMELEC,288 SCRA 76)
ANNULMENT OF PROCLAMATION
1. The COMELEC can annul a proclamation because of an error in the computation of the votes in the statement of votes since the proclamation is void.(Torres vs. COMELEC,270 SCRA 583)
2. Where the COMELEC, without prior notice and hearing, annulled the proclamation of a winning party and directed the Municipal Board of Canvassers to reconvene and effect corrections in the total number of votes received by the candidates and thereafter proclaim the winner, the expedient action to take is to direct the Municipal Board of Canvassers to reconvene and. after notice and hearing in accordance with rule 27, section 7 of the COMELEC Rules of Procedure, to effect the necessary correction, if any, in the election 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 the proclamation of a winning candidate on the basis of new and additional evidence which were not presented before the Board of Canvasssers and which were not furnished to the said candidate… Reliance should not be placed on mere affidavits for the purpose of annulling a winning candidate’s proclamation. (Velayo vs. COMELEC, 327 SCRA 713)
4. A proclamation subsequently declared void is no proclamation at all and while a proclaimed candidate may assume office on the strength of the proclamation of the Board of Canvassers he is only a presumptive winner who assumes office subject to the final outcome of the election protest. (Lonzanida vs. COMELEC, 311 SRA 602)
ELECTION CONTESTS
A. Jurisdiction
1) Supreme Court (Presidential Electoral Tribunal)
1.
• President
• Vice-President ( Sec. 4, Art VII, Phil. Const)
2) 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 Officials
• City Officials ( Sec 2(2). Art IX-C, PC; Sec 249 BP 881)
5) Regional Trial Court
• Municipal Officials ( Sec 2(2), Art IX-C, PC; Sec 251, BP 881, Papandayan vs. COMELEC , 230 SCRA 469)
6) Metropolitan Trial Court, Municipal Circuit Trial Court, and Municipal Trial Court
• Barangay Officials [ Sec 2(2), Art IX-C, PC; Sec 252 BP 881; Regatcho vs. Cleto, 126 SCRA 342]
• Sangguniang Kabataan ( Sec 1, RA 7166)
B. Action which may be filed
i. Election Protest
Requisites:
i. Must be filed by any candidate who has filed a certificate of candidacy and has been voted upon for the same office.
ii. On ground of fraud, terrorism, irregularities or illegal acts committed before, during or after the casting and counting of votes
iii. Within 10 days from the proclamation of the results of the election.
ii. Quo Warranto
Requisites:
i. Filed by any registered voter in the constituency
ii. On grounds of ineligibility or disloyalty to the Republic of the Philippines
iii. Within 10 days from the proclamation of the results of the election
C Procedure
1. Period of filing contest
a. Periods
i. President and Vice-President
1) Protest- 30 days ( Rule 14, Rules of Presidential Electoral Tribunal)
2) Quo Warranto- 10 days ( Rule 15, Rules of Presidential Electoral Tribunal)
ii. Senators
1) Protest – 15 days ( Rule 14, Revised Rules of Senate Electoral Tribunal)
2) Quo Warranto – 10 days ( Rule 15, Revised Rules of Senate Electoral Tribunal)
iii. Congressmen- 10 days ( Rule 16 and 17.1998 Rules of House of Representatives Electoral Tribunal)
iv. Regional, provincial and city officials-10 days ( Sec 250 and 253, BP 881; Republic vs. 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- 10 days ( Sec 1, RA 7808)
b. Exceptions
i. The period to file an election protest or quo warranto case is suspended from the filing of a pre-proclamation case until receipt of the order dismissing the case. (Sec 248, BP 881; Gatchalian vs CA , SCRA 208)
ii. If the dismissal was elevated to the Supreme Court , the period does not run until receipt of the dismissal by the Supreme Court, because review by the Supreme Court is part of the proceeding.(Gallardo vs Rimando, 187 SCRA 463)
iii. The running of the reglementary period to file an election protest is tolled by a party’s elevation to the Supreme Court of a COMELEC decision resolution of proclamation case. ( Roquero vs COMELEC , 289 SCRA 120)
iv. The period to file an election protest is suspended by the filing of the petition to annul the proclamation of the winner (Manahan vs Bernardo, 283 SCRA 505)
v. Since the filing of a pre-proclamation case merely suspends the running of the period to file an election protest, only the balance of the period is in case of dismissal. ( Roquero vs COMELEC , 289 SCRA 150)
vi. Where the evidence of the lack of Filipino citizenship of a provincial official was discovered only 18 months after his proclamation, the quo warranto case should be allowed even if it filed more than 10 days after his proclamation. ( Frivaldo vs COMELEC , 174 SCRA 245)
2. Protestant or Petitioner
President and Vice-President
i. protest- Candidate with second or third highest number of votes ( Rule 14, Rules of Presidential Electoral Tribunal)
ii. Quo Warranto- any voter ( Rule 15, Rules of Presidential Electoral Tribunal)
Senator
i. Protest- any candidate ( Rule 14, Revised Rules of Senate Electoral Tribunal)
ii. Quo Warranto- any voter ( Rule 15, 1998 Rules of Senate Electoral Tribunal)
Congressmen
i. Protest- any candidate
ii. Quo Warranto- Any voter ( Rule 17, 1998 Rules of House of Representatives Electoral Tribunal)
Regional, provincial, City Officials
i. Protest- any candidate ( Sec 250, BP 881)
ii. Quo Warranto- any voter ( Sec 253, BP 881)
Municipal Officials
i. Protest- any candidate- ( Sec 251 , BP 881)
ii. Quo Warranto- any voter ( Sec 253, BP 881)
Barangay Officials
i. Protest- any candidate- ( Sec 252, BP 881)
ii. Quo Warranto- any voter ( Sec 253, Bp 881)
Payment of Docket Fee
When the protestant included a claim for attorney’s fees in his protest and paid the docket fee for his claim for attorney’s fees but did not pay the basic docket fee for the election protest , the election protest should be dismissed. ( Gatchalian vs CA, 245 SCRA 208)
Allegations in Protest
• An election protest should contain the following jurisdictional allegations:
• The protestant is a candidate who duly filed a certificate of candidacy and was voted for in the election
• The protestee has been proclaimed elected
• The date of proclamation ( Miro vs COMELEC, 121 SCRA 466)
• An election protest which does not specify the precinct where the alleged irregularities occurred is fatally defective . (Pena vs HRET , 270 SCRA 340)
• Substantial compliance is sufficient . Thus the following allegations sufficiently comply with the first requirement.
• The protestant received a certain number of votes ( Anis vs Contreras, 55 Phil 929)
• The protestant finished second in the election ( Ali vs CFI of Lanao, 80 Phil 506)
• The protestant was a candidate voted for in the election with a valid certificate of candidacy for mayor ( Pamania vs Pilapil, 81 Phil 212)
• The protestant was one of the registered candidates voted for and he received a certain number of votes ( Jalandoni vs Sarcon, 94 Phil 266)
• The protestant was the official candidate of a [particular political party and received a certain number of votes ( Maquinay vs Bleza, 100 SCRA 702)
• The protestant was a candidate for governor and was voted for. ( Macias vs COMELEC, 182 SCRA 137)
• Even if the protest did not allege the date of the proclamation, it can be determined from the records of the case that it was filed on time, as when the protest was filed on the tenth from the date the casting of votes was held, the protest should not be dismissed. (Miro vs COMELEC, 121 SCRA 466)
Verification/Certificate of Absence of Forum Shopping
When the petioner failed to state in his verification that the contents of the election protest are true and correct of his own personal knowledge , said petition lacks proper verification and should be treated an unsigned pleading and must be dismissed. ( Soller vs COMELEC, 339 SCRA 685)
• Forum Shopping exists when the petitioner files multiple petitions or complaints involving the same issues in two or more tribunal or agencies. ( Domingo vs COMELEC, 313 SCRA 311)
• The requirement that every initial pleading should contain certification of absence of forum shopping applies to election cases for Circular No. 04-94 does not distinguish ( Loyola vs CA 245 SCRA 477, Tamarong vs Lubguban, 269 SCRA 624)
• SC Adm. Circular No 04-94 requiring a certification of non-forum shopping is applicable to election cases as it is mandatory . It is, however not jurisdictional.. The filing of a certification of absence of forum shopping after the filing of the protest but within the period for filing a protest is substantial compliance. ( Tumarong, supra)
• The strict application of the non-forum shopping rule in election contests would not work to the best interest of the parties and the electorate . An election contest, unlike an ordinary civil action , is clothed with public interest--- it involves not only the adjudication of private and pecuniary interest of rival candidates but paramount to their claims is the deep public concern involved and the need of dispelling the uncertainty over the real choice of the electorate. ( Barroso vs Ampig Jr, 328 SCRA 530)
Joinder of Election Protest and Quo Warranto Cases
• An election protest and quo warranto case cannot be filed jointly in the same proceeding. However, they can be filed separately. ( Luisaon vs Garcia , GR No L-10916, May 10, 1957). If they were joined in an action , they should be ordered separated. ( Pacal vs Ramos, 81 Phil 20)
Composition of Board of Canvassers
• The illegality of the composition of the board of canvassers cannot be raised in a quo warranto case, as only the ineligibility or disloyalty of the winner can be raised in such case ( Samad vs COMELEC, 224 SCRA 631)
Change Theory
• Substantial Amendments to the election protest cannot be made after the expiration of the period for filing an election protest. ( Arroyo vs HRET, 224 SCRA 384)
Preliminary Motions
A motion to dismiss and a motion for a bill of particulars may be filed in an election protest pending before the regular courts, since the COMELEC Rules of Procedure are not applicable to the regular courts because of the exclusive rule-making power of the Supreme Court. ( Aruelo vs CA, 227 SCRA 311)
Answer
An answer file out of time cannot be admitted ( Kho vs COMELEC 279 SCRA 463)
Where the answer of the protestee was filed out of time and a general denial was entered in favor of the protestee, the rule in civil cases that general denials operates as an admission is not applicable ( Loyola vs HRET, 229 SCRA 90)
A counter protest cannot be allowed if the answer was filed out of time ( Lim vs COMELEC, 282 SCRA 53)
Cash Deposit
A protestee who filed a counterclaim for attorney’s fees cannot be required to file a cash deposit since a cash deposit is required only for a counter-protest ( Roa vs Inting, 231 SCRA 57)
Injunction
A protestee cannot be enjoined from assuming office because of the pendency of an election protest. Until the case is decided against him, he has the right to assume office. ( Careno vs Dictado, 160 SCRA 759)
Substitution
a. Even if the protestee has resigned , the protest should continue , as a favorable judgement will be entitled the protestant to assume the office ( Delos Angeles vs Rodriguez, 46 Phil 599) The same holds true if the protestee accepted another position ( Calvo vs Maramba, GR No 13206, January 7, 1918)
b. If the protestee died, he should be substituted by his successor such as the vice-mayor ( Dela Victoria vs COMELEC, 199 SCRA 561) He cannot be substituted by his heirs, since public office cannot be inherited. ( Abeja vs Tanada, 236 SCRA 60)
c. If it is the protestant who died, he should be substituted by the public official who would have succeeded him, such as the vice-mayor. ( De Castro vs COMELEC 267 SCRA 806)
14. Abandonment
A defeated candidate for president who filed an election protest and ran for senator should be deemed to have abandoned the protest (Santiago vs Ramos, 253 SCRA 559)
15. Summary Judgment
An election protest cannot be decided summarly, as summary judgment applies only to ordinary civil action for recovery of money (199 SCRA 449)
16. Opening of Ballots
When an election protest is filed. The ballot boxes should be opened without requiring proof of irregularities, and misappreciation of ballots ( Manahan vs Bernardo, 283 SCRA 505)
The revision of ballots in an election protest filed with COMELEC should be held in Manila ( Cabagnot vs COMELEC, 260 SCRA 503)
17. Deferment of Counter Protest
A protestee cannot ask that before making the revision of the ballots involved in his counter-protest, the court first determine that the protestant would win on the basis of the revisions of the ballots involved in the protest (Abeja vs Tanada, 236 SCRA 60)
18. Certiorari
Under Sec 50 of BP 697, the COMELEC has jurisdiction over petitions for certiorari, prohibition and mandamus involving election cases pending before the courts whose decisions are appealabe to it ( Relampagos vs CUmba, 243 SCRA 690;Edding vs COMELEC 246 SCRA 502)
Where a petition for certiorari merely questioned the denial of the motion of the protestee for extension of the time to answer, the COMELEC cannot affirm the decision of the merits in the election protest. ( Acosta vs COMELEC, 293 SCRA 578)
19. Evidence
The genuineness of the handwriting in the ballots can be determined without calling handwriting experts. ( Erni vs COMELEC, 243 SCRA 578)
Unless the original documents or certified true copies of them cannot be produced or photo-copies cannot be used as evidence ( Arroyo vs HRET, 246 SCRA 384)
Ballots cannot be excluded on the ground that they were written by any person or were marked on the basis of mere photo-copies, as they are not the best evidence ( Nazareno vs COMELEC 279 SCRA 89)
20. Demurrer
A motion to dismiss for insufficiency of the evidence of the protestant has rested is a demurrer to the evidence. If it was granted but reversed on appeal , the protestee is deemed to have the right to present evidence ( Enojas vs COMELEC, 283 SCRA 229)
21. Decision
a. authentic election return cannot be annulled because the ballots were lost or destroyed (Arroyo vs HRET 246 SCRA 384)
b. If the winner is ineligible, the candidate who got the highest number of votes cannot be proclaimed elected as he did not get the majority or plurality of the votes (Sunga vs COMELEC, 288 SCRA 76)
c. Actual damages may be awarded in accordance with the law (Sec 259, BP 881)
The loser cannot be ordered to reimburse the winner for the expenses incurred in the election protest for no law provides for it ( Atienza vs COMELEC 239 SCRA 298)
d. The mere fact that the decision in favor of the protestant was reversed on appeal is not sufficient basis for the ruling that the protestant should be awarded attorney’s fees because the protest was filed for harassment (Malaluan vs COMELEC 254 SCRA 397)
e. Under Sec 264, par 1 of BP 881, as amended , the award of damages is no among the imposable penalties for the commission of any of the election offenses thereunder by any individual (Regalado vs CA 325 SCRA 516)
22. Execution of Judgment Pending Appeal
BP 881 and other election laws do not specifically provide for the execution pending appeal for judgment in election cases, unlike the Election Code of 1971…. The failure of the extant election laws to reproduce Sec 218 of the Election Code of 1971 does not mean that the execution of judgment pending appeal is no longer available in election cases….
The Supreme Court has explicitly recognized and given approval to execution of judgment pending appeal in election cases filed under existing laws. The rationale why execution pending appeal is allowed in election cases is to give much recognition to the worth of a trial judge’s decision as that which is initially ascribed by the law to the proclamation by the board of canvassers.
Governed by Sec 2, Rule 39 of the 1997 Rules of Civil procedure. Execution pending appeal should be based upon good reasons and a combination of two or more of them will suffice to grant execution pending appeal:
i. Public interest involved or will of the electorate
ii. The shortness of the remaining portion of the term of the contested office
iii. Length of time that the election contest has been pending ( Ferno vs COMELEC 328 SCRA 52)
iv. Filing of bond as a condition for the issuance of a corresponding writ of execution to answer for the payment of damages which the aggrieved party may suffer by reason of the execution pending appeal (Ramos vs COMELEC 286 SCRA 189)
• Execution pending appeal cannot be ordered on the basis of gratuitous allegations that public interest is involved and that the appeal is dilatory. (Camlian vs COMELEC 271 , 271 SCRA 757)
A motion for execution pending appeal filed after the expiration of the period of appeal can no longer be granted ( Relampagos vs Cumba 243 SCRA 690)
23. Motion for Reconsideration
a. One motion for reconsideration is allowed in the contest involving the following:
i. President- 10 days
ii. 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 City Officials – 5 days ( Sec 2, Rule 19 COMELEC Rules of Procedure)
b. No motion for reconsideration is allowed in election contests involving the following:
i. Municipal officials (Sec 256, BP 881; Veloria vs COMELEC, 211 SCRA 907) However this rule should not be applied to the dismissal of an election protest for failure of the counsel of the protestant to appear at the pre-trial, since the pre-trial is not applicable to the election protest. (Pangilinan vs De Ocampo, 232 SCRA )
ii. Barangay Officials ( Sec 19, Rule 37 and Sec 12, Rule 38 COMELEC Rules of Procedure)
iii. Sangguniang Kabataan ( Sec 19, Rule 37 and Sec 12 Rule 38, COMELEC Rules of Procedure)
c. Since only decisions of the COMELEC en banc may be elevated to the Supreme Court , a party who did not file for a motion for reconsideration of a decision of a division of the COMELEC cannot elevate the case to the Supreme Court (Reyes vs RTC of Oriental Mindoro, 244 SCRA 41)
d. A resolution of the COMELEC en banc is not subject to reconsideration, therefore any party who disagrees with it is to file a petition for certiorariunder Rule 65 of the Rules of Civil procedure – a motion for reconsideration of an en banc ruling, resolution, order, or decision except in election offense cases is a prohibited pleading under the COMELEC Rules of Procedure. For a party to wait until the COMELEC en banc denies his motion for reconsideration would be to allow the reglementary period for filing a petition for certiorari with the SC to run and expire. (Angela vs COMELEC , 322 SCRA 757)
24. Review
a. Jurisdiction
i. Senator- Supreme Court within 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 30 days ( Sec 7, Art IX-A Phil Const)
iv. Municipal Officials
• COMELEC within 5 days ( Sec 22 RA 7166; Sec 3 Rule 22 of COMELEC Rules of Procedure, Lindo vs COMELEC, 194 SCRA 25)
• Supreme Court - within 30 days ( Rivera vs COMELEC 199 SCRA 178)
v. Barangay Officials
• COMELEC within 5 days (Sec 2(2) ,Art IX-C, Phil Const; Sec 3, Rule 22 COMELEC Rules of Procedure; Calucag vs COMELEC 274 SCRA 405)
• Supreme Court within 30 days ( Flores vs COMELEC 184 SCRA 484)
b. Form
Where the appellant filed an appeal brief instead of a notice of appeal to the COMELEC, the appeal should not be dismissed, since the determination 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 dismissed for failure of the appellant to pay the appellate docket fee (Reyes vs RTC of Oriental Mindoro, 244 SCRA 41)
ii. An appeal may be dismissed if the full appellate docket fee was not paid , as payment of the full amount is indispensable for perfection of the appeal (Rodillas vs COMELEC, 245 SCRA 702)
d. Scope of Authority
Errors committed by the trial court may be considered even if they were not assigned as errors (Arao vs COMELEC 210 SCRA 290)
XIII. CRIMINAL OFFENSES
A,. Criminal and Electorate Aspects of An Election Offense
An election offense has criminal as well as electoral aspects ( Sunga vs COMELEC 288 SCRA 76)
1) Its criminal aspect involves the ascertainment of the guilt or innocence of the accused candidate like in any other criminal case, it usually entails a full-blown hearing and the quantum of proof required to secure a conviction beyond reasonable doubt.
2) Its electoral aspect is a determination of whether the offender should be qualified from office. This is done through administrative proceeding which is summary in character and requires 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 criminal cases involving election offenses, because by special provision of Sec 268 of BP 881 they fall within the jurisdiction of the Regional Trial Court (COMELEC vs Noynay 292 SCRA 354)
Under Sec 268 of BP 881, regional trial courts have exclusive jurisdiction to try and decide any criminal action or proceeding for violation of the Code including those penalized by imprisonment not exceeding 6 years, but except those relating to the offense of failure to vote ( Juan vs People 322 SCRA 125)
C. Offenses
1. Vote-buying
a. The fact that at least one voter in at least 20% of the precincts in a municipality , city or province was offered money by the relatives, leaders or sympathizers of a candidate to promote his election shall create a presumption of conspiracy to bribe voters.
b. The fact that at least 20% of the precincts of the municipality, city or province to which the office aspired for by the candidate is affected by the offer creates the presumption that the candidate and his campaign managers are involved in the conspiracy.
c. Any person who is guilty and willingly testifies shall be exempt from prosecution ( Sec 28, RA 6646)
d. The traditional gift-giving by the municipality during Christmas which was done to induce voters for the mayor does not constitute vote-buying ( Lozano vs Martinez, 285 SCRA 256)
2. Appointment of New Employees
The prohibition against appointment of a government employee within 45 days before regular election refers to positions covered by the civil service and does not apply to the replacement of a councilor who died ( Ong vd Martinez, 188 SCRA 830)
3. Unauthorized Entry into Polling Place
Mere presence of unauthorized person inside a polling place is an offense ( COMELEC vs Romillo, 158 SCRA 716)
4. Transfers of Government Employees
Since the Omnibus Election Code does not per se prohibit the transfer of government employees during the election period but only penalizes such transfers made without the prior approval of the COMELEC in accordance with the implementing regulations, the transfer of government employees before the publication of the implementing regulations is not an election offense. ( People vs Reyes, 247 SCRA 328)
Two elements of the offense prescribed under Sec 261 (h) of BP 881, as amended are:
(1) a public officer or employee is transferred or detailed within the election period as fixed by the COMELEC, and
(2) the transfer or detail was effected without prior approval of the COMELEC in accordance with its implementing rules and regulations (Regalado vs CA 325 SCRA 516)
5. Carrying Deadly Weapon in Precinct
To support a conviction carrying a deadly weapon inside a precinct, it is necessary that the deadly weapon be seized from the accused while he was in precinct (Mappala vs Munoz 240 SCRA 600)
6. Failure to make Proclamation
Proclaiming a losing candidate instead of the winner also constitutes failure to make a 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, the tampering, increasing or decreasing of votes received by a candidate in any election, and second, the refusal, after proper verification and hearing to credit the correct votes or deduct such tampered votes.(Pimentel vs. COMELEC,289 SCRA 586)
D. Prosecution
1. Section 2(6),Art IX-C “File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices.”
The COMELEC has exclusive jurisdiction to conduct preliminary investigation of and prosecute election offenses (Naldaza vs. Lavilles,254 SCRA 286)
2. This holds true even if the offense is committed by a public officer in relation to his office.(Corpuz vs. Tanodbayan, 149 SCRA 2281)
3. Whatever initiated motu propio or filed with the COMELEC by any other party, the complaint shall be referred to the COMELEC Law Department for investigation.. The COMELEC Chairman, in his personal capacity may file directly with the COMELEC Law Department pursuant to Section 4, Rule 34 of the COMELEC Rules of Procedure. No requirement in section 5 that only the COMELEC en banc may refer a complaint to the Law Department for investigation nor is there a rule against the COMELEC Chairman directing the conduct of a preliminary investigation, even if he himself were the complainant in his private capacity… Where the complaint was directly filed with the Law Department under Section 4 of Rule 32 of the COMELEC RULES of Procedure obviously there is no need to refer such complaint to the same Law Department… Under Section 5 of Rule 34 of the COMELEC Rules of Procedure, the preliminary investigation may be delegated to any of those officials specified in the rule upon the direction of the COMELEC Chairman (Laurel vs. Presiding Judge, RTC Manila Br 10, 323 SCRA 778)
4. A provincial election supervisor authorized to conduct a preliminary investigation may file a case without need of approval of the provincial prosecutor. (Pp. Vs. Inting,187 SCRA 788)
The COMELEC can deputize prosecutors to investigate and prosecute offenses even after election. (Pp. Vs. Basilla,179 SCRA 87)
Since it is a preliminary investigation, it is the COMELEC who will determine the existence of probable cause, the complainant cannot ask it to gather evidence in support of the complaint. (Kilosbayan Inc vs. COMELEC,280 SCRA 8920
The court in which a criminal case was filed may order the COMELEC to order a reinvestigation. (Pp. Vs. Delgado, 189 SCRA 715)
A prosecutor who was deputized by the COMELEC cannot oppose the appeal filed by the COMELEC from the dismissal of a case, since the power to prosecute election offenses is vested in the COMELEC.(COMELEC vs. Ssilva,286 SCRA 177)
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