Election-law-reviewer-morales.docx

Review Notes In ELECTION LAWS

By Atty. Hilario Justino F. Morales Law Professor & Head, Department of Political Law SLU College of Law Pre-bar Reviewer, Powerhaus Law Review Center

June, 2009

TABLE OF CONTENTS

1. Laws Governing and Affecting Elections 2. General Principles 3. The Commission of Elections Functions Constitutional Powers Statutory Powers 4. Voters: Qualifications and Registration Inclusion and Exclusion Cases 5. Political Parties and Party-List System 6. Candidates: Qualifications and Disqualifications VII. Certificate of Candidacy Grounds for Disqualification Jurisdiction, Procedure for Disqualification VIII. Campaign; Election Propaganda; Contributions and Expenditures 9. Election; Board of Election Inspectors; Watchers X. Casting and Counting of Votes Special Problems Appreciation of Ballots

XI. Canvass and Proclamation Problem Areas Proclamation XII. Pre-Proclamation Cases XIII. Election Contests XIV. Election Offenses

ELECTION LAWS LAWS GOVERNING AND AFFECTING ELECTIONS

ELECTIONS LAWS The major laws governing/affecting elections in the Philippines are: 1. Constitutional Provisions 1. Article V on Suffrage, 1987 Philippine Constitution 2. Article IX – C, Provisions on Commission on Elections

B. Statutory Laws 01. BP 881 – Omnibus Election Code of the Philippines – (December 3, 1985) This law, as amended, repealed PD 1296- Election Code of 1978. PD 1296 repealed RA 6388 – Election Code of 1971. RA 6388 repealed RA 180- The Revised Election Code. 02. RA 9225 – Citizenship Retention and Re-acquisition Act of 2003 03 RA 9189 – The Overseas Absentee Voting Act of 2003 04 RA 9165 – Comprehensive Dangerous Drugs Act of 2002 05. RA 9006 – Fair Election Act, Amending RA 6646 – (February 13, 2001) 06. RA 8295 – Lone Candidate Law – (June 6, 1997) 07. RA 8436 – Election Modernization Law – December 22 1997 08. RA 8189 – The Voter’s Registration Act of 1996 – (June 11, 1996) 09. RA 8173 – Act Granting All Citizens’ Arm Equal Opportunity To Be Accredited by the COMELEC, Amending RA 7166 – (December 20, 1995) 10. RA 8045 – Synchronized Election Act, Amending RA 7166 – (June 7, 1995) 11. RA 7941 – Party-List System Act – (March 3, 1995) 12. RA 7887 –Act Instituting Electoral Reforms, Amending RA 7166 – (Feb 20, 1995) 13. RA 7166 – Synchronized Elections Act – (November 26, 1991) 14. RA 6646 – Electoral Reforms Law of 1987, – January 5, 1988 15. RA 9369 – Automated Election System Law, January, 2007

C. Rules of Procedure 01. COMELEC Rules of Procedure 02. Rules of the Presidential Electoral Tribunal 03. Rules of the Senate/House of Representatives Electoral Tribunal 04. SC Rules of Procedure for Election Contest Involving Municipal Officials; SC AO 54-2007 and Rules of Court (suppletory to the specific rules adopted by electoral tribunals) 4. Jurisprudence on election laws

General Coverage of the Law on Elections 1. Conduct of election, including conduct of plebiscite initiative referendum and recall as provided in Section 2, Article IX-C of the Constitution 1. Organization and Management c. Election Day Activities

of the COMELEC d. Post-Election Day Activities 2. Pre-election Activities

2. Electoral Adjudications, including jurisdiction and procedural matters 1. Accreditation: Political parties/citizens’ d. Annulment of Registry List arms/sectoral parties and organization e. Pre-Proclamation Controversies 2. Disqualification cases f. Annulment of Proclamation 3. Petition for postponement g. Election Contests /failure of elections h. Quo warranto cases

1 II. GENERAL PRINCIPLES 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 government. It involves the choice or selection of candidates to public office by popular vote. (Sambrani vs. COMELEC, 438 SCRA 319)

PLEBISCITE – a vote of the people expressing their choice for or 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 to secure the approval of the people directly affected, before certain proposed changes affecting local government units may be implemented.

INITIATIVE – it is the process by which the registered voters directly propose amendments to the constitution or to propose, enact, amend laws, national or local, through an election called for the purpose. L errrrerro rrc a l init I rrerrrfa tive is the legal process whereby the registered voters of a local government unit may directly propose, enact, or amend any ordinance. Initiative is a process of law-making by the people themselves without participation of their elected representatives. (Subic Bay Metropolitan Authority vs. COMELEC, 262 SCRA 492)

The constitutional provisions on initiative as a mode of amending the Constitution is not a selfexecuting provision. While there is an existing law on initiative, RA 6735 – An Act Providing for a System of Initiative and Referendum, the same is inadequate and incomplete to cover the system of initiative to amend the Constitution. Such inadequacy cannot be cured by empowering the

COMELEC to promulgate implementing rules and regulations.(Santiago vs. COMELEC, GR No. 127325, March 19, 1997)

Likewise, this mode can be used only to propose mere amendments and not revisions to the Constitution, such as shifting the system of government from presidential to parliamentary. (Lambino vs. COMELEC 505 SCRA 160) An amendment is directly proposed by the people through initiative upon a petition only if the people sign on a petition that contains the full text of the proposed amendments which may either be written on the face of the petition or attached to it. (Ibid.)

REFERENDUM – it is the submission of a law passed by the national or local legislative body to the registered voters at an election called for the purpose for their ratification or rejection.

RECALL – it is a method by which a local elective official 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 signed by a required percentage of the qualified voters. RA 9244 effectively amended Section 70 of the Local Government Code and thus, eliminated the preparatory recall assembly as one of the modes of initiating recall and provided for a new procedure in the conduct of recall initiated through written petition of registered voters.

GENERAL PRINCIPLES

Theory of suffrage prevailing in the Philippines. Suffrage is both a privilege and an obligation.

System of suffrage adopted in the Philippines. Strict secrecy in balloting, otherwise known as the Australian ballot system.

Nature of Suffrage 1. It is not a natural right of the citizen but merely a privilege to be given or withheld by the lawmaking power subject to constitutional limitations. It is not a necessary accompaniment of citizenship. It is granted to individuals only upon the fulfillment of certain minimum conditions deemed essential for the welfare of society. 2. In a sense of a right conferred by the Constitution, suffrage is classified as a political right, as well as bounden duty of every citizen, enabling him to participate in the process of government to

assure that it truly derives its powers solely from the consent of the governed. The principle is that of one man, one vote.

Power of Congress to regulate suffrage; constitutional mandate Since the right of suffrage is a political and not a natural right, it is within the power of the State to prescribe the manner in which such right shall be exercised. Congress is mandated by the Constitution (Sec. 2, Art. V): 1. To provide a system for securing the secrecy and sanctity of the ballot, and for absentee voting by qualified Filipinos abroad, and

2. To design a procedure for the disabled and the illiterate to vote without the assistance of other persons. –o0o– III. THE COMMISSION ON ELECTIONS Nature, Purpose of the COMELEC It is an independent administrative tribunal, co-equal with the other departments in respect to the powers vested in it. It is outside the influence of political parties and the control of executive, legislative and judicial organs of the government. Since purity of elections is one of the fundamental requisites of popular government, it is obvious that the sanctity of the ballot and the free and honest expression of the popular will can be protected by an independent office such as the COMELEC whose sole work is to enforce laws on elections.

Composition, Qualifications, Appointment, Term of Office The COMELEC is composed of a Chairman and six (6) Commissioners. The Chairman and the Members of the Commission shall be:

1. natural-born citizens of the Philippines 2. at least thirty-five years of age 3. holders of a college degree 4. must not have been candidates for any elective position in the immediately preceding election 5. majority thereof, including the Chairman shall be members of the Philippine Bar who have been engaged in the practice of law for at least 10 years.(Cayetano vs. Monsod, 201 SCRA 210) Reason: COMELEC exercises quasi-judicial powers. “Engaged in the practice of law” means to engage in

“any activity, or out of court, which requires the application of law, legal procedure, knowledge, training and experience.” (Ibid.)

The Chairman and Members are appointed by the President with the consent of the Commission on Appointment for a term of 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 older members in the performance of its functions, and makes for greater responsibility for its policies and decisions and serves as a guarantee against arbitrary action which is likely to occur in a body handling partisans questions.

Duration of Appointment In reckoning the seven-year term, the starting point is always February 2, 1987, even if the appointee actually took office after February 2. In case of a belated appointment or qualification, the interval between the start of the term and the actual qualification of the appointee must be counted against the latter. There is no need to expressly state the beginning of the term of office as this is understood to coincide with the effectivity of the Constitution upon its ratification on February 2, 1987. (Gaminde vs. COA, 347 SCRA 655) This is in keeping with the rotational system in order to preserve the staggering of terms. A member appointed to fill a vacancy shall serve only for the unexpired term also to preserve the staggered terms of office.

Prohibited, Valid Appointment Appointment and designations in temporary or acting capacity are not allowed to preserve its independence. (Brillantes vs. Yorac, 192 SCRA 358) A temporary appointment can still be revoked or withdrawn by the appointing authority.

THE COMMISSSION ON ELECTIONS

However, an ad interim appointment issued to the Chairman of the COMELEC is a permanent appointment, and therefore valid, as the same can no longer be revoked by the President. (Matibag vs. Benipayo, 380 SCRA49)

Disabilities, inhibitions/disqualifications 1. Shall not, during tenure, hold any other office or employment 2. Shall not engage in the practice of any profession

3. Shall not engage in the active management or control of any business which in any way 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 GOCCs or their subsidiaries.

Safeguards to insure the independence of the COMELEC 1. It is constitutionally created; may not be abolished by statute. 2. It is expressly described as “independent”. 3. It is conferred with certain powers and functions which cannot be reduced by statute. 4. The Chairman and Members cannot be removed except by impeachment. 5. The Chairmen and Members are given fairly long term of office of seven years. 6. The Chairman and Members may not be reappointed or appointed in an acting capacity, the same being a mere temporary appointment which can still be revoked by the appointing authority. (Brillantes vs. Yorac, 192 SCRA 358) 7. The salaries of the Chairman and members are relatively high and may not be decreased during continuance in office. 8. The COMELEC enjoy fiscal autonomy; funds appropriated by Congress to the COMELEC shall be automatically released. 9. The COMELEC may promulgate its own procedural rules, provided they do not diminish, increase or modify substantive rights (though not subject to approval by the Supreme Court, the same may be subject to disapproval by the Supreme Court) 10. The Implementing Rules and Regulations that the COMELEC may promulgate to enforce and administer election laws cannot be revised, reviewed amended or approved by Congress.

In Macalintal vs. COMELEC, 405 SCRA 614, the Supreme Court ruled that Section 25 of RA 9189 empowering Congress through the Joint Congressional Oversight Committee to exercise the power to review, revise, amend and approve the Implementing Rules and Regulations that the COMELEC shall promulgate, is unconstitutional This portion of the law violates the independence of the COMELEC as it restricts the COMELEC’s constitutional domain to enforce and administer all election laws.

11. The Chairman and Members are subject to certain disqualifications calculated to strengthen their integrity. (See disqualifications, inhibitions and disqualifications) 12. The COMELEC may appoint their own officials and employees in accordance with Civil Service Laws.

En Banc & Division Cases The COMELEC may sit en banc or in two divisions. All election cases shall be heard and decided in division, provided that motions for reconsideration shall be decided en banc. (Sec. 3, Art. IX-C)

THE COMMISSION ON ELECTIONS

Under Section 2 of Article IX-C of the 1987 Constitution, the COMELEC exercises both administrative and quasi-judicial powers. The COMELEC administrative powers are found in Section 2 (1), (3), (4), (5), (6), (7), (8) and (9). Of Article IX-C. The 1987 Constitution does not prescribe how the COMELEC should exercise its administrative powers, whether en banc or in division. The Constitution merely vests the COMELEC’s administrative powers in the “Commission on Elections,” while providing that the COMELEC “may sit en banc or in two divisions.” Clearly, the COMELEC en banc can act directly on matters falling within its administrative powers. Indeed, this has been the practice of the COMELEC both under the 1973 and 1987 Constitution. (Baytan vs. COMELEC, 396 SCRA 703)

The COMELEC exercise of its quasi judicial powers is subject to Section 3 of Article IX-C which expressly require that all election cases, including pre-proclamation cases shall be decided by the COMELEC in division, and the motion for reconsideration shall be decided by the COMELEC en banc. It follows that the COMELEC is mandated to decide cases first in the division and then upon motion for reconsideration en banc only when the COMELEC exercises quasi-judicial powers. (Ibid.)

Quasi-judicial Functions The following cases, where the COMELEC exercises quasi-judicial functions, must be decided in Division before they may be heard en banc on motion for reconsideration:

1. Petition to deny or cancel a certificate of candidacy (Garvida vs. Sales, 271 SCRA 764; Bautista vs. COMELEC, 414 SCRA 299) Nowhere it is provided in the law that the COMELEC en banc has the power to assume jurisdiction motu propio over a petition to deny due course pending before a division of the Commission. (Roces vs. HRET, 469 SCRA 671) 2. Cases appealed from the RTC or MTC (Zarate vs. COMELEC, 318 SCRA 608) 3. Petition for certiorari involving incidental issues of election protest. (Soller vs. COMELEC, 339 SCAR 685) 4. Election protests and quo warranto cases. 5. Pre-proclamation controversies. (Milla vs. Balmores-Laxa, 408 SCRA 679)

Exceptions. 1) The COMELEC en banc, however, may directly assume jurisdiction over petitions for correction of manifest errors in the tabulation or tallying of results (Statement of Votes) by the Board of Canvassers, notwithstanding that the same is a pre-proclamation controversy. Sec. 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 COMELEC en banc, provided that such error could not have been discovered during the canvassing despite the exercise of due diligence and proclamation of the winning candidates had already been made. (Torres vs. COMELEC, 270 SCRA 583; Ramirez vs. COMELEC, 270 SCRA 590; Sandoval vs. COMELEC, 323 SCRA 403) 2) Likewise, the COMELEC, although performing quasi-judicial function, shall meet en banc when deciding a motion for reconsideration of a decision of a division.

Hence, the Supreme Court can set aside the resolutions/ decisions of the COMELEC because the COMELEC en banc took 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)

THE COMMISSION ON ELECTIONS Administrative Functions The following are among the administrative functions of the COMELEC and therefore, the Commission must meet en banc:

1. When promulgating its rules of procedure;

2. When exercising the exclusive power to postpone, to declare a failure of election, or to call a special election. (Benito vs. COMELEC, 349 SCRA 705) A petition to declare a failure of election is neither a pre-proclamation controversy nor an election case. (Borja vs. COMELEC, 260 SCRA 604)

3. When it determines the existence of probable cause. (Faelnar vs. COMELEC, 331 SCRA 429) This includes the approval of the findings in a preliminary investigation by the COMELEC Law Department.

4. When deciding a motion for reconsideration of a decision of a division. NOTE: This is, however, a quasi-judicial power judicial power of the COMELEC, but the Commission has to meet en banc for this purpose.

The COMELEC en banc shall decide motion for reconsideration only of a of “decision” of a division, meaning those acts of final character. (Gementiza vs. COMELEC, 353 SCRA 724) Also, under, Rule 13 Section 1 (d) of the COMELEC Rules of Procedure, a motion for reconsideration of an en banc ruling, order or decision of the COMELEC is not allowed.

Only final orders of the COMELEC in Division may be raised before the COMELEC en banc. Section 2 of Article IX-C of the Constitution mandates that motions for reconsideration of final decisions shall be decided by the COMELEC en banc. (Repol vs. COMELEC, 428 SCRA 321) Thus, interlocutory orders issued by a division of the COMELEC cannot be elevated to the COMELEC en banc. (Kho vs. COMELEC, 279 SCRA 463)

Exception: In Rosal vs. COMELEC, GR Nos. 168253 and 172741, March 16, 2007, it was held that interlocutory order of a COMELEC Division should be challenged at the first instance through a proper motion, such as motion for reconsideration, filed with the division that rendered the order. If that fails and there is no other plain, speedy and adequate remedy, (such as recourse to COMELEC En Banc, because it is not permissible by its rules) the party aggrieved by the interlocutory order may elevate the matter to the Supreme Court by means of petition for certiorari on the ground that the order was issued without or in excess of jurisdiction or with grave abuse of discretion.

Automatic Elevation. While automatic elevation of a case erroneously filed with the Division to En Banc is not provided in the COMELEC Rules of Procedure, such action is not prohibited. If the procedure to be followed in the exercise of such power or jurisdiction is not specifically provided for by law or COMELEC Rules of Procedure, any suitable process or proceedings may be adopted. Thus. there is nothing in the COMELEC Rules of Procedure to prevent the COMELEC Second Division from referring the petition to annul the elections to the COMELEC EN Banc. (Mutilan vs. COMELEC, GR No. 1712248, April 2, 2007)

Quorom and Decisions When sitting en banc , four (4) Members of the Commission shall constitute a quorum for the purpose of transacting business. The concurrence of the majority of the Members of the Commission shall be necessary for the pronouncement of a decision, resolution and order or ruling. The Commission en bancshall decide within thirty (30) days from the date a case or matter is deemed submitted for decision or resolution, except a motion for reconsideration

of a decision or resolution of a Division in Special Actions and Special Cases, which shall be decided in fifteen (15) days from the case or matter is deemed submitted for decision.

The provision of the Constitution is clear that decisions reached by the COMELEC en banc should be the majority vote of all its members and not only those who participated and took part in the deliberations and voted thereon. The doctrine laid down in Cua is therefore abandoned. (Estrella vs. COMELEC, 428 SCRA 789)

When sitting in Divisions, two Members of a Division shall be necessary to reach a decision, resolution, order or ruling. The concurrence of at least two Members of a Division shall be necessary to reach a decision. If this required number is not obtained, the case shall be automatically elevated to the Commissionen banc for decision. A COMELEC Division shall decide a case or matter within ten (10) days from the date it is deemed submitted for decision or resolution, except in Special Actions and Special Cases which shall be decided or resolved within five (5) days from the date they are deemed submitted for decision.

Under Section 13 of the COMELEC Rules of Procedure, a decision or resolution of a Division in a special action becomes final and executory after the lapse of 15 days following its promulgation while a decision or resolution of the COMELEC En Banc becomes final and executory after 5 days from its promulgation unless restrained by the Supreme Court.

A decision becomes binding only after its promulgation. If at the time it is promulgated, a judge or member of the collegiate court who had earlier signed or registered his vote has vacated office, his vote on the decision must automatically be withdrawn or cancelled. The effect of the withdrawal of their votes would be as if they had not signed the resolution at all and only the votes of the remaining commissioners would be properly considered for the purpose of deciding the controversy. Therefore, after two Commissioners retired, the remaining four Commissioners constituted the total membership and constituted a quorom The vote of three is a majority vote of all. (Dumayas Jr. vs. COMELEC, 357 SCRA 358) A Commissioner before his retirement from the COMELEC who signed a draft ponencia in a case is deemed to have vacated his office without the final decision or resolution having been promulgated. A final decision or resolution becomes binding only after it is promulgated and not before. Accordingly, 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

Power to Promulgate Rules.The 1987 Constitution, under Article IX-A, Section 6 and Article IX-C, Section 3, grants and authorizes the COMELEC en banc to promulgate its own rules of procedure as long as such rules concerning pleadings and practice before it or before any of its offices do not diminish, increase, or modify substantive rights; on the other hand, the Supreme Court has a rule-making power provided in Article VIII, Section 5, paragraph (5) – the constitutional prerogative and authority to strike down and disapprove rules of procedure of special courts and quasi-judicial bodies. (Tan vs. COMELEC, 507 SACRA 352) The Rules of Court applies suppletorily to proceedings before the COMELEC. (Pangarungan vs. COMELEC, 216 SCRA 522) In case of conflict between a rule promulgated by the COMELEC and the Rules of Court, the rule of the Commission should prevail if the proceeding is before the COMELEC. But if the proceeding is before a court, the Rules of Court prevails. The COMELEC cannot adopt a rule prohibiting the filing of certain pleadings in the regular court. The power to promulgate rules concerning pleadings, practice and procedure in all courts is vested on the Supreme Court. (Aruelo Jr. vs. COMELEC, 227 SCRA 311)

Liberal Construction of Rules. It has long been enunciated that the COMELEC has discretion to liberally construe its rules. The COMELEC is a quasi-judicial body and hence it is not bound by the technical rules of evidence – it can accept evidence which cannot be admitted in a judicial proceedings where the rules of court on evidence are strictly observed. (Tecson vs. COMELEC, 427 SCRA 277)

Power to Suspend Rules. It may suspend its Rules or any portion thereof in the interest of justice. Disputes in the outcome of election involve public interest; as such, technicalities and procedural barriers should not be allowed to stand if they constitute an obstacle to the determination of the true will of the electorate in the choice of their elective officials. (Saliguin vs. COMELEC, 485 SCRA 219) Thus, it can take cognizance of an unverified petition for correction.(Baddiri vs. COMELEC, 459 SCRA 808) It can also suspend its rules because it has the mandate to determine the true victor in an electoral contest. Thus, the COMELEC committed no grave abuse of discretion when it allowed a party to file its petition 15 days after petitioner’s proclamation. (Octava vs. COMELEC, GR No. 166105, March 22, 2007)

Judicial Review of Decisions Any decision, order or ruling of the COMELEC en banc may be brought to the Supreme Court on certiorari by the aggrieved party within 30 days from receipt of the copy thereof. (Sec. 7, Art. IXA) 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)

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. (Guerrero vs. COMELEC, 336 SCRA 458) The mode by which a decision, order or ruling en banc may be elevated to the Supreme Court is by 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 SCRA 358)

What is contemplated by the term “final orders, rulings and decisions” of the COMELEC reviewable by certiorari by the Supreme 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 SCRA 506)

Not quasi-judicial. 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 functionns 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 vs. Makalintal, 340 SCRA 506)

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 an order rendered in the legal controversy before it but merely as incident to its inherent administrative functions over the conduct of elections. Any question arising from said order may be taken in an ordinary civil action. (Filipinas Engineering vs. Ferrer, 135 SCRA 25)

The alleged failure of 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 Supreme Court’s function of judicial review as it is undoubtedly administrative in nature, beyond judicial interference. (Chavez vs. COMELEC, 211 SCRA 315)

Exception. As a general rule, administrative orders of the COMELEC is not a proper subject of a special civil action for certiorari. But when the COMELEC acts capriciously or whimsically, with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing such order, the aggrieved party may seek redress from the Supremes Court via special civil action for certiorari under Rule 65 of the Rules of Court. (Macabago vs. COMELEC, 392 SCRA 178)

Rule 64 of the Rules of Court applies only to judgments or final orders of the COMELEC, in the exercise of its quasi-judicial functions. The rule does not apply to interlocutory orders of the COMELEC in the exercise of its quasi-judicial functions or to its administrative orders. In a case where the assailed order of the COMELEC declaring private respondent’s petition to be one for annulment of the elections or a declaration of a failure of election in the municipality and ordering the production of the original copies of the VRR’s for technical examination is administrative in nature. Rule 64, a procedural device for the review of final orders, resolutions or decisions of the COMELEC, does not foreclose recourse to the Supreme Court under Rule 65 from administrative orders of the COMELEC issued in the exercise of its administrative function. (Ibid.)

A decision, order or resolution of a division of the COMELEC must first be reviewed by the COMELEC en banc via a motion for reconsideration before the final en banc decision may be brought to the Supreme Court on certiorari. (Ambil vs. COMELEC, 344 SCRA 358) Constitutional Powers, Functions (Art. IX-C, Sec.2) 1. Enforce and administer laws relative to conduct of elections. Controversies concerning the conduct of a plebiscite is a matter that involves the enforcement and administration of a law relative to a plebiscite. It falls under the jurisdiction of the COMELEC under Section 2(1), Article IX-C of the Constitution… The conduct of plebiscite and determination of its results have always been the business of the COMELEC and not the regular courts. (Cayetano vs. COMELEC, 479 SCRA 513)

Another reason why the jurisdiction of the COMELEC to resolve disputes involving plebiscite results should be upheld is that such a case involves the appreciation of ballots which is best left to the COMELEC because of their indisputable expertise in the field of election and related laws.(Buac vs. COMELEC, 421 SCRA 92) 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)

2. Decide elections 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 civil action nor criminal 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)

Original Jurisdiction. The original jurisdiction of the COMELEC involves election contest for regional, provincial and city officials.

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

The COMELEC has appellate jurisdiction over election protest cases involving elective municipal officials decided by courts of general jurisdiction. (Carlos vs. Angeles, 346 SCRA 571) 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 be first filed within five days after the promulgation of the MTC’s decision. (Antonio vs. COMELEC, 315 SCRA 62) The elections of SK are governed 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… The doctrine of Mercado vs. Board of Election Supervisors, 243 S 423 (1995), is no longer controlling. (Marquez vs. COMELEC. 313 SCRA 103)

3. 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.(Nacionalista Party vs. COMELEC, 84 Phil 49) Hence, inclusion and exclusion proceedings, having been expressly withheld by the Constitution from the COMELEC, are cognizable by the MTC’s. 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) 4. Deputize law enforcement agencies with the concurrence of the President 5. Register political parties and accredit its citizens arms 6. File petitions for inclusion and exclusions; investigate and prosecute violation of election laws

7. Recommend to Congress measures to improve election laws 8. 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, it can investigate an administrative charge against such an officer to determine whether

or not it should recommend that disciplinary action be taken against him. (Tan vs. COMELEC, 237 SCRA 353) 9. Regulation of public entities and media – Sec. 4, Art. IX-C The COMELEC is expressly authorized to supervise or regulate the enjoyment or utilization of all media communications and information to ensure equal opportunity, time and space. The authority given to the COMELEC is to be exercised for 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. 10. Make minor adjustments of the apportionment of legislative districts. (Sec 2, Ordinance appended to the Constitution) 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 reapportionment of legislative districts. (Montejo vs. COMELEC, 242 SCRA 415) 11. Adjust the apportionment in case of creation of new provinces or cities. (Sec. 3, Ordinance appended to the Constitution)

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) 12.Pardon, etc., of violators of election laws. 13. Promulgate rules of procedure concerning pleadings and practice before it or any of its offices. (Sec. 6, Art IX-C) 14. Submit report on how a previous elections was conducted. Statutory Powers 1. Power to declare failure of election and call for special election The plea for a special election must be addressed to the COMELEC and not to the Supreme Court since the grounds for failure of election clearly involve questions of fact. (Loong vs. COMELEC, 305 SCRA 832) 2. Exclusive original jurisdiction over all pre-proclamation controversies –Sec. 242, BP 881 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.(Beso vs. Aballe, 326 SCRA 100) The last part of Sec. 50, BP 697 remains in full force and effect and had not been repealed by BP 881. The ruling in Veloria vs. COMELEC, 211 SCRA 907, is now abandoned. (Relampagos vs. Cumba, 243 SCRA 690 & Edding vs. COMELEC, 246 SCRA 502) Both the Supreme Court 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 that 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, equipment, materials or services needed for the holding of election 11. Carry out continuing and systematic campaign to educate the public about elections 12. Prescribe the use or adoption of the latest technological and electronic devices –Section 52 (i) BP 881 and Section. 6, RA 8436 The COMELEC three-pronged modernization program for the election process includes:

1. Phase I – Voter’s Validation System (VVS) which aims to clean and update the voters’ lists nationwide through electronic fingerprinting and digital imaging of registrants and registered voters with the use of limited date capture machines (DCMs). 2. Phase II – Automated Counting and Canvassing of votes (ACC), specifically referred to by RA 8436 as the automated election system using appropriate technology for voting and electronic (optical scanning mark-sense reading) device to count votes, and canvass results. 3. Phase III – Electronic Transmission Consolidation and Dissemination (ETCD) of election results which involves the transmission of counted votes from the counting centers to the municipal, district, city and national canvassing centers, and thereafter, of canvassed results to the higher canvassing levels to enable the COMELEC to proclaim winning candidates early and ease postelection tension. This will involve the use of leased Very Small Aperture Technology (VSAT) satellite to transmit encrypted vote counts for canvassing at the municipal, city, district/provincial and level national levels.

13. Fix other reasonable periods for certain pre-election requirements such as registration of voters (see: Akbayan vs. COMELEC) and participation in the party-list system (see: Aklat vs. COMELEC)

14. Enlist non-partisan groups to assist.

IV. VOTERS: QUALIFICATIONS AND REGISTRATION Qualifications for Suffrage 1. Filipino citizenship – it may be by birth or naturalization. 2. 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. 3. 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 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. No Loss of Residency. Any person who temporarily resides in another city, municipality or country solely by reason of his 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 be deemed to have lost his original residence. (Sec. 9, RA 8189) Requisites for New Domicile by Choice. In election cases, the Supreme Court treats domicile 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) The place where a party actually or constructively has his permanent home, where he, no matter where he may be 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 fact that a person is registered as a voter in one district is not proof that he is not domiciled in another district. Thus, 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 Overseas Absentee Voting Act of 2003 In compliance with the constitutional mandate enunciated in Section 2, Article V of the Constitution, Congress enacted RA 9189 – Overseas Absentee Voting Act of 2003 – providing for a system of absentee voting for qualified citizens of the Philippines abroad. The law entitles any citizen of the Philippines, at least 18 years old on the day of the election and registered as an absentee voter, or who is certified as registered voter under the provisions of the Voter’s Registration Act of 1996, to vote as absentee voter. Also, under the same law, the following are disqualified as absentee voters: 1. those who have lost their Philippine citizenship by naturalization in another country; 2. those who have renounced their Philippine citizenship;

3. 4. 5. 6.

those who have been convicted of offenses punishable by no less than one year of imprisonment; those who have been found guilty of disloyalty under the Revised Penal Code; those declared insane or incompetent by competent authority; and immigrants or permanent residents, unless they execute upon registration an affidavit prepared by the COMELEC declaring that they shall resume actual physical residence in the Philippines not later than three years from the approval of their registration as absentee voters. VOTERS: QUALIFICATIONS AND REGISTRATION Exception to residence requirement. In Macalintal vs. COMELEC, GR No. 157013, July 11, 2003, the Supreme Court ruled that Section 5(d) of RA 9189 does not violate the residency requirement in Section 1 of Article V of the Constitution. Stating that it is an exception to the residency requirement. The Constitution’s framers intended to enfranchise as much as possible all Filipino citizens abroad who have not abandoned their domicile of origin. Congress enacted the law prescribing a system of overseas absentee voting in compliance with the constitutional mandate. Such mandate expressly requires that Congress provide a system of absentee voting that necessarily presupposes that the “qualified citizen of the Philippines abroad” is not physically present in the country. Under RA 9189, an immigrant may still be considered a “qualified citizen of the Philippines abroad” upon fulfillment of the requirement of registration under the new law for the purpose of exercising their right of suffrage. The qualified Filipino abroad who executed the affidavit is deemed to have retained his domicile in the Philippines. He is presumed not to have lost his domicile by his physical absence from this country. His having become an immigrant does not necessarily imply an abandonment of his intention to return to his domicile of origin, the Philippines. He must be given the opportunity to express that he has not actually abandoned his domicile in the Philippines by executing the affidavit. The execution of the affidavit is not the enabling or enfranchising act. The affidavit is not only proof of the intention of the immigrant or permanent resident to go back and resume residency in the Philippines, but more significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of origin. Section 5(d) does not only require an affidavit or a promise to “ resume actual physical permanent residence in the Philippines not later than three years from approval of his registration,” the Filipino abroad must also declare that they have not applied for citizenship in another country. RA 9225 – Citizenship Retention and Re-acquisition Act of 2003 Another exception to residence requirement. In Nicolas-Lewis vs. COMELEC, GR No. 162759, August 4, 2006, the Supreme Court ruled that those who retain or reacquire Philippine citizenship under RA 9225, may exercise the right to vote under the system of absentee voting in RA 8189. In effect, they are likewise exempt from the residency requirements prescribed under Article V. Section 1 of the Constitution.

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

2. Any person adjudged by 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. 4. Under RA 9225, or Citizenship Retention and Re-Acquisition Act of 2003, the right to vote in the Philippines cannot be exercised by, or extended to those who are candidates for or are occupying any public office in the country of which they are naturalized citizens; and /or are in active service as commissioned or non-commissioned officers in the armed forces of the country in which they are naturalized citizens.

Removal of disqualification for conviction 1. Plenary pardon 2. Amnesty 3. Lapse of 5 years after service of sentence (Sec. 111, RA 8189)

VOTERS: QUALIFICATIONS AND REGISTRATION System of Continuing Registration Under Sec. 8 of RA 8189 – Voters Registration Act of 1996, the personal filing of application of registration of voters shall be conducted daily in the office of the Election Officer 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. The same law also prohibits registration more than once and if registrant has transferred residence, only an application for transfer of registration is needed. 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 rights embodied in the fundamental law, ought to be exercised within the proper bounds and framework of the Constitution and must properly yield to pertinent laws skillfully enacted by the Legislature. (AKBAYAN –Youth et al. vs. COMELEC GR No. 147066, March 26, 2001) The right of suffrage ardently invoked by herein petitioners, is not at all absolute…the exercise of suffrage, as in the enjoyment of all other rights is subject to existing substantive and procedural requirements embodied in our Constitution, statute books and other repositories of law. (Ibid.) The determination of whether or not the conduct of special registration of voter is feasible, possible or practical within the remaining period before the actual date of election, involves the exercise of discretion and thus, cannot be controlled by mandamus. (Ibid.) Illiterate and Disabled Voters

The Election Officer shall place an illiterate person under oath, ask him the questions, and record his answers. The form shall then be subscribed by the illiterate person. An application of a physically disabled voter may be prepared by a relative within the fourth degree of affinity or consanguinity, the Election Officer, or any member of the accredited citizens arm. (Sec. 14, RA 8189) Inclusion and Exclusion Cases 1. 1. 2. 3.

Jurisdiction Municipal or Metropolitan Trial Court – original and exclusive jurisdiction Regional Trial Court – appellate jurisdiction (5 days) (Sec. 33, RA 8189) 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. Petitioner 1. Inclusion 1. Private person whose application was disapproved by the Election Registration Board or whose name was stricken out from the list of voters. (Sec. 34, RA 8189) 2. COMELEC [Sec. 2(6), Art. IX-C, PC]

1. 2. 3. 4.

VOTERS: QUALIFICATIONS AND REGISTRATION Exclusion Any registered voter in city or municipality Representative of political party Election Officer (Sec. 39, RA 8189) COMELEC [Sec. 2(6), Art. IX-C, PC]

3. Period for Filing 1. Inclusion – Any day except 105 days before regular election or 75 days before a special election. (Sec. 24, RA 8189) 2. Exclusion – Any time except 100 days before a regular election or 65 days before a special election. (Sec. 35 RA 8189) 4. Procedure 1. Petition for exclusion shall be sworn. (Sec. 35, RA 8189) 2. Each petition shall refer only to only one precinct. (Sec. 32©, RA 8189) 3. Notice

1. 1. 2. 1. 2.

Parties to be notified Inclusion – Election Registration Board Exclusion – Election Registration Board Challenged voters [Sec. 32(b), RA 8189]

2. Manner Notice stating the place day and hour of hearing shall be served through any of the following means: 1. Registered mail 2. Personal delivery 3. Leaving copy in possession of person of sufficient discretion in residence. 4. 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) d. Any voter, candidate or political party affected may intervene. (Sec. 32©, RA 8189) e. Non-appearance is prima facie evidence the registered voter is fictitious (Sec. 32 (f), RA 8189) f. Decision cannot be rendered on stipulation of facts. (Sec. 32(f), RA 8189) 7. No motion for reconsideration is allowed. (Sec. 33, RA 8189) Respondent judge’s issuance of the controversial order directing inclusion in the voters’ list of petitioners without hearing and beyond the ten-day period constitute gross ignorance of the law. His failure to observe the requirements of the Omnibus Election Code is inexcusable. (Mercado vs. Judge Dysangco, 385 SCRA 327)

VOTERS: QUALIFICATIONS AND REGISTRATION Annulment of List of Voters 1. Upon verified complaint of any voter, election officer or registered political party or motu propio, the COMELEC my annul a list of voters 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 is statistically improbable. 2. No list of voters shall be annulled within 60 days before an election. (Sec. 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 and 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 conducts its 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 the use in the election. Book of voters refers to the compilation of all registration records in a precinct.

V. 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. 2. 3. 4.

Religious sects Those which seeks to achieve their goals through unlawful means Those which refuse to adhere to the Constitution 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] This kind of party system is classified as multi-party system. COMELEC and Court Jurisdiction Over Political Parties

A political party has the right to identify the people who constitute the association and to select a standard bearer who represents the party’s ideologies and preference. Political parties are generally free to conduct their internal affairs free from judicial supervision; this common common-law principle of judicial restraint, rooted in the constitutionally protected right of free association, serves the public interest by allowing the political processes to operate without undue interference. (LDP vs. COMELEC, GR No. 161265, February 24, 2004, citing Sinaca vs. Mula, 373 SCRA 896) However, the COMELEC’s constitutional power to register and regulate political parties includes the ascertainment of the identity of the political party and its legitimate officers responsible for its acts and the resolution of such controversies where one party appears to be divided into two wings under separate leaders each claiming to be the president of the entire party. (LDP vs. COMELEC, GR No. 161265, February 24, 2004, citing Kalaw vs. COMELEC, GR Nos. 86177-78, August 31, 1989)

POLITICAL PARTIES AND PARTY-LIST SYSTEM Where there is no controlling statute or clear legal right involved, the court will not assume jurisdiction to determine factional controversies within a political party, but will leave the matter for determination by proper tribunals of the party itself or by the electors at polls. Similarly, in the absence of specific constitutional or legislative regulations defining how nominations are to be made, or prohibiting nominations from being made in certain ways, political parties may handle such affairs, including nominations, in such manner as party rules may establish. Conversely, the Court will have to assume jurisdiction to determine factional controversies within a political party where a controlling statute or clear legal right is involved. Election laws accords special treatment to political parties, to wit:

1. the dominant majority party and the dominant minority party are entitled to a copy of the election returns; 2. the six accredited major political parties may nominate the principal watchers to be designated by the COMELEC – the two principal watchers representing the ruling coalition and the dominant opposition coalition in a precinct shall affix their signatures and thumbmarks on the election returns for that precinct; 3. three of the six accredited major political parties are entitled to receive copies of the certificate of canvass; 4. registered political parties whose candidates obtained at least ten percent of the total votes cast in the next preceding election shall each have a watcher in the procurement and watermarking of papers to be used in the printing of election returns and ballots, and 5. a candidate and his political party are authorized to spend more per voter than candidate without political party. (LDP vs. COMELEC, GR No. 161265, February 24, 2004)

As an incident to its enforcement powers, the Supreme Court ruled that COMELEC has the power to inquire into which party officer has the authority to sign and endorse certificates of candidacy of the party’s nominees. And to resolve this simple issue, the COMELEC, need only to turn to the Party Constitution. By granting the petition under the guise of legal equity, the COMELEC, acted whimsically and capriciously, thus Certiorari lies against it. By according both wings

representatives in the election committees, the COMELEC has eroded the significance of political parties and effectively divided the opposition. By splitting copies of the election returns between the two factions, the COMELEC, has fractured both wings. The electoral process envisions one candidate from a political party for each position, and disunity and discord amongst members of a political party should not be allowed to create a mockery thereof. The admonition against mocking the electoral process not only applies to political parties but with greater force to the COMELEC. (LDP vs. COMELEC, GR No. 161265, February 24, 2004, citing Recabo vs. COMELEC, 308 SCRA 793) The policy towards a free and open party system envisions a system that shall “evolve according to the free choice of the people” not one molded and whittled by the COMELEC. (Ibid.)

Party-List System 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. (RA 7941 – The Party-List System Act) 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)

POLITICAL PARTIES AND PARTY-LIST SYSTEM Party-list system is designed to insure representation in the House of Representatives of the marginalized and underrepresented sectors 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. Registration; Participation in the Party-List System Any organized group of persons may register as a party, organization or coalition for purposes of the party-list system by filing with the COMELEC not later than 90 days before the election a petition verified by its president or secretary stating its desire to participate in the party-list system as a national, regional or sectoral party or organization or a coalition of such parties or organizations. Any party, organization or coalition already registered with the COMELEC need not register anew, but shall file with the COMELEC not later than 90 days before the election a manifestation of its desire to participate in the party-list system.

The 90-day period stated in Section 5 of RA 7941 refers to the prohibitive period beyond which petitions for registration by parties, organizations or coalitions under the party-list system should no longer be filed nor entertained – it is simply the minimum count back period which is not subject to reduction since it is prescribed by law, but it is susceptible to protraction on account of

administrative necessities and other exigencies perceived by the poll body. (Aklat Asosasyon Para sa Kaunlaran ng Lipunan at Adhikain Para sa Tao, Inc. vs. COMELEC, 427 SCRA 712) Nomination of party-list representatives Each registered party, organization or coalition shall submit to the COMELEC not later than 45 days before the election a list of names, not less than five, from which party-list representatives shall be chosen in case it obtains the required number of votes A person may be nominated in one list only. Only persons who have given their consent in writing may be named in the list. The list shall not include any candidate for any elective office or a person who has lost his bid for an elective office in the immediately preceding election. No change shall be allowed after the list shall have been submitted to the COMELEC except in cases where the nominee dies, or withdraws in writing his nomination, becomes incapacitated, in which case the name of the substitute nominee shall be placed last in the list.

Duty to Disclose Names of Nominees. In BA-RA 7941 vs. COMELEC, GR Nos. 177271 and 177314, May 4, 2007, it was held that the COMELEC had the constitutional duty to disclose and release the names of the nominees of the party-list groups. Section 7, Article III of the Constitution – the right of the people to information on matters of public concern and Section 28 of Article II – the State adopts and implement a policy of full disclosure of all its transactions involving public interests – served as basis of the Court in ordering the poll body to divulge the said names. The Court also ruled that no security or like concerns is involved in the disclosure of the names of the nominees of the party-list groups in question. The prohibition imposed on the COMELEC not to disclose the names under Section 7 of RA 9471 is limited in scope and duration as it extends only to the certified list which the same provision requires to be posted in the polling places on election day and that to further stretch the coverage of the prohibition to the absolute is to read into the law something that it is not intended. Guidelines for screening party list participants 1. The political party, sector, organization must factually and truly represent the marginalized and underrepresented groups identified in Sec. 5 of RA 7941. Majority of its membership should belong to the marginalized and underrepresented. It must show through its constitution, articles of incorporation, by-laws, history, platform of government and track record that it represents and seeks to uplift marginalized and underrepresented sectors identified in Section 5 of RA 7941. (Aklat vs. COMELEC, supra) 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 the 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, private 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 their 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 an adjunct of, or a project organized or an entity funded or assisted by, the government; 6. Not only the candidate party or organization must represent marginalized and underrepresented sectors, so also must its nominees; under Section 9 of RA 7941,it is ot necessary that the party-list organization’s nominee “wallow in poverty, desitution and infirmity” as there is nofinancial status required by the law; 7. 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. Qualifications of Party-List Nominees 1. 2. 3. 4. 5.

Natural-born citizen of the Philippines A registered voter A resident of the Philippines for at least one year immediately preceding the day of election Able to read and write A bona fide member of the party organization which he seeks to represent for at least 90 days preceding the day of election; and 6. At least 25 years of age on the day of election. For youth sector, he must at least 25 years of age but not more than 30 years of age on the day of 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.

Manner of Voting

Every voter shall be entitled to two votes: the first is a vote for the candidate for members of the House of Representatives in his legislative district, and the second, a vote for the party, organization or coalition he wants represented in the House of Representatives; provided that a vote cast for a party, sectoral organization or coalition not entitled to be voted for shall not be counted. Number of Party-List Representatives The party-list representatives shall constitute 20% of the total number of the House of Representatives including those of under the party-list. For purposes of the May 1998 elections, the first five major political parties on the basis of party representation in the House of Representatives at the start of the Tenth Congress of the Philippines shall not be entitled to representation in the party-list system. In BANAT vs. COMELEC, the Court reiterated a previous ruling which disallowed major political parties from participating in the party-list election so as not to suffocate the voice of the marginalized, frustrate their sovereignty and betrya the democratic spirit of the Constitution. Choosing Party-List Representatives Party-lists representatives are proclaimed by the COMELEC based on the list of names submitted by the respective parties, organization or coalitions to the COMELEC according to their ranking in the list. Effect of Change of Affiliation Any elected party-list representative who changes his political party or sectoral affiliation during his term of office shall forfeit his seat; provided that if he changes his political party or sectoral affiliation within 6 months before an election, he shall not be eligible for nomination as party-list representative under his new party or organization. Vacancy In case f vacancy in the seats reserved for party-list representatives, the vacancy shall be automatically filled by the next representative from the list of nominees in the order submitted to the COMELEC by the same party, organization or coalition, who shall serve for the unexpired term. If the list is exhausted, the party’ organization or coalition concerned shall submit additional nominees. Term of Office; Rights Party-list representatives shall be elected for a term of three years, and shall be entitled to the same salaries and emoluments as regular members of the House of Representatives.

The Four Parameters of the Filipino Party-List System

1. the twenty percent allocation – the combined number of all party-list congressmen shall not exceed twenty (20) percent of the total membership of the House of Representatives, including those elected under party list; 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, as may be provided by law, will necessarily result in a corresponding increase in the number of party-list seats. In Veterans, the Court considered the 20 percent share merely as a ceiling and not a mandatory prescription. In the BANAT decision, however, considered the 20-percent share as mandatory. 2. the two percent threshold – only political parties who obtained a minimum of 2% of the total valid votes cast for party-list shall be “qualified” to have a seat in the House of Representatives and entitled to party-list representation. In Veterans, only those who obtained at least 2-percent of the total votes cast could participate in the proportional distribution under the fourth element below. In the BANAT decision, the Court upheld the 2-percent threshold ushered by the “first clause” of Sec 11 (b) of RA 7941 insofar as it allowed the grant of an initial one seat to a party-list that garnered, to quote the law, “at least two percent of the total votes cast for the party-list system.” However, it struck down as unconstitutional the “second clause” of the same section that states, “those garnering more than two percent of the votes shall be entitled be entitled to additional seats in proportion to theor total number of votes” because this clause “makes it mathematically impossible to achieve the maximum number of available party-list seats when the number of available party-list seats exceeds 50.” With that decision, the 20-percent could all be filled. To fill up the additional seats, the Court awarded slots to those that secured less than two percent of the total votes cast. (3) the three seat limit – obtaining absolute proportional representation is restricted by the threeseat-per party limit so that each qualified party, regardless of number of votes it actually obtained, is entitled to a maximum of three seats, one “qualifying” and two additional slots; and

(4) proportional representation – the additional seats which a qualified party is entitled to shall be computed “in proportion to their total number of votes.” Procedure in Allocating Seats Old Procedure. In determining the allocation of seats , the following procedure shall be observed: 1. the parties, organizations and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections.

2. the parties, organizations and coalition receiving at least 2% of the total votes cast for the partylist system shall be entitled to one seat each; provided that those garnering more than 2% of the votes shall be entitled to additional seats in proportion to their total number of votes; provided, finally that each party, organization or coalition shall be entitled to not more than three (3) seats.

Panganiban Formula: The First-Party Rule. In Veterans Federation Party vs. COMELEC, GR No.136781, October 6, 2000, the Supreme Court ruled that the formula for computing the number of seats to which the first party (one garnering the highest number of votes) is entitled is as follows: Number of votes of the first party Proportion of votes of ______________ = first party relative to total votes for the party-list system Total vote for party-list system

If the proportion of votes received by the first party without rounding it off is equal at least to six percent of the total valid votes cast fort all party-list groups, then the first party shall then be entitled to two additional seats or a total of three seats overall. If the proportion of votes without the rounding off is equal to or greater than four percent, but less than six percent, then the first party shall have one additional or a total of two seats. And if the proportion is less than four percent, then the first party shall not be entitled to any additional seat.

For the other qualified parties (those who reached the required two percent mark) which are entitled to additional seats, the formula, based on proportional representation, is written as follows:

Number of votes of Additional seats concerned party additional for concerned = _______________ X seats allocated party to first party Number of votes of first party Under the formula adopted by the COMELEC from the Supreme Court ruling in Veterans case, a winning party-list group would be entitled to additional seats based on the number of votes received by the party-list group with the most votes (known as first party). Proportional representation is the touchstone to the ascertainment of extra seats. The number of additional seats that a winning party-list group could get will be determined by dividing the number of its votes with the number of votes of the No. 1 party-list group and then multiplying this with the number of seats the No. 1 party-list group was entitled to.

The votes obtained by disqualified party-list candidates are not to be counted in determining the total votes cast for the party list system. The votes obtained should be deducted from the canvass of the total number of votes cast during the May 14, 2001 election. Consequently, following Section 12 of RA 7941, a new tally and ranking of qualified party-list candidates is now in order, according to the percentage of votes they obtained as compared with the total valid votes cast nationwide. (Ang Bagong Bayani –OFW Party vs. COMELEC, 404 SCRA 719) Section 10 of RA

7941 expressly provides that the votes cast for a party, a sectoral organization or a coalition “not entitled to be voted shall not be counted.” Thus, the ruling in Labo, that the votes cast for an ineligible or disqualified candidates cannot be considered “stray,” cannot be applied to the partylist system. (Partido ng Magagawa vs. COMELEC, 484 SCRA 67), In Partido ng Magagawa vs. COMELEC, supra, it was also held that the COMELEC has a ministerial duty to apply the formula as decided by the Supreme Court in the Veteran’s case after interpreting the existing law on party-list representation. Again, in CIBAC vs. COMELEC, GR No.172103, April 13, 2007, the Court ordered the COMELEC to strictly apply the Veterans formula in determining the entitlement of qualified party-list groups to additional seats in the party-list system. Likewise, the Court made a comparison between its ruling in Veterans and Ang Bagong Bayani cases. Thus, in Veterans, the multiplier was the number of additional seats allocated to the First Party, while in Ang Bagong Bayani, the multiplier “allotted seats for the First Party” was applied. Moreover, in Veterans, the “additional seats allocated to the First Party” prescribed in the formula pertains to a multiplier of two (2) seats, while in Ang Bagong Bayani, the formula can mean a multiplier of maximum of three (3) seats since the First Party can garner a maximum of three (3) seats. The Court further explained that the Ang Bagong Bayani formula has not modified the Veterans formula. Thus, Supreme Court Resolution dated November 20, 2003, the Court in granting BUHAY an additional seat, meant to apply it on that specific case alone, not being a precedent – pro hac vice (for this one particular occasion) and that such Resolution cannot be applied as precedent to future cases. The Court further clarified that the simplified 2-4-6 formula (one seat for each group that has reached 2 percent, 2 seats for 4 percent, and 3 seats for 6 percent) has been abandoned and that the COMELEC should use and adhere to the Veterans formula. The Court also reiterated its ruling in the Veterans case that in order to be entitled to one additional seat, an exact whole number is necessary, without rounding off the figure. The New Modified Procedure. In the BANAT case, the Court discarded the formula formulated by retired Justice Panganiban and replaced it with a new one for the allocation of party-list seats. The new equation provided by the Court follows the following prescription: 1. The parties, organizations and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the election; 2. Such parties, organizations, and coalitions receiving at least 2 percent of the total votes cast for the party-list system shall be entitled to one guaranteed (qualifying) seat each; 3. Those garnering sufficient number of votes, according to the ranking in the number 1 rule, shallbe entitled to additional seats in proportion to their total number of votes until the additional seats are allocated;

4. Each party, organization, or coalition shall be entitled to not more than three seats. In computing the additional seats, the Court required the COMELEC to first compute the percentage of the votes garnered by each party-list candidate. This is achieved by dividing the number of votes cast for each party by 15,950,900 (the total number of votes cast in the 2007 partylist elections).

The Court then required the COMELEC to undergo a second round of seat allocations. The guaranteed (qualifying) seats shall no longer be included because thay have already been allocated, at one seat each, to every 2-percenter. Thus, the remaining available seats for allocation as “additional seats” are the maximum seats reserved under the party-list system. First, the percentage is multiplied by the remaining available seats (38), which represents the difference between the 55 maximum seats reserved uner the party-list system and the 17 guaranteed seats of two-percenters (the winning party-list who received 2 percent of the total votes cast).

VI.CANDIDATES:QUALIFICATIONS AND DISQUALIFICATIONS

Summary of Qualifications for National & Local Elective Officials

Elective Official

Minimum Age on the Day of Election

Citizenship

Residence Immediately Preceding the Day of Election

40 yrs. old

natural-born Filipino

10 yrs. in the Phil.

President & Vice President

natural-born Filipino

Senator 35 yrs. old

2 yrs. in the Phil.

natural-born Filipino District Rep

25 yrs. old

1 yr. in the Phil. & district

1 yr. in the Phil.

Party-List Rep; If youth sector

25 yrs. old 25 to 30 yrs. old

Prov. Gov & VG, Mayor & VM of HUCCs & Member SPn & SPd 23 yrs. old

natural-born Filipino

either natural-born or naturalized Filipino

1 yr. in the Phil. & political unit/district

1 yr. in the Phil. & political unit/district

21 yrs. old either natural-born or naturalized Filipino

Mayor & VM of ICCs, CCs & Ms

either natural-born or naturalized Filipino

Member of SPs & SBs 18 yrs. old

1 yr. in the Phil. & political unit/district

Punong Barangay & Member SBrgy

18 yrs. old

Sanggunian Kabataan

either natural-born or naturalized Filipino

either natural-born or naturalized Filipino

1 yr. in the Phil. & political unit.

1 yr. in the Phil. & political unit

15 to 17 yrs. old

Qualifications of Candidates The common qualifications required of all elective officials are age, citizenship, residence, mere ability to read and write (Filipino or any other local language and dialect, for local elective officials) and registration as a voter.

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 Labo vs. COMELEC, 176 SCRA 1) It then becomes a ground for disqualification and eventual removal from office. Age Qualification The required age qualification must be possessed by any candidate, national or local, on the day of election. Citizenship Requirement

For national elective officials, natural-born Filipino citizenship is required. For local elective officials the Local Government Code requires that they must be citizens of the Philippines – either natural born or naturalized. Repatriation. 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) In Altarejos vs. COMELEC, 441 SCRA 655, the Supreme Court’s reiterated its ruling in Frivaldo, 257 SCRA 727, that repatriation retroacts to the date of filing of one’s application for repatriation. Accordingly, petitioner’s repatriation retroacted to the date he filed his application in 1997 and was, therefore, qualified to run for mayoralty position in the government in May 2004 elections. Procedural requirement. Section 5, Par. 2 of RA 9225 – Citizenship Retention and Reacquisition Act of 2003 provides that those seeking elective public office shall meet the qualifications required by the Constitution and existing laws and, at the time of filing of certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer oath. In upholding the ruling of the COMELEC that FPJ is a natural-born Filipino citizen, the Supreme Court, in the case of Fornier vs. COMELEC, GR No. 1618244, March 3, 2004, ruled that the resolution of the issue depended on whether or not his father, Allan F. Poe, would have himself been a Filipino citizen and whether or not his alleged illegitimacy prevents him form taking after the Filipino citizenship of his putative father. The Supreme Court, thus ruled: “xxx. Any conclusion on the Filipino citizenship of Lorenzo Poe could only be drawn from the presumption that having died in 1954 at 84 years old, Lorenzo would have been born sometime in the year 1870, when the Philippines was under Spanish rule, and that San Carlos, Pangasinan, his place of residence upon his death in 1954, in the absence of any other evidence, could have well been his place of residence before death, such that Lorenzo Poe would have benefited from the “en masse Filipinization” that the Philippine Bill had effected in 1902. That citizenship (of Lorenzo Poe), if acquired, would thereby extend to his son, Allan F. Poe, father of respondent FPJ. The 1935 Constitution, during which regime respondent FPJ has seen first light, confers citizenship to all persons whose fathers are Filipino citizens regardless of whether such children are legitimate or illegitimate.”

Residence Qualification; Definition; Rationale

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. (Domino vs. COMELEC 310 SCRA 546) In election cases, the Supreme Court treats domicile 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) The place where a party actually or constructively has his permanent home, where he, no matter where he may be 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. (Perez vs. COMELEC, 317 SCRA 641) The term “residence” as used in the election law, imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. “Domicile” denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. (Papandayan, Jr. vs. COMELEC, 382 SCRA 133) The term ‘residence” is to be understood not in its common acceptation as referring to “dwelling” or “habitation,” but rather to “domicile” or legal residence, that is, the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at a given time, eventually intends to return and remains (animus manendi) A domicile of origin is acquired by every person at birth. It is usually the place where the child’s parents reside until the same is abandoned by acquisition of new domicile (domicile of origin). (Coquilla vs. COMELEC, 385 SCRA 607) Rationale. 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. (Torayno vs. COMELEC, 337 SCRA 574)

The residence requirement is rooted in the desire that officials of districts or localities be 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 rationale for the residence requirement. (Ibid.) Hence, in Torayno, the Supreme Court upheld the residency qualification of Governor Emano, inasmuch as he has proven that he, together with his family had actually resided in a house he bought in 1973 in Cagayan de Oro City; had actually held office there during his three terms as provincial governor of Misamis Oriental, the provincial capitol being located therein; and had registered as voter in the city during the period required by law – he could not be deemed “a stranger or newcomer” when he ran and was voted as city mayor.

Petitioners put much emphasis on the fact that Cagayan de Oro City is a highly urbanized city whose voters cannot participate in the provincial elections. Such political subdivisions and voting restrictions, however, are simply for the purpose of parity representation. 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. (Ibid.) Domicile of Origin. 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, the 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 of origin and merely gained a new home, not a domicilium necessariun; 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.

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 if 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 Concepcion, Tarlac as birthplace. Thus, his domicile of origin was Concepcion, Tarlac, and his bare assertion of transfer of domicile from Tarlac to Makati is hardly supported by the facts of the case. Repatriation and Residency. In Coquilla vs. COMELEC, 385 SCRA 607, it was held that once a Filipino loses his citizenship or becomes a citizen of another country, he also loses his domicile of origin or residence in the Philippines. Should he reacquire his citizenship, it would carry with it the reacquisition of his residency in the Philippines. However, the period of his reacquired residency shall be counted from the date he reacquired his Philippine citizenship or actually took his oath of allegiance as a repatriated Filipino citizen. Property Ownership and Residency. In Dumpit-Michelena vs. Boado, 475 SCRA 290, the Supreme Court ruled that property ownership in not indicia of the right to vote or be voted for an

office. A beach house is at most a place of temporary relaxation. It can hardly be considered a place of residence. Further, domicile is not easily lost. To successfully effect a change of domicile, there must be concurrence of the following requirements: (1) an actual removal or an actual change of domicile; (2) a bona fide intention of abandoning the former place of residence and establishing a new one; and (3) acts which corresponds with the purpose. Without clear and positive proofs of the concurrence of those 3 requirements, the domicile of origin continues. To effect change, there must be animus manendi coupled with animus revertendi. The intent to remain in the new domicile of choice must be for indefinite period of time, the change of residence must be voluntary, and the residence at the place chosen for the new domicile must be actual. The Supreme Court agreed with the Second Division of the COMELEC that Dumpit-Michelena failed to establish that she has abandoned her former domicile. Grounds for Disqualifications 1. Under the Omnibus Election Code 1. Grounds i. Any person declared by competent authority insane or incompetent ii. 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) The Supreme Court made no pronouncement in Lim vs. People, 340 SCRA 497 which reiterated the ruling in Vaca vs. CA, 298 SCRA 565, that with the deletion of the prison sentence for violation of BP 22, the offense no longer involves moral turpitude. In People vs. Tuanda, 181 SCRA 692, the Supreme Court did not make a distinction whether the offender is a lawyer or a non-lawyer, nor did it declare that such offense constitutes moral turpitude when committed by a member of the Bar but not so when committed by a non-member. (Villaber vs. COMELEC, 369 SCRA 126) 3. A permanent resident to or immigrant to foreign country unless he waives such status. (Sec. 68, BP 881)

2. Removal i. Insanity or incompetence – declaration of removal by competent authority ii. Conviction 1. Plenary pardon 2. Amnesty 3. Lapse of 5 years after service of sentence (Sec. 12, BP 881)

2. Under the Local Government Code – Sec. 40 1. 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.

Direct bribery is a crime involving moral turpitude. The Local Government Code is a codified set of laws that specifically applies to local government units. Section 40 thereof specifically and definitely provides for disqualifications of candidates for elective local positions. It is applicable to them only. On the other hand, Section 12 of the Omnibus Election Code speaks of disqualifications of candidates for any public office. It deals with the election of all public officers. Thus, Section 40 of the Local Government Code insofar as it governs the disqualifications of candidates for local positions, assumes the nature of a special law which ought to prevail.(Magno vs. COMELEC 390 SCRA 495) In Moreno vs. COMELEC, GR No.168550, August 10, 2006, the Supreme Court ruled that those who have not served their sentence by reason of the grant of probation are not disqualified from running for local elective office because the two-year period of ineligibility does not even begin to run. The grant of probation merely suspends the execution of the 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)However, if dual citizenship is voluntarily acquired pursuant to RA 9225, The Dual Citizenship Law, the same can be a ground for disqualification to the right of suffrage. e. Fugitives from justice in criminal or non-political cases.

The term includes not only those who flee after conviction to avoid punishment, but likewise who, after being charged, flee to avoid prosecution. (Marquez vs. COMELEC, 243 SCRA 538) f. Permanent residents in foreign country or those who have the right to reside abroad and continue to avail of it. A Filipino citizens’ immigration to a foreign country constitutes an abandonment of his domicile and residence in the Philippines. In other words, the acquisition of a permanent residency status is a foreign country constitutes a renunciation of the status as a resident of the Philippines. (Caasi vs. CA, 191 SCRA 229)

The act of a person surrendering her greencard to the Immigration and Naturalization Service of the US Embassy is clear indication of her intention to abandon her US residency. (Gayo vs. Verceles, 452 SCRA 504) When the evidence of the alleged lack of residence qualification is weak or inconclusive and it clearly appears that the purpose of the law would not be thwarted by upholding the right to the office, the will of the electorate should be respected. In this case, considering the purpose of the residency requirement, i.e., to ensure that the person elected is familiar with the needs and problems of his constituency, there can be no doubt that private respondent is qualified. (Gayo vs. Verceles, citing Perez) g. The insane or feeble-minded. h. Three consecutive terms limit Assumption by Succession. 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, 295 SCRA 157 reiterated in Adormeo vs. COMELEC GR No.147927, February 4, 2002) 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. (Ibid. Latasa vs. COMELEC, 417 SCRA 574 and Ong vs. Alegre, 479 SCRA 473) Involuntary Severance from Office. 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) Exception. But in Ong vs. Alegre, 479 SCRA 473, the Supreme Court held that Ong’s assumption as mayor of San Vicente, Camarines Sur from July 1, 1998 to June 30, 2001, constitutes “service of full term” and should be counted as full term served in contemplation of the three-term limit prescribed by the Constitution. While Ong’s opponent “won” in an election protest in the 1998 mayoralty race, and therefore was the legally elected mayor, that disposition was without practical and legal use and values, having been promulgated after the term of the contested office has expired. Ong’s contention that he was only a presumptive winner in the 1998 mayoralty derby as his proclamation was under protest did not make him less than a duly elected mayor. His proclamation by the Municipal Board of Canvassers as duly elected mayor in 1998 mayoralty election coupled by his assumption of office and his continuous exercise of the functions thereof from the start to finish of the term, should be legally be taken as service for a full term in contemplation of the three-term rule.

Conversion of a Municipality to a New Component City. While a new component city which was converted from a municipality acquires a new corporate existence separate and distinct from that

of the municipality, this does not mean however, that for the purpose of applying the constitutional provision on term limits, the office of the municipal mayor would now be construed as a different local government post as that of the office of the city mayor. Accordingly, the municipal mayor is barred from running for city mayor under the three-term limit rule.(Latasa vs. COMELEC, 417 SCRA 574) Eligibility in a Recall Election. Section 43 of RA 7160 provides that no local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official was elected. After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent election is no longer an immediate reelection after three consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of service. (Socrates vs. COMELEC, 2002, 391 SCRA 457) A necessary consequence of the interruption of service is the start of a new term following the interruption.. An official elected in recall election serves the unexpired term of the recalled official. This unexpired term is in itself one term for purposes of counting the three-term limit. A local official who serves a recall term should know that the recall term is in itself one term although less than three years. This is the inherent limitation he takes by running and winning in the recall election. (Ibid.)

3. Under the Revised Administrative Code – Municipal Office a. Ecclesiastics (Pamil vs. Teleron, 56 SCRA 413) b. Persons receiving compensation from provincial or municipal funds c. Contractors for public works of the municipality 4. Under the Lone candidate Law – RA 8295 1. Any elective official who has resigned from his office by accepting an appointive office or for whatever reason which he previously occupied but has caused to become vacant due to his resignation; and 2. 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 disadvantage 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. 5. Under RA 9225 – Citizenship Retention and Re-acquisition Act of 2003 Section 5, Paragraph 5 of RA 9225, provides that the right to be elected and appointed to any public office cannot be exercised by, or extended to those who: 1. are candidates or are occupying any public office in the country in which they are naturalized citizens, and/or 2. are in active service as commissioned or non-commissioned officers in the armed forces of the country which they are naturalized citizens.

Remedy. The remedy available to remove the above-cited disqualification is for the dual citizen to make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer oath under Sec. 5 Par. 2 of RA 9225. Under Section 36 of RA 9165 – Comprehensive Dangerous Drugs Act of 2002,all candidates for public office whether appointed or elected both in the national or local government shall be subjected to undergo mandatory drug testing. This is not an additional qualification for public office but merely a requirement that must be complied with before one can assume a public office. —o0o—

VII. CERTIFICATE OF CANDIDACY Certificate of Candidacy No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed by the Omnibus Election Code. 1. Purpose of Filing A certificate of candidacy is in the nature of a formal manifestation to the whole world of the candidate’s political creed or lack of political creed.(Sinaca vs. Mula, 315 SCRA 266) The evident purpose of the law in requiring the filing of certificate of candidacy and in fixing the time limit therefor 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 cast. For is the law did not confine the choice or election by the voters 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)

2. Place and Period of Filing 1. For President, Vice President and Senators – main office of the COMELEC in Manila, 5 copies, not later than 90 days before date of election. 2. For Members of the House of Representatives: 1. Provincial legislative districts– Provincial Election Supervisor of the province concerned 2. NCR legislative districts – Regional COMELEC Director c. Legislative districts in cities outside NCR – City Election registrar concerned 3. For provincial offices – Provincial Election Supervisor of the province concerned. 4. 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.

Deadline 1. 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) 2. A certificate filed beyond the deadline is not valid. (Gador vs. COMELEC, 95 SCRA 431; Recabo vs. COMELEC, 308 SCRA 793) Forms 1. Oath 1. The certificate must be sworn. (Sec. 73, BP 881) 2. The election of a candidate cannot be annulled because of formal defects in his certificate, such as lack of oath. (De Guzman vs. Board of Canvassers, 48 Phil 211) 2. Name 1. A candidate shall use his baptismal name or, if none, the name registered with the civil registrar, or any other name allowed by law. 2. He may include one nickname or stage name by which he is generally known. 3. 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. (Sec. 74, BP 881)

E. Prohibition against multiple candidacies 1 A person who files a certificate of candidacy for more than one office should not be eligible for any of them. (Sec 73, BP 881) 2. Before the deadline for filing certificates, he may withdraw all except one, declaring under oath the office for which he desires to be eligible and cancel the certificate of candidacy for the other office or offices. (Go vs. COMELEC, GR No. 147741, May 10, 2001)

3. 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) The COMELEC has no discretion to give or not to give due course to a certificate of candidacy. (Cipriano vs. COMELEC, 436 SCRA 45) Exception: Nuisance Candidacy. In denying due course to the certificate of candidacy of a presidential candidate, the Supreme Court held that there is no constitutional right to run for or hold public office and, particularly, to seek the Presidency – what is recognized is merely a privilege subject to limitations imposed by law. The rationale behind the prohibition against nuisance candidates and the disqualification of candidates who have not evinced a bona fide intention to run for office is to divine – the State has a compelling interest to ensure that its electoral exercises are rational, objective and orderly. Inevitably, the greater the number of candidates, the greater the opportunities for logistical confusion not to mention the increased allocation of time and resources in preparation for election- a disorderly election is not merely a textbook example

of inefficiency but a rot that evades faith in our democratic institution. (Pamatong vs. COMELEC, 427 SCRA 96) Effects of Filing 1. 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 employee of a GOCC organized under the Corporation Code (without original charter), since the law makes no distinction. (PNOC-EDC vs. NLRC, 222 SCRA 831) 2. 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. (Section 14, RA 9006, The Fair Election Act, amending Section 67 of BP 881) In Farinas vs. Executive Secretary, 417 SCRA 503 the Supreme Court upheld the constitutionality of Section 14 of RA 9006 which in effect repealed Section 67 of BP 881. 3. Any mass media columnist, commentator, announcer-reporter, on-air correspondent or personality are deemed resigned if so required by their employer. (Sec. 6, subpar. 60, RA 9006) 4. Withdrawal of Certificate of Candidacy 1. 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) 2. 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 of 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, 1988) 5. Substitution of Candidacy – Sec. 77 BP 881; Sec. 12, RA 9006 1. 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 filed with any board of election inspectors in the political subdivision where he is a candidate, or, in case of candidates to be voted for by the entire electorate of the country, with the COMELEC. (Domingo vs. City Board of Canvassers, GR No. 105365, June 2, 1992) 2. 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 of 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)

3. In case of valid substitutions after the official ballot have been printed, the votes cast for the substituted candidates shall be considered as stray 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. (Sec. 12, RA 9006)

4. There is nothing in the Constitution or statute which requires as a 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) 5. 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. (Miranda vs. Abaya, 311 SCRA 617)

6. 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. (Ibid.) 7. While Sec. 78 of the Election Code enumerated the occasions where a candidate may validly substituted, 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. (Ibid.) 7. Where a certificate of candidacy was never cancelled or denied due course by the COMELEC and the same was withdrawn and that COMELEC found that the substitute complied with all the procedural requirements for valid substitution, the latter can validly substitute the former. (Luna vs. COMELEC, 522 SCRA 107) 9. The argument that inasmuch as the barangay election is non-partisan and that there can be no substitution because there is no political party from which to designate the substitute, ignores the purpose of election laws which is to give effect to, rather than frustrate the will of the people. The absence of a specific provision governing substitution of candidates in barangay elections cannot be inferred as a prohibition against said substitution. Such restrictive construction cannot be read into the law where the same is not written. There is more reason to allow the substitution of candidates where no political parties are involved than when political considerations or party affiliations reign, a fact that must have been assumed by law. Election contests involve public interests and technicalities and procedural barriers must yield if they constitute an obstacle to the determination of the true will of the electorate in the choice of their elective officials. (Rulloda vs COMELEC, 395 SCRA 365) I. Cancellation of Certificate of Candidacy

1.The proceeding on the cancellation of a certificate of candidacy does not merely pertain to the administrative functions of the COMELEC. Cancellation proceedings involve the COMELEC’s quasi-judicial function which must first be decided by the COMELEC in division. Hence, the COMELEC en banc acted without jurisdiction when it ordered the cancellation of a candidate’s certificate of candidacy without first referring the case to a division for summary hearing. A summary proceeding does not mean that the COMELEC should throw away the requirements of notice and hearing. The COMELEC should have at least given notice to the candidate to give him the chance to adduce evidence to explain his side in the cancellation proceedings. The COMELEC has deprived the candidate of procedural due process of law when it approved the report of the Law Department without notice and hearing. (Bautista vs. COMELEC, 414 SCRA299) 2. When a candidate files his certificate of candidacy, the COMELEC has a ministerial duty to receive and acknowledge its receipt. The COMELEC may not, by itself, without the proper proceedings, deny due course to or cancel a certificate of candidacy filed in due form. A petition to deny due course to or cancel a certificate of candidacy shall be heard summarily after due notice. The law mandates that the candidates must be notified of the petition against them and should be given the opportunity to present evidence on their behalf. This is the essence of due process.(Luna vs. COMELEC, 522 SCRA 107)

Disqualification of Candidates 1. Nature: Two Aspects Under Section 68, OEC Election offenses under Section 68 have two aspects – the criminal aspect and the electoral aspect. Other election offenses have only the criminal aspect. Because of the electoral aspect of election under Section 68, it can lead to the disqualification of the candidate and if elected, deny him the right to hold office. Once the COMELEC finds that the candidate committed any of the acts under Section 68, he shall be disqualified from continuing as a candidate, or if he has been elected, from holding office. A COMELEC en banc resolution to file the case in court against the candidate is already a finding. (Bagatsing vs. COMELEC, 320 SCRA 817) In Lanot vs. COMELEC, 507 SCRA 114, The Supreme Court further distinguished the nature of the two aspects of disqualification: The electoral aspect of a disqualification case determines whether the offender should be disqualified from being a candidate or from holding office. Proceedings are summary in character and require only clear preponderance of evidence. An erring candidate may be disqualified even without prior determination of probable cause in a preliminary investigation. The electoral aspect may proceed independently of the criminal aspect, and vice versa. The criminal aspect of a disqualification case determines whether there is probable cause to charge a candidate for election offense. The prosecutor is the COMELEC, through its Law Department, which determines whether probable cause exists. If there is probable cause, the COMELEC, through its Law Department, files the criminal information before the proper court. Proceedings before the proper court demand a full-blown hearing and require proof beyond reasonable doubt to convict. A criminal conviction shall result in the disqualification of the offender, which may even include disqualification from holding a future public office.

The two aspects account for the variance of the rules on disposition and resolution cases filed or after before the election. When the disqualification case is filed before the elections, the question of disqualification is raised before the voting public. If the candidate is disqualified after the election, those who voted for him assume the risk that their votes may be declared stray or invalid. There is no such risk if the petition is filed after the election. (Bagatsing, supra and Lanot, supra) Thus, the COMELEC En Banc erred when it ignored the electoral aspect of disqualification case be setting aside the COMELEC’s First Division’s resolution and referring the entire case to the COMELEC Law Department for the criminal aspect.(Lanot, supra ) 2. Purpose 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) 3. Grounds 1. Violation of Omnibus Election Code – Sec. 68 Candidates found by the COMELEC of having: 1. given money or other material consideration to influence, induce or corrupt the voters or public officials performing election functions. (COMELEC vs. Judge Tagle, 397 SCRA 618) 2. Committed acts of terrorism to enhance his candidacy;

3. Spent his election campaign an amount in excess of that allowed by law; 4. Solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 194; and 5. Violated any of Sections 80, 83, 86, and 261 pars. d, e, k, v, and cc, subpar. 6.

2. 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) 3. Falsity of material representation in certificate of candidacy. – Sec. 78 In order to justify the cancellation of the certificate of candidacy under Section 78 of BP 881, it is essential that the false representation mentioned therein pertain to a material matter. Aside from the requirement of materiality, a false representation under Sec. 78 must consist of a “deliberate attempt to mislead, misinform or hide a fact which would otherwise render a candidate ineligible.” In other words, it must be made with an intention to deceive the electorate as to one’s qualifications for public office. The use of surname, when not intended to mislead or deceive the public as to one’s identity, is not within the scope of the provision. (Salcedo II vs. COMELEC, 312 SCRA 447)

To prove whether or not there has been material representation, the same must not only be material, but also deliberate and willful.(Romualdez vs. COMELEC, 248 SCRA 30 and Fornier vs. COMELEC GR No. 161824, March 3, 2004) A candidate guilty of misrepresentation may be (1) prevented from running, or (2) if elected, from serving, or (3) prosecuted for violation of the election laws. (Bautista vs. COMELEC, 414 SCRA 299) 4. Jurisdiction A complaint for election offense may be filed with the COMELEC Law Department, not with the prosecutor’s Office. The findings in the preliminary investigation conducted by the Law Department is always submitted to the COMELEC en banc for approval or disapproval. Once the finding to file Information in court for any of the acts enumerated under Section 68 is approved by the COMELEC en banc, that finding becomes the finding of the COMELEC. It shall, therefore, contain the ruling to disqualify him as candidate or if he has been elected, from holding office. The jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Section 68 of the OEC. All other election offenses are beyond the ambit of the COMELEC jurisdiction. They are criminal and not administrative in nature, and the power of the COMELEC over such cases is confined to the conduct of preliminary investigation on the alleged election offense for the purpose of prosecuting the alleged offenders before the court of justice. (Codilla vs. COMELEC, 393 SCRA 639)

The jurisdiction of the COMELEC to deny due course or to cancel certificate of candidacy continues even after the elections, if for any reason no final judgment of disqualification is rendered before the election, and the candidate facing disqualification is voted for and receives the highest number of votes, and provided further that the winning candidate has not been proclaimed or taken his oath of office. Further, the decision of the COMELEC to disqualify a candidate shall be come final only after a period of five days. (Saya-ang vs. COMELEC, 416 SCRA 650) The jurisdiction of the Supreme Court defined by Section 4, paragraph 7 of the Constitution does not include cases directly brought before it questioning the qualifications of a candidate for president or vice president before the elections are held. It is the COMELEC which exercises jurisdiction over such disqualification cases, but may be reviewed by the Supreme Court per Rule 64 in an action for certiorari under Rule 64 of the Rules of Court.(Tecson vs. COMELEC, 427 SCRA 277) Jurisdiction Before and After Proclamation. 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) Conversely, once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, COMELEC’s jurisdiction over election contests relating to his election, returns and qualifications ends, the HRET’s jurisdiction begins. (Aggabao vs.COMELEC, 449 SCRA 400)In other words, the proclamation of a

congressional candidate divests COMELEC of jurisdiction in favor of the HRET.(Planas vs. COMELEC, 484 SCRA 529) 4. Procedure for disqualification of candidates 1. The petition (Petition to File Petition to Disqualify) shall be filed by any candidate for the same office within 5 days from the last day of filing of certificates of candidacy. (Secs.5a and 7, RA 6646) but not later than the date of proclamation. (Rule 25, COMELEC Rules of Procedure) i. A petition filed after the election is filed out of time. (Loong vs. COMELEC, 216 SCRA 769) ii. The fact that no docket fee was initially paid is not fatal. The procedural defect was cured by the subsequent payment of the docket fee.(Sunga vs. COMELEC, 288 SCRA 76) iii 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) 4. The COMELEC may motu propio refuse to give due course or cancel a certificate of candidacy filed by a nuisance candidate. (Sec.69, BP 881) 4. 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)

vi. If a candidate defies the three term ban, the remedy is to file a petition to deny due course to certificate of candidacy under Section 78 of the OEC. b. It is not sufficient that the candidate be notified of the COMELEC inquiry into the veracity of the content of his certificate of candidacy, he must also be allowed to present his own evidence to prove that he possesses the qualifications for the office he seeks. (Cipriano vs. COMELEC, 436 SCRA 45) The proceedings shall be summary. (Nolasco vs. COMELEC, 275 SCRA 7 c. The COMELEC can decide a disqualification case directly without referring it to its legal officers for investigation. (Nolasco, supra) 4. 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] The COMELEC is mandated to dismiss a complaint for disqualification of a candidate who has been charged with an election offense under Section 261 of the OEC but who has already been proclaimed as winner by the Board of Canvassers. If the COMELEC finds that there is probable cause, it shall order its Law Department to file appropriate Information with the RTC which has territorial jurisdiction over the offense, but shall nonetheless, order the dismissal of the complaint for disqualification, without prejudice to the outcome of the criminal case. If the trial court finds the accused guilty beyond reasonable doubt, it shall order his disqualification pursuant to Section 264 of the OEC as amended by RA 8189. (Albana vs. COMELEC, 435 SCRA 98)

Intervention. Section 6 of RA 6646 allows intervention in proceedings for disqualification even after elections if no final judgment has been rendered. (Mercado vs. Manzano, 307 SCRA 630 and Lanot, supra) The case for disqualification exists and survives the election and proclamation of the winning candidate because an outright dismissal will unduly reward the challenged candidate and may even encourage to employ delaying tactics to impede the resolution of the disqualification case until after he has been proclaimed. The exception to the rule of retention of jurisdiction after proclamation applies when the challenged candidate becomes a member of the House of Representatives or of the Senate, where the appropriate electoral tribunal would have jurisdiction. This is no law or jurisprudence which says that intervention or substitution may only be done prior to the proclamation of the winning candidate. A substitution is not barred by prescription if the action was filed on time by the person who died and who is being substituted. Effect of Death of Petitioner. In Lanot, supra, it was held that the law and the COMELEC rules have clear pronouncements that the electoral aspect is not rendered inutile by the death of petitioner, provided that there is proper substitution or intervention of parties while there is a pending case. Any citizen of voting age is competent to continue the action of the deceased petitioner. Effects of Disqualification Case 1.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. In Cayat vs. COMELEC, GR 163776, April 24, 2007, due to his failure to pay the prescribed filing fee for his motion for reconsideration, the disqualification of Cayat and the subsequent cancellation of his certificate of candidacy became final 23 days before the 2004 elections. Therefore, all the 8,164 votes cast in his favor are stray. He was never a candidate in the 2004 elections. 2. Before final judgment – If for any reason a candidate is not declared final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, his violation of the provisions of the preceding sections shall not prevent his proclamation and assumption of office. Where a candidate has not yet been disqualified by final judgment during the election day and was voted for, the votes cast in his favor cannot be declared stray. (Codilla vs. de Venecia, 393 SCRA 639) 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) Section 6 of RA 6646 and Section 72 of the OEC require a final judgment before the election for the votes of a disqualified candidate to be considered stray. To do so would amount to disenfranchising the electorate in whom sovereignty resides. For in voting a candidate who has not been disqualified by final judgment during the election day, the people voted for him bona fide, without any intention to misapply their franchise, and in the honest belief that the candidate was then qualified to be the person to whom they would entrust the exercise of the powers of the government. (Codilla Sr. vs. De Venecia,GR. No. 150605, December 10, 2002)

Sec. 6 of RA 6646 authorizes the continuation of proceedings for disqualification even after the elections if the respondent has not been proclaimed. (Perez vs. COMELEC, 317 SCRA 641) But the COMELEC is mandated to dismiss a complaint for disqualification of a candidate who has been charged with an election offense under Sec. 261 but who has already been proclaimed as winner by the Board of Canvassers. (Albana vs. COMELEC,435 SCRA 98) Effect of Disqualification of Elected Candidate. The disqualification of the elected candidate does not entitle the candidate who obtained the second highest number of votes to occupy the office vacated because of the disqualification. Votes cast in favor of a candidate who obtained the highest number of votes, against whom a petition for disqualification was filed before the election, are presumed to have been cast in the belief that he is qualified. For this reason, the second placer cannot be declared elected. (Lanot, supra.)

VIII. CAMPAIGN; EXPENDITURES

ELECTION

PROPAGANDA;

CONTRIBUTIONS

AND

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)

1. 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. 2. It shall be unlawful for any person or any party to engage in election campaign or partisan political activity except during the campaign period. 3. Members of the Civil Service to engage, directly or indirectly, in any electioneering or partisan political campaign.

1. 2. 1. 1. 2.

Nomination of candidates President, Vice President and Senators – not earlier than 165 before election date Congressmen, provincial, city or municipal officials – not earlier than 75 days before election day Campaign period President, Vice President, Senators and party-list representatives – 90 days before election day District representatives, provincial, city and municipal officials – 45 days before election day

C. Regulation of public entities and media – Sec. 4, Art. IX-C The authority given to the COMELEC is to be exercised for 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 COMELEC cannot, through a resolution, require newspapers and magazines to give free print space to the COMELEC. To compel them to donate “Comelec Space” to the dimension specified in Sec. 2 of Resolution No. 2772 amounts to “taking” of private personal property for public use or purposes. The taking of private property is authorized by the Constitution but not without payment of “just compensation.” The COMELEC resolution does not constitute valid exercise of the power of eminent domain because it compels publisher against their will to provide free space for COMELEC purposes. Neither does it constitute a valid exercise of police power of the state as there was no attempt to demonstrate that a real and palpable or urgent necessity for the taking of print space, such as an existence of a national emergency public necessity. (Philippine Press Institute vs. COMELEC, 244 SCRA 272) The Supreme Court upheld the validity of Sec 11(b), RA 6646, prohibiting the sale or donation of print space or airtime for political advertisements (now lifted by RA 9006 The Fair Election Act of 2001), 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 337) CAMPAIGN; ELECTION PROPAGANDA; CONTRIBUTIONS & EXPENDITURES

Section 11(b) of RA 6646 is a valid exercise of the power of the State to regulate media communication or information for the purpose of ensuring equal opportunity, time and space for political campaigns. (Osmena vs. COMELEC, GR No. 132231, March 31, 1998)

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, 323 SCRA 811) The Supreme Court 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: 1. it requires prior restraint on the freedom of expression; 2. it is s direct and total suppression of the category of expression even though such suppression is only for a limited period; and 3. the governmental interest sought to be promoted can be achieved by means other than the suppression of freedom of expressions. (Social Weather Station vs. COMELEC, GR No. 147571, May 5, 2001) In Chavez vs. COMELEC 437 SCRA 415, it was held that all propaganda materials, including advertisement on print, radio or television showing the image or mentioning the name of a person, who subsequent to the placement or display thereof becomes a candidate for public office, be immediately removed, otherwise, this shall be presumed a premature campaigning in violation of Section 80 of the OEC. If the subject billboards were to be allowed, candidates for public office whose name and image are used to advertise commercial products would have more opportunity to make themselves known to the electorate, to the disadvantage of other candidates who do not have the same chance of lending their faces and names to endorse popular commercial products as image models. By regulating the use of propaganda materials, the COMELEC is merely doing its duty under the law. Under Section3 and 13 of the Fair Election Act, all election propaganda are subject to the supervision and regulation of the COMELEC.

D. Lawful propaganda 1. Forms 1. Pamphlets, leaflets, cards, decals, stickers and written or printed materials not more than 8 1/2 inches by 14 inches

b. Handwritten/printed letters c. cloth, paper or cardboard, posters measuring not more than 2 feet by 3 feet by 8 feet allowed in announcing at the site on 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. d. Paid print advertisements: ¼ page in broadsheets and ½ page in tabloids thrice a week per newspaper, magazine or other publication during the campaign period. (Sec. 4, RA 9006) e. 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 f. Other forms of election propaganda not prohibited by the Omnibus Election Code and RA 9006, and authorized by the COMELEC. 2. Requirement 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 advertisements 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. If the broadcast is given free of 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. Print, broadcast or outdoor advertisements donated to the candidate or political party shall not 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) E. 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) F. 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 ore things of value within 5 hours before and after a public rally, before election day and on election day. (Sec. 89 BP 881) G. 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)

1. 2.

3. 4.

H. Prohibited contributions No political contribution shall be made by the following: Public or private financial institutions 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 not is void.(Halili vs. Court of Appeals, 83 SCRA 633) Persons who hold contracts or sub-contracts to supply the government with goods and services 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)

I. Equal Access to Media Time and Space All registered parties and bona fide 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

period. 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.

J. Limitation on expenses – Sec. 13, RA 7166

1. 1. 2. 3. 4.

Candidates President and vice president – P10 per voter Other candidates – P3 per voter in his constituency Candidate without political party – P5 per voter 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) 1. 1.

2.

3. 1. 2. 1. 2. 4.

Statement of contributions and expenditures Who are required to file; Filing Period Every candidate and treasurer of political party shall file within 30 days after election day a statement of contributions and expenditures. b. All candidates are required to file whether winning, losing or withdrawn. Effect of failure to file No persons elected shall assume office until he and his political party have filed the required statements. Penalties First Offense – administrative fine from P1,000 to P30,000 Subsequent offense Administrative fine from P2,000 to P60,000 Perpetual disqualification to hold public office (Sec. 14, RA 7166) Exception to the penalty of fine: Candidates for elective barangay office Effect of withdrawal A candidate who withdrew 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)

IX. 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 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 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 RA 6679, regular elections for barangay officials shall be held once every five years. Election of Sanggunian Members 1. For provinces with two or more legislative district – the elective members of Sanggunian Panlalawigan (SPn) shall be elected by legislative districts. 2. For provinces with only one legislative district – the COMELEC shall divide them into two 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 6636 4. For municipalities in Metro Manila – the COMELEC shall divide them into two districts by barangay for purposes of electing members of the SB.

Postponement of election COMELEC’s Power. Functions of the COMELEC under the Constitution are essentially executive and administrative in nature. The authority given to the COMELEC to declare a failure of elections and to call for special elections falls under its administrative functions. (Sambrani vs. COMELEC, 438 SCRA 319) Hence, a petition to postpone elections should be addressed to the COMELEC and not to the courts, subject to the remedy of review provided for in Art IX-A, Section 7 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)

ELECTION; BOARD OF ELECTION INSPECTORS (BEI); WATCHERS Grounds. 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) 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 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) 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) The prohibition in conducting special elections after thirty days from the cessation of the cause of the failure of elections is not absolute. It is directory, not mandatory and the COMELEC possesses residual power to conduct special elections even beyond the deadline prescribed by law. the deadline in Section 6 cannot defeat the right of suffrage of the people as guaranteed by the Constitution. The COMELEC has broad power or authority to fix other dates for special elections to enable the people to exercise their rights of suffrage. The COMELEC may fix other dates for the conduct of special elections when the same cannot be reasonably held within the period prescribed by law. (Sambrani vs. COMELEC, 438 SCRA 319) Failure of Election; Petition to Annul Election Results 1. Nature. A prayer to declare failure of election and a prayer to annul the election results xxx are actually of the same nature. Whether an action is for declaration of failure of elections or for annulment of election results, based on allegation of fraud, terrorism, violence or analogous causes, the OEC denominates them similarly. (Banaga vs. COMELEC, 336 SCRA 701) 2. Three Instances. 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 the 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) In all three instances, there must have been failure to elect, meaning, nobody emerged as winner. (Galo vs. COMELEC, 487 SCRA 548) 3. Two Conditions. Before COMELEC can act on a verified petition seeking to declare a failure of election, two (2) conditions must concur: first, no voting has taken place in the precinct or precincts on the date fixed by law because of force majeure, violence, terrorism or analogous causes, or, even if there was voting, the election nevertheless results in failure to elect; and, second, the votes not cast would affect the result of the elections. The concurrence of these two circumstances justifies the calling of special elections. (Banaga, supra and Cawasa vs. COMELEC, GR No. 150469, May 30, 2002) 4. Meaning. 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 persistent 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 violence, 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 No134913, January 19, 2001) 5. A special election should be held if the ballot box in the precinct was burned. (Hassan vs. COMELEC, 264 SCRA 125) 6. Where during the counting of the ballots, armed men replaced the ballots and coerced the election inspectors to prepare spurious returns, there is a failure of election. (Sanchez vs. COMELEC, 114 SCRA 454) 7. 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) 8. 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) 9. In petitions to declare a failure of election on the ground of fraud, the COMELEC may conduct a technical examination of election documents and compare and analyze the signatures and fingerprints of the voters. (Loong vs. COMELEC, 257 SCRA 1) Not Grounds for Declaration of Failure of Elections 1. The destruction of the copies of the election returns intended for the board of canvassers is not a ground for the declaration of a failure of election as other copies of the returns can be used. (Sardea vs. COMELEC, 225 SCRA 374)

2. 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)

3. 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) 4. 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 not 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) 5. An election can not 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 and Cawasa vs. COMELEC, supra) 6. The use of fake ballot is not a ground to declare failure of election. (Galo vs. COMELEC, 487 SCRA 548)

Special Election to fill up vacancy Vacancy in the House of Representatives. In case of permanent vacancy in the House of Representatives at least one year before the expiration of the term, the COMELEC shall hold a special election not earlier than 60 days nor later than 90 days after the occurrence of the vacancy. Vacancy in the Senate. In case of vacancy in the Senate, Section 2 of RA 6645 requires Congress to (1) call a special election which shall be held simultaneously with the next succeeding regular election; and (2) give notice to the voters of the office or offices to be voted for. In a special election to fill a vacancy, the rule is that a statute that expressly provides that an election to fill a vacancy shall be held at the next regular election fixes the date at which the special election is to be held and operates as a call for that election.. Consequently, an election held at the time thus prescribed is not invalidated by the fact that the body charged by law with the duty of calling the election failed to do so. This is because the right and duty to hold the election emanates from the statute and not from any call for the election by some authority and the law thus charges voters with knowledge of the time and place of election. (Tolentino vs. COMELEC, 420 SCRA 438) The test in determining the validity of a special election in relation to the failure to give notice to the special election is whether the want of notice has resulted in misleading a sufficient number of voters as would change the result of the special election. If the lack of notice misled a substantial

number of voters who wrongly believed that there was no special election to fill a vacancy, a choice by a small percentage of voters would be void. (Ibid.)

Vacancy in the offices of the President and Vice President.At 10 o’clock in the morning of the 3rd day after the vacancy occurs, Congress shall convene without need of a call and within seven days enact a law calling for special election to elect a President and a Vice President to be held not earlier than 45 nor later than 60 days from the time of such call. The bill shall be deemed certified and shall become a law upon its approval on third reading by Congress. The convening of Congress cannot be suspended nor the special election be postponed. No special election shall be called if the vacancy occurs within 18 months before the date of the next presidential election.

Board of Election Inspectors (BEI) 1. The Board of Election Inspectors shall be composed of a chairman and two members, all of whom are public schools teachers. 2. 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. (Sec. 13, RA 6646) The appointment of military personnel as members of the BEI is a grave electoral irregularity. There was absolutely no legal basis for their appointments and were devoid of any justification other than the bare assertion that “political parties and municipal candidates agreed on the said agreement.” It is highly irregular to replace duly constituted members of the BEI who were public school teachers. (Cawasa vs. COMELEC, 383 SCRA 787) Watchers Number 1. Official watchers 1. Every registered party or coalition of parties and every candidate is entitled to one watcher per precinct and canvassing counter. 2. Candidates for the local legislature belonging to the same party are entitled collectively to one watcher. 3. Six principal watchers from 6 accredited major political parties shall be recognized. (Sec. 26, RA 7166) 2. Other watchers 1. The accredited citizen’s arm is entitled to a watcher in every precinct. 2. Other civic organizations may be authorized to appoint one watcher in every precinct. (Sec. 180, BP 881) 1. Important rights of watchers 1. All watchers 1. To stay inside the precinct

2. To inform themselves of the proceedings 3. To file a protest against any irregularity

4. To obtain a certificate of the number of votes cast for each candidate. (Sec. 179, BP 881) 2. Citizen’s arm To be given a copy of the election return to be used for the conduct of an unofficial count. (Sec. 1, RA 8045) X. CASTING AND COUNTING OF VOTES Authentication of Ballots. 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. (Sec. 24, RA 7166) 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. The omission of such signature does not affect the validity of the ballot. (Libanan vs. HRET, 283 SCRA 520, Punzalan vs. COMELEC, 289 SCRA 702) 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. (Sec. 200, BP 881) 3. Illiterate and Disabled Voters. 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. (Sec. 196, BP 881) 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, BP 881). A ballot prepared under such circumstances should not be counted. (Gutierrez vs. Aquino, GR No. L-14252, February 26, 1959) Local Absentee Voting Definition; Who are Entitled. It refers to a system of voting whereby government officials and employees, including members of the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), who are duly registered voters, are allowed to vote for the positions of President, Vice President, Senators and Party-List Representatives in places where they are not registered voters but where they are temporarily assigned to perform election duties on election day. (Sec. 12, RA 7166) Government officials and employees posted abroad to perform election duties may also avail of local absentee voting, provided they are registered voters and that they are not registered overseas

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

Manner of Counting Votes 1. The Board of Election Inspectors shall read the ballots publicly and shall not postpone the count until it is completed. (Sec. 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. (Sec. 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 board of election inspectors may effect the transfer by unanimous approval of the board and concurrence of a majority of the watchers present. (Sec. 18, RA 6646) 4. Where a commotion resulted in suspension of the counting, the board of election inspectors may recount the ballots. (Dayag vs. Alonzo) Excess, Spoiled, Marked Ballots Excess, spoiled and marked ballots shall not be read during the counting of votes. The envelopes containing them shall be signed and sealed by the BEI and deposited in the compartment for valid ballots. 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. (Sec. 207, BP 881) 2. Spoiled Ballots a. Ballots deposited in the compartment for spoiled ballots are presumed to be spoiled, whether or not they contain such notation b. If during the voting, the board of election inspectors finds that a valid ballot was erroneously deposited in the compartment for spoiled ballots, the BEI shall open the said compartment after the voting and before the counting only to get such erroneously deposited ballot. Said ballot shall then be mixed with the other valid ballots. and shall be counted. (Sec. 209, BP 881) 3. Marked Ballot a. Marked ballots shall not be counted. (Sec. 208, BP 881) b. A ballot is considered marked in any of the following cases: i. The voter signed the ballot. (Ferrer vs. De Alban, 101 Phil 10180 ii. The voter wrote the names of well-known public figures who are not candidates such as actors, actresses and national political figures.(Protacio vs. De Leon, 9 SCRA 472; Pangontao vs. Alunan, 6 SCRA 853) iii. 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. [Sec. 211(13), BP 881] iv. The unexplained presence of prominent letters and words written with remarkably good hand marked the ballots and must be considered invalid. (Ong vs. COMELEC, 347 SCRA 681)

c. On the distinctive use of, and several impositions with blue ink on the name of Dojillo with the rest of the votes written in blank ink, the Supreme Court ruled that unless it should clearly appear that they have been deliberately put by the voter as identification marks, the use of two or more kinds of handwriting shall not invalidate the ballots. (Dojillo vs. COMELEC, 496 SCRA 484) d. Under Par. 21, Sec. 211 of the OEC, crosses put on the spaces on which the voter has not voted shall be considered as signs to indicate his desistance from voting and shall not invalidate the ballot. And so are circles and lines signifying the voter is abstaining from voting for certain positions. e. Under Par. 22, Sec 211 of the OEC, unless it should clearly appear that they have been deliberately put by the voter as identification marks, hypens, commas, dots, lines between the first name and surname of a candidate or in other parts of the ballot. f. A ballot should be counted if it is marked afterwards by some person or persons other than the voter himself – subsequent changes in the ballot made by a person other than the voter should not be permitted to affect the result of the election or destroy the will of the voters. g. Evidence aliunde is not necessary to prove a ballot is marked. (Bacobo vs. COMELEC, 191 SCRA 576) Rules in the Appreciation of Ballots Appreciation of ballots is a function of the Board of Election Inspectors, not of the Board of Canvassers. (Sanchez vs. COMELEC, 153 SCRA 67) General Rule. A ballot indicates the voters’ will. There is no requirement that the entries in the ballot be written nicely or that the name of the candidate be spelled accurately. In the reading of the ballot, every ballot is presumed valid unless there is a clear reason to justify its rejection. The object in the appreciation of ballots is to ascertain and carry into effect the intention of the voters, if it can be determined with reasonable certainty. (Dojillo vs. COMELEC, 496 SCRA 484) Laws and statutes governing election contests especially appreciation of ballots must be liberally construed to the end that the will of the electorate in the choice of public officials may not be defeated by technical infirmities. The appreciation of the contested ballots and election documents involves a question of fact best left to the determination of the COMELEC, thus, its findings of facts in that regard are generally accorded great respect, if not finality. (De Guzman vs. COMELEC, 426 SCRA 698) Idem Sonans Literally, it means “of the same sound.” A name which is misspelled or incorrectly written but which when read has a sound similar to that of a candidate for that office is valid for such candidate.

Thus, 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) Also, a name or surname or name of a party incorrectly written which, when read, has a sound similar to the name or surname of a candidate when correctly written is a valid vote for such candidate. Idem sonans rule does not require exactitude nor perfection in the spelling of names. The question whether a name sounds the same as another is not one of spelling but pronunciation. (Dojillo vs. COMELEC, 496 SCRA 484) Predominance of Surnames When surname alone is used, the vote is valid. If the surname of a candidate is the first name of another candidate for the same office and only that name is written on the ballot, the vote shall be counted in favor of the candidate who has that name as his surname. 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) Equity of the incumbent 1. If two or more candidates have the same name or surname and one of them is incumbent and on the ballot is written that name or surname only, it shall be counted for the incumbent only. 2. When two candidates have the same full name, first name or surname and one of them is incumbent, the vote shall be counted in favor of the incumbent 3. When two surnames are written, only the surname of the incumbent, who has served for at least one year, will be counted. 4. When a candidate is a woman who uses her maiden name or married surname or both and the re is another candidate with same surname, a ballot bearing only such surname will be counted in favor of the candidate who is an incumbent. Neighborhood or Proximity Rule Generally, votes should be written on the space provided for. However, if it not written on the space provided for, the vote shall be considered valid for said candidate whose name is written proximate to the space provided for. This is sometimes referred to as the “intent rule.” Where a space for Punong Barangay is blank but the name of the candidate for such position is written on the first line of the space for Barangay Kagawad, the vote is valid for said candidate. (Abad vs. Co, 496 SCRA 505) 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; Lerias vs. HRET, 202 SCRA 808; Bautista vs. Castro, 206 SCRA 306) In Velasco vs. COMELEC, GR No. 16693, February 22, 2007, the Supreme Court ruled that the following misplaced votes are credited to the candidates so indicated because the intention of the voters to such vote is unmistakably from the face of the ballots.

1. a general misplacement of an entire series of names intended to be voted for the successive offices appearing in the ballot;

2. a single or double misplacement of names where such names were preceded or followed by the title of the contested office or where the voter who wrote after the candidate’s name a directional symbol indicating the correct office for which the misplaced name was intended; and 3. a single misplacement a) off-center from the designated place b) slightly underneath the line for the contested office c) immediately above the title for the contested office or d) in the space for an office immediately following that for which the candidate presented himself. Conversely, where a name written on the ballot was not found or near any of the spaces corresponding to the correct position of Punong Barangay, the same is considered a misplaced vote or vote for a candidate for the wrong or inexistent office, and therefore, invalid. Block Voting If the word written is the identical 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 the other candidates voted for in the ballot for the same constituency. Substituted Candidate 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. (Alfonso vs. COMELEC, 232 SCRA 777) In case of valid substitutions after the official ballot have been printed, the votes cast for the substituted candidates shall be considered as stray 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. (Sec. 12, RA 9006) Use of Nicknames Sec. 211. (13) of the OEC establishes the rule that nickname alone is a valid vote provided: (i) it is that by which the candidate is generally or popularly known in the locality, and (ii) there is no other candidate with the same nickname for the same office. (Villarosa vs. HRET, 340 SCRA 396) Use of Initials The initial of a nickname of a candidate may be used together with the surname of the candidate for the purpose of identifying the candidate for whom the voters vote. (Dojillo vs. COMELEC, 496 SCRA 484) The erroneous initial of the first name accompanied by the correct surname of a candidate, or the erroneous initial of the surname accompanied by the correct first name of a candidate, wrong middle initial of the candidate.shall not annul the vote in his favor. Initials of a political party as long as they are the same initials appearing in the Certified List of Parties, is still valid for counting

Erased Names When in a space in the ballot there appears a name of a candidate that is erased and another clearly written, the vote is valid for the latter. The ballot indicated the voter’s intention to correct his vote for the latter. (Dojillo vs. COMELEC, 496 SCRA 484) Excess Voting If the candidates 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. Multiple Positions When two or more words are written on different lines which are the surnames of two or more candidates with the same surname for an office for which the law authorizes the election of more than one, the vote shall be counted in favor of all candidates, with the same surname. Thus, identical surnames repeatedly appearing on different lines or for multiple positions can be counted when two or more positions are open. Examples as in positions for Senator, Sangguniang Panlalawigan, Sangguniang Panlunsod and Sangguniang Bayan.

Votes are still VALID for counting in the following instances: 1. Candidate’s first name or surname, as long as there is no other candidate with same name or surname. 2. Votes with prefixes such as “Sr.,” “Mr.,” “Datu,” “Don,” “Ginoo,” “Hon.,” “Gob.,” or suffixes such as “Segundo” 3. First name or surname of a candidate which is the same with another person who is not a candidate. 4. Traces or extensions of the letter “T,” “J,” and other similar letters. 5. The first letter or syllables of names which voter does not continue. 6. Two or more kinds of handwriting and unintentional or accidental flourishes, strokes or stains 7. Accidental tearing or perforation of a ballot does not annul it. 8. Written with crayon, lead pencil or ink. 9. Incorrect spelling of a candidate’s name does not invalidate the ballot-even the most literate person is bound to commit a mistake in spelling. (Ong vs. COMELEC, 347 SCRA 681)

Votes are INVALID in the following cases: 1. Votes with correct name surname followed by the wrong first name or votes with correct first name followed by the wrong surname are considered stray votes. 2. Combining the first name and surname of two different candidates. 3. Initials or illegible writing or any vote which does not sufficiently identify the candidate for whom it was intended shall be considered stray vote but shall not invalidate the whole ballot. (Dojillo vs. COMELEC, 496 SCRA 484) 4. Vote for a candidate for a position he is not running for. 5. Vote for a party for a position they are not running for

6. Two or more names of candidates or parties in one single space because any vote in favor of a candidate for an office for which he did not present himself shall be considered as a stray vote but it shall not invalidate the whole ballot. (Dojillo vs. COMELEC, 496 SCRA 484) 7. Name of person or party not running for office. 8. Pre-printed stickers or typed entries. 9. Any ballot which clearly appears to have been filled by two distinct persons. 10. Vote for disqualified candidate or party. 11. If two or more candidates were voted for in an office for which the law authorizes the election of only one, the vote shall not be counted in favor of any of them. It is not necessary to engage the services of a handwriting expert to examine or compare handwriting on the ballots. (Punzalan vs, COMELEC, 289 SCRA 702) The COMELEC has the power to reject 466 ballots on the ground of identical handwriting although the protestant did not raise such issue or impugn the validity of these ballots on said ground. Unlike ordinary suit, an election protest is of utmost public concern. The choice of the people to represent them may not be bargained away by the sheer negligence of a party, nor defeated by technical rules of procedure. Thus, the COMELEC cannot just close its eyes to the illegality of the ballots brought before it, where the ground for the validation was omitted by the protestant. (Arao vs. COMELEC, 210 SCRA 290) Stray Votes Rule 14 of Section 211 of the Omnibus Election Code considers three kinds of votes astray: (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. The first category of stray votes is not to be qualified by the third category in the sense that votes in initials only may be counted for as candidate provided that the initials sufficiently identify the candidate voted for. (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. (Ong vs. COMELEC, 347 SCRA 681) Paragraph 18, section 149 of the REC, provides that unless it should clearly appear that is has been deliberately put by the voter to serve as identification mark, or the use of two or more kinds of writing shall be considered innocent and shall not invalidate the ballot. (Id.) Under Par. 14, Sec 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 a stray vote, but it shall not invalidate the whole ballot.

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 board of election inspectors. 2. After the announcement of the results in a precinct, the authorization of the COMELEC is needed to make any correction or alteration. a. If the petition is by all members of the board of election inspectors, 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. b. 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. (Sec. 216, BP 881) Certificate of Votes 1. The BEI shall issue a Certificate of Votes containing the total number of votes received by each candidate or party sectoral organization or coalition participating under the party-list system of representation upon request of a watcher. (Sec. 16, RA 6646) 2. The BEI’s refusal to furnish Certificates of Votes shall constitute an election offense. (Sec. 27, RA 6646) 2. 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. Posting of a Copy of Election Returns The 8th copy of the election returns shall be posted on the wall within the premises of the polling place or voting center. Any person may view or capture an image of the ER by means of any date capturing device such as but not limited to cameras at any time of the day for 48 hours following its posting. (Sec. 21, RA 9369) –o0o– XI. CANVASSING AND PROCLAMATION Canvassing Bodies 1. Congress 1. President 2. Vice President (Sec. 3 Art. VII, Phil. Constitution; Sec. 30 RA 7166) In Lopez vs. Senate of the Philippines, it was held that Congress may validly delegate the preliminary determination of the authority and due execution of the certificate of canvass to a Joint Congressional Committee constituted under the Rules adopted by the Joint Session of Congress.

Even after Congress had adjourned its regular session, it may continue to perform the constitutional duty of canvassing the presidential and vice presidential election results without need of any call for a special session by the President. (Pimentel vs. Joint Committee of Congress to Canvass the Votes Cast for President and Vice President) COMELEC Res. No. 6712 usurps, under the guise of an “unofficial tabulation” via electronic transmission of election results on a copy of the election returns, the sole and exclusive authority of Congress to canvass the votes for the election of President and Vice President. If the COMELEC is proscribed from conducting an official canvass of votes for President and Vice President, the COMELEC is, with more reason, prohibited from making an “unofficial” canvass of said votes. (Brillantes vs. COMELEC, 432 SCRA 269) 2. Commission on Elections 1. Senators (Sec. 2, EO 144) b. Regional officials (Sec. 7, Art. XIX, RA 6734) c. Party-List Representatives (RA 7941) 3. Provincial Board of Canvassers 1. Congressman 2. Provincial officials [Sec. 28 (d), RA 7166] 4. District Board of Canvassers in each legislative district in Metro Manila 1. Congressman 2. Municipal official [Sec. 28 (c), RA 7166] 5. City and Municipal Board of Canvassers 1. Congressmen 2. City and Municipal officials [Sec. 28 (a) and (b), RA 7166] The law explicitly prescribed the minimum qualifications of who may sit as the substitute Third Member of the Municipal Board of Canvassers in the absence of the most senior school district supervisor – the substitute must be a principal of the school district or the elementary school. The designation of an ordinary public school teacher as a member of the MBC is null and void. Hence, the acts and declarations of an illegally constituted MBC are also null and void. (Salic vs. COMELEC, 425 SCRA 735) 6. Barangay Board of Canvassers 1. Barangay officials (Sec. 17, BP 222) Supervisory Power Over the Board

The COMELEC exercises direct supervision and control over the proceedings before the Board of Canvassers, except Congress which is a co-equal constitutional body. . (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 overt the board of canvassers except Congress. It may motu propio relieve at any time and substitute any member of the board of canvassers. (Sec. 227, BP881) 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 boards 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 mere 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 boards 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. (Sec. 229, BP 881) 3. Under Section 39 of RA 9369, the Automated Election System Law of 2007, returns for national positions shall be canvassed first. 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. Sec. 26 RA 7166) The fact that the watcher of a candidate was not present when

the canvassing was resumed because he was not 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. i. Only one counsel may argue for each party of candidate. ii. No dilatory action shall be allowed. (Sec. 25, RA 6646) 3. Problem Areas 1. Lost return i. If any election return has been lost, upon prior authority of the COMELEC, the board of canvassers may use any authentic copy of it or a certified copy of it issued by the COMELEC. (Sec. 233, BP 881; Samad vs. COMELEC, 224 SCRA 631) It is not necessary that all the other copies be considered. (Pangarungan vs. COMELEC, 216 SCRA 522) ii. 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) iii. If all copies of the election returns were lost, a recount of the ballots should be made. (Ong vs. COMELEC, 216 SCRA 457) iv. The certificates of votes signed by the board of inspectors and the tally board cannot be used for the canvass, because only election return are evidence of the results of the election. (Garay vs. COMELEC, 262 SCRA 222) 2. Omission in the return or incomplete return 1. 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 board of election inspectors to complete it. ii. 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 board of election inspectors to count the votes for the candidate whose votes were omitted and to complete the return. (Sec. 234, BP 881). 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) iii. Since the return was incomplete for it lacked the date as to provincial and congressional candidates, the applicable provision would be Section 234 of the OEC which deals with material defects in election returns. Thus the COMELEC should have first determined the integrity of the ballot box, ordered the opening thereof, and recounted the ballots therein after satisfying that the integrity of the ballot is intact. (Lee vs. COMELEC, 405 SCRA 363) 3. Tampered or falsified return 1. 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 board of election inspectors, the board shall use the other copies of the election return. 2. 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)

3. If the other copies of the election returns were also tampered with or falsified or prepared under duress or by persons other than the board of election inspectors, the COMELEC after ascertaining that the integrity of the ballot box has not been violated, shall order the board of election inspectors to recount the votes and prepare a new return. (Sec. 235, BP 881) iv. 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 vs. COMELEC, 234 SCRA 280) v. Any election return with a separately printed serial number or which bears a different serial number that assigned to the particular polling place concerned shall not be canvassed. (Salic vs. COMELEC, 426 SCRA 698 4. 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. (Sec 236, BP 881) 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) Posting of a Copy of COC The copy of the certificate of canvass posted on the wall shall be open for public viewing at any time of the day for 48 hours following its posting. Any person may view or capture an image of the certificate of canvass. After the prescribed period for posting the SBRCG shall collect the posted certificate of canvass and keep the same in his custody to be produced for image or data capturing as may be requested by any voter or for any lawful purpose as may be ordered by competent authority. Except for those copies that are required to be delivered, copies of the certificate of canvass may be claimed at the canvassing center. Any unclaimed copy shall remain with the SBRCG, which shall produce them when requested by the recipient or when ordered by a competent authority. Any violation of these shall constitute an election offense and shall be penalized in accordance with BP 881. (RA 9369)

What constitute an election 1. Plurality of votes sufficient for choice 2. Not necessary that a majority of voters should vote Tie Vote 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. (Sec. 4, Art. VII, PC)

2. In the case of other positions, the ties shall be broken by the drawing of lots. (Sec. 240, BP 881) The winner is the candidate who has obtained a majority or plurality of valid votes cast in an election. Sound policy dictates that public elective offices are filled by those who receive the highest number of votes cast in the election for that office. For in a republican form of government the basic idea is that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. (Rulloda vs. COMELEC, 395 SCRA 365) Proclamation Power to Proclaim. Only authorized canvassing bodies can proclaim winning candidates. Thus, in Macalintal vs. COMELEC, GR No. 157013, July 11, 2003, the Supreme Court ruled unconstitutional Section 18.5 of RA 9189 which granted sweeping authority to the COMELEC to proclaim all winning candidates because it was repugnant to Section 4, Article VII of the Constitution which vests in Congress the authority to proclaim the winning Presidential and VicePresidential candidates. Basis of Proclamation. The Statement of Votes forms the basis of the proclamation. Any error in the statement ultimately affects the validity of the proclamation. If a candidate’s proclamation is based on a Statement of Votes which contain erroneous entries, it is null and void – it is no proclamation at all and the proclaimed candidate’s assumption of office cannot deprive the COMELEC of the power to annul the proclamation. (Milla vs. Balmores-Laxa, 408 SCRA 679) An incomplete canvass of votes is illegal cannot be a basis of a valid proclamation. (Samad vs. COMELEC, 224 SCRA 631; Loong vs. COMELEC, 257 SCRA 1; Jamil vs. COMELEC, 283 SCRA 349; Immam vs. COMELEC, 322 SCRA 866 and Utto vs. COMELEC, 375 SCRA 523) 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 and Munoz vs. COMELEC, 495 SCRA 407) EXCEPTION: If the questioned election returns will not affect the result of the election, a proclamation may be made upon the order of the COMELEC after notice and hearing. (Sec. 238, BP 881) Conversely, 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) The proclamation of all winning candidates in the municipal election is a ministerial duty of the canvassing board. (Salic vs. COMELEC, 425 SCRA 735)

Suspension of Proclamation. 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) Grounds. Filing of pre-proclamation controversy under Sec. 248 of BP 881 is not the only grounds for the suspension of proclamation. Two other instances are provided in RA 6646, namely, Sec.6, the COMELEC, upon motion of the complainant in an action for disqualification, suspend the proclamation of the winning candidate if the evidence of his guilt is strong, and Sec. 7, the COMELEC, may likewise suspend the proclamation of the winning candidate is there is a ground for denying or canceling his certificate of candidacy. These actions are in the nature of preproclamation controversies and therefore, like pre-proclamation contests, their filing is a ground for the suspension of proclamation and, consequently, of the period for filing either an election protest or a petition for quo warranto. (Dagloc vs. COMELEC, 321 SCRA 273) 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. COMELEC, 320 SCRA 817) Petition for Correction. Section 7 of the COMELEC Rules of Procedure clearly states that the petition for correction may be filed at any time before the proclamation of a winner. Respondent Loong filed the petition for correction during the proceedings of the Provincial Board of Canvassers, hence, it was filed before the proclamation of candidates. The petition was, therefore, valid. (Baddiri vs. COMELEC, 459 SCRA 808)

Who can be Proclaimed; Effect of Death of a Winning Candidate. In Benito vs. COMELEC, 325 SCRA 436, it was held that a mayoralty candidate who obtained the highest number of vote and who was ambushed and killed before his proclamation is still entitled to be proclaimed as winner but with the information, in parenthesis, that he died, for the purpose of applying the rule on legal succession. In the same case, the Supreme Court also ruled that the death of a winning candidate: 1) cannot serve as basis for the Municipal Board of Canvassers to exclude from tallying, counting and canvassing all votes for and in the name of the deceased candidate; 2) does not render his victory and proclamation moot and academic but it is rather the duty of the Municipal Board of Canvassers to proclaim as winner the candidate who obtained the highest number of votes; and 3) does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The Court further said: “In every election, the people’s choice is the paramount consideration and their expressed will must, at all times, be given effect. When the majority speaks and elects into office a candidate by giving him the highest number of votes cast in the election for that office, no one can be declared elected in his place. xxx For to allow the defeated and repudiated candidate to take over the mayoralty despite his rejection by the electorate is to disenfranchise the electorate without any fault on their part and to undermine the importance and meaning of democracy and the people’s right to elect officials of their choice. Null and Void Proclamation. The COMELEC is with authority to annul any canvass and proclamation which was illegally made. (Munoz vs. COMELEC, 495 SCRA 407) Where a proclamation is null and void, the proclaimed candidate’s assumption of office cannot deprive the COMELEC of the power to declare such proclamation a nullity. (Utto vs. COMELEC, 375 SCRA

523) Thus, the COMELEC was correct in annulling the proclamation of a petitioner for being based on an erroneous computation of votes. (Saliguin vs. COMELEC, 532 SCRA 219) Where at the time the proclamation was made, a pre-proclamation controversy pending at the COMELEC First Division has not yet been resolved, the Municipal Board of Canvassers should not have not proclaimed petitioner as the winning candidate absent the authorization from the COMELEC. Any proclamation made under such circumstances is void ab initio. However, 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) 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 SACRA 602)

A Certificate of Canvass and Proclamation bearing only one valid signature is void. (Salic vs. COMELEC, 425 SCRA 735) Effect of Filing Petition to Annul or Suspend Proclamation. The filing of petition to annul or suspend the proclamation shall suspend the running of the period in which to file an election protest or quo warranto proceedings. The party seeking annulment must file the petition before the expiration of the 10-day period. (Tan vs. COMELEC, 507 SCRA 352) 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. 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 Canvassers and which were not furnished to the said candidate… Reliance should no be placed on mere affidavits for the purpose of annulling a winning candidate’s proclamation. (Velayo vs. COMELEC, 327 SCRA 713) 3. Where a party alleges the existence of manifest errors in the preparation of the election returns, clearly the proper remedy is not a petition for quo warranto but a petition for annulment of proclamation. (Angelia vs. COMELEC, 332 SCRA 757) 4. 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 member or members of the Sangguniang Bayan. (Angelia vs. COMELEC, 332 SCRA 757) 5. If a candidate’s proclamation is based on a Statement of Votes which contain erroneous entries, it is null and void – it is no proclamation at all and the proclaimed candidate’s assumption of office cannot deprive the COMELEC of the power to annul the proclamation. (Milla vs. Balmores-Laxa, 408 SCRA 679)

Effect of Proclamation. Once proclaimed and duly sworn in office, a public officer is entitled to assume office and to exercise the functions thereof. The pendency of an election protest is not sufficient basis to enjoin him from assuming office or from discharging his functions. Unless his election is annulled by a final and executory decision, or a valid execution of an order unseating him pending appeal is issued, has the lawful right to assume and perform the duties of the office to which he has been elected. (Mendoza vs. Laxina, 408 SCRA 156) Effect of Disqualification/Vacancy. The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not 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 his rejection by the electorate is to disenfranchise the electorate without any fault on their part and to undermine 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) Rejection of the Second Placer Doctrine. The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not 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 his rejection by the electorate is to disenfranchise the electorate without any fault on their part and to undermine 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) For to allow the defeated and repudiated candidate to take over the mayoralty despite his rejection by the electorate is to disenfranchise the electorate without any fault on their part and to undermine the importance and meaning of democracy and the people’s right to elect officials of their choice. (Benito vs. COMELEC, 325 SCRA 436) The doctrine is equally applicable to multi-slot position such as Sanggunian member. Thus, if the 10th spot in the city council has been declared vacated, the 11th placer cannot be elevated to said higher position for the simple reason that the electorate did not elect him as one of the ten city councilors. (Idulza vs. COMELEC, 427 SCRA 7012) The doctrine will apply if two conditions concur: (1) the decision on a candidate’s disqualification case remained pending on election day resulting in the presence of two mayoralty candidates; and (2) the decision on such disqualification case became final only after elections. (Cayat vs. COMELEC, GR 163776, April 24, 2007) The doctrine was applied in Labo vs. COMELEC and a host of other cases because the judgment declaring the candidate’s disqualification had not become final before the elections but became final only three days after the 1992 elections. On the other hand, the doctrine does not apply to Cayat vs. COMELEC because the disqualification of Cayat and the subsequent cancellation of

his certificate of candidacy (for his failure to pay the prescribed filing fee for his motion for reconsideration) became final 23 days before the 2004 elections. Thus, Palileng was the only candidate for Mayor of Buguias, Benguet. As the only candidate, Palileng was not a second placer. On the contrary, Palileng was the sole and only placer, second to none. The doctrine on the rejection of the second placer, which triggers the rule on succession, does not apply in his case because he is not a second placer but the only placer. Consequently, his proclamation as mayor is beyond question. (Cayat vs. COMELEC, supra)

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. (Sec. 12, BP 881) XII. PRE-PROCLAMATION CASES 1. 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 and Sinsuat vs. COMELEC, 492 SCRA 391) 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 vs. COMELEC, 319 SCRA 482) 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. (Sebastian vs. COMELEC, 327 SCRA 406 and Belac vs. COMELEC, 365 SCRA 394) 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 a 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) 2. 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 Commission on Elections. (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. (Sec. 17, RA 7166) 3. When the issue involves the correction of manifest errors in the tabulation or tallying of the results during the canvassing, the same may be filed directly with the Commission en banc. [Sec. 5 (2), COMELEC Rules of Procedure] A manifest error is one that is visible to the eye or obvious to the understanding; that which is open, palpable, incontrovertible, needing no evidence to make it more clear. (O’Hara vs. COMELEC, GR Nos. 148941-41, March 12, 2002) C. Scope of Pre-proclamation controversy 1. Provincial, city and municipal officials 1. The composition of the proceeding of the board of canvassers is illegal; 2. 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; 3. The returns were prepared under duress or are obviously manufactured or not authentic; d. Substitute or fraudulent returns were canvassed, the result of which materially affect the standing of the aggrieved candidate. (Sec. 243, BP 881; Sec. 16 RA 7166) 2. President, Vice President, Senators and Congressmen 1. No pre-proclamation case is allowed regarding the preparation, transmission, receipt, custody and appreciation of the election return or certificate of canvass for President, Vice President, Senators and Members of the House of Representatives. (Chaves vs. COMELEC, 211 SCRA 315; Ong vs. COMELEC, 216 SCRA 826, Pangilinan vs. COMELEC, 228 SCRA36) b. While the first sentence of Sec. 15 of RA 7166 prohibits candidates in the presidential, vicepresidential, senatorial and congressional elections from filing pre-proclamation case, the second sentence of Sec. 15 allows only 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) Under Section 38 of Ra 9369 (amending Section 15 of RA 7166) the prohibition does not preclude the authority of the appropriate canvassing body motu propio or upon written complaint of an interested person to correct manifest errors in the certificate of canvass or election return before it.

D. Proper Issues in a Pre-Proclamation Controversy The enumeration of issues that may be raised in pre-proclamation controversies, as provided for in Section 243 of the OEC is restrictive and exclusive. (Dagloc vs. COMELEC, 417 SCRA 574)

The following shall be proper issues that may be raised in a pre-proclamation controversy: 1) Illegal composition or proceedings of the board of canvassers which must be filed immediately when the board begins to act as such or at the time of the appointment of the member whose capacity to seat as such is objected to if it comes after the convening of the board, or immediately at the point where the proceedings are or begin to be illegal. (Villamor vs. COMELEC, 496 SCRA 334) 2) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of the OEC 3) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic. Where the threats of the followers of a candidate did not affect the genuineness of the election return, it should not be excluded. (Salvacion vs. COMELEC, 170 SCRA 513)and 4) When substitute and fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates. Hence, the COMELEC finding on election returns which it found to be a sham, anchored on the “manner of their preparation,” is a pre-proclamation issue. (Dagloc vs. COMELEC, 417 SCRA 574) 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 of the appraiser and 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. The canvassing body may motu propio or upon petition of an interested party correct manifest errors in the certificate of canvass or election return. (Sec.15, RA 7166) 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 is copying the figures into the statement of votes or certificate of canvass. Errors in addition in the certificate of canvass may be corrected. ( Lucero vs. COMELEC, 234 SCRA 280)

iv. Returns from non-existent precincts were included in the canvass. [sec. 5 (a) (2), Rule 27 of COMELEC Rules of Procedure; Ong vs. COMELEC, 221 SCRA 75) 2. 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) 3. Doubt arises as to the authenticity of the returns and the manner of their preparation specially in this case where a party watcher was allowed to take part in the preparation of the election return.

And since the return was incomplete for it lacked the data as to provincial and congressional candidates, the applicable provision would be Section 234 of the Omnibus Election Code which deals with material defects in election returns. (Lee vs. COMELEC, 405 SCRA 363) 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 equaled 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) iii. The mere fact that a candidate receive overwhelming majorities over another candidate in numerous precincts does not make the election return statistically improbable. (Ilarde vs. COMELEC, 31 SCRA 71) 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 candidates for public office had received zero votes is not enough to make the returns statistically improbable. (Ocampo vs. COMELEC, 325 SCRA 636) vi. Standing alone and without more, the bare fact that a candidate for public office received zero votes in one or two precincts cannot 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 SCRA 713)

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. 1. 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 582) 2. Questions on the appreciation of the ballots cannot be raised in a pre-proclamation case. (Alfonso vs. COMELEC, 232 SCRA777 and Sinsuat vs. COMELEC, 492 SCRA 391) 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. (Patoray vs. COMELEC, 274 SCRA 470)

iii. 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) iv. Vote buying and secrecy in the preparation of ballots are not proper grounds for a preproclamation case. (Salazar vs. COMELEC, 184 SCRA 433) v. 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) vi. Technical examination of the signatures and thumbprints of the voters to prove substitute voting is not allowed in a pre-proclamation case. (Balindong vs. COMELEC, 260 SCRA 294) vii. The padding of the list of voters cannot be raised in a pre-proclamation case, since it does not involve the election return. (Ututalum vs. COMELEC, 189 SCRA 335) viii. To look beyond or behind election returns is not a proper issue in pre-proclamation controversy. (Ocampo vs. COMELEC, 325 SCRA 636) ix. 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) 10. A pre-proclamation controversy is not the same as an action for annulment of election results, or failure of elections. (Ampatuan vs. COMELEC, 375 SCRA 503)

xi. The fact that the counting of the votes was not completed because of the explosion of a 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. i. The failure to close the entries in the election returns with the signature of the board of election inspectors, lack of seals, absence of time and date of receipt of election return by the board of canvassers, lack of signature of the 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) ii. The absence of the signature of the chairman of the BEI on the voter’s affidavits, list of voters and voting records; absence or excess of detachable coupons, discrepancies between the number 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)

Summary disposition of pre-proclamation controversy- Sec. 18, RA 7166 A All pre-proclamation controversies shall be heard summarily after due notice – first, by the board of canvassers, and then, by the COMELEC. (Chu vs. COMELEC, 319 SCRA 482) All pre and post proclamation proceedings should be resolved summarily but not ex parte. Summary

simply means with dispatch, with the least possible delay, signifying that the power may be exercised without a trial in the ordinary manner prescribed by law for regular judicial proceedings. (Velayo vs. COMELEC, 327 SCRA 713) The legislative intent behind the summary disposition of pre-proclamation controversies is to give life to the policy that the canvass and proclamation be delayed as little as possible for it is the public interest that the position for which the election was held should be filled promptly, even though the proclamation of the winning candidate would be provisional in nature, in that the same may still be subject to the results of the election protests that may be subsequently filed. (Chu vs. COMELEC, 319 SCRA 482) B. Among others, pre-proclamation controversies on election returns or certificates of canvass must be disposed of summarily by the COMELEC on the basis of the records and evidence adduced in the Board of Canvassers. However, in a separate concurring opinion, Justice Mendoza observed that Section 246 of the OEC was amended by Section 18 of RA 7166, the effects of which are: 1. In the disposition of pre-proclamation controversies involving election returns and certificates of canvass, the previous requirement of notice and hearing has been eliminated; 2. The COMELEC is directed to decide such pre-proclamation controversies solely on the basis of the records and evidence elevated to it by boards of canvassers; 3. The COMELEC is directed to decide the case within seven (7) days from receipt thereof; and 4) The COMELEC decision becomes executory upon the lapse of seven (7) days from receipt by the losing party of the decision. (Velayo vs. COMELEC, 327 SCRA 713) 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 COMELEC in 3 days. (Sec. 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] 1. An objection made after the canvass is late. (Guiao vs. COMELEC, 137 SCRA 356; Navarro vs. COMELEC, 228 SCRA 596) 2. 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. [Sec. 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 SCRA 273) A petition for correction of manifest errors in the statement of votes can be decided of the COMELEC en banc at the first instance, since it does not involve an election protest or a preproclamation 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. Corrections should be made by inserting the correction in the Statement of Votes or be preparing a new Statement of Votes incorporating the corrections. (Castromayor vs. COMELEC, 250 SCRA 298)

2. The canvass of any contested return shall be deferred and the board of canvasser shall to proceed canvass the uncontested return. [Sec. 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. [Sec. 20, c, RA 7166]

5. The board of canvassers shall summarily rule on the contested returns. [Sec. 20(d), RA 7166]

6. A party who intends to appeal should immediately inform the board of canvassers. [Sec. 20(e), RA 7166] 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. [Sec. 20(f), RA 7166] 1. Appellate Jurisdiction 1. The Regional Trial Court has no jurisdiction to review the decision of the municipal board of canvassers to correct a certificate of canvass. (Cabanero vs. CA, 232 SCRA) 2. The Regional Trial Court 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) 2. Period of Appeal

1. 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. COMELEC, 235 SCRA 436) 2. The COMELEC cannot by regulation shorten the period to question its decision before the Supreme Court for under the Constitution the period of 30 days can be shortened by law only. (Sardea vs. COMELEC, 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. (Sec. 18 and 20 (f), RA 7166)

Termination of Pre-Proclamation Case 1. 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) 2. Once a proclamation has been made, the pre-proclamation case is no longer viable and should be dismissed. (Sardea vs. COMELEC, 255 SCRA 374).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 holds true where the computation of votes was erroneous. (Mentang vs. COMELEC, 229 SCRA 669) 3. 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 vs. COMELEC, 271 SCRA 733)

Effect of Filing an election protest, quo warranto 1. As a general rule, the proper remedy after the proclamation of the winning candidate for the position contested would be to file a regular election protest or a petition for quo warranto 2. 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) It thus deprived of the authority to inquire into and pass upon the title of the protestee or the validity of his proclamation. The reasons is that once the competent tribunal has acquired jurisdiction of an election protest or a petition for quo warranto, all questions relative thereto will have to be decided in the case itself and not in another proceedings. This procedure will prevent the confusion and conflict of authority. Moreover, not all actions seeking the annulment of proclamation suspend the running of the period for filing an election protest or a petition for quo warranto. (Villamor vs. COMELEC, 496 SCRA 334)

3. 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) 4. 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.(Samad vs. COMELEC, 224 SCRA 631) 5. As held in Matalam vs. COMELEC, 271 SCRA 733, where it becomes apparent that a preproclamation controversy is inadequate, they should immediately choose another timely remedy like a petition to annul election results or to declare a failure of election or even election protest, so that the election irregularities may be fully ventilated and properly adjudicated by the competent tribunal. 6. There is no law or rule prohibiting the simultaneous prosecution or adjudication of preproclamation controversies and elections protests. Allowing the simultaneous prosecution scenario may be explained by the fact that pre-proclamation controversies and election protest differ in terms of the issues involved and the evidence admissible in each case, and the objectives each seeks to achieve. Moreover, the Court, under certain circumstances, even encourages the reinforcement of a pre-proclamation suit with election protest. Since they have different causes of action, they can proceed independently. (Tan vs. COMELEC, 507 SCRA 352) Continuance of the Case If the petition appears meritorious on the basis of the evidence presented so far, the COMELEC or the Supreme Court may order the case to continue. (Sec. 16, RA 7166)

Proclamation 1. During the pendency of a pre-proclamation contest the Board of Canvassers shall not make any proclamation without any authorization from the COMELEC.(Jamil vs. COMELEC, 283 SCRA 349 and Munoz vs. COMELEC, 495 SCRA 407) 2. Proclamation may be made if the contested returns will not adversely affect the results of the elections. [Sec. 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. (Sec. 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, 235 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)

XIII. ELECTION CONTESTS A. Jurisdiction 1. 1. 2. 2. 3. 4. 1. 2. 3. 5.

Supreme Court (Presidential Electoral Tribunal) President Vice-President (Sec. 4, Art. VII, Phil. Constitution) Senate Electoral Tribunal – Senators (Sec. 17. Art VI, PC) House of Representatives Electoral Tribunal – Congressmen (Sec. 17, Art. VI, PC; Sampayan vs. Daza, 213 SCRA 807) Commission on Elections Regional officials Provincial officials City officials (Sec. 2(2), Art. IX-C, PC; Sec. 249 BP 881) Regional Trial Court– Municipal officials (Sec. 2(2), Art. IX-C, PC; Sec. 251, BP 881; Papandayan vs. COMELEC, 230 SCRA 469) Under SC AO 54-2007, the Supreme Court designated 111 regional trial courts to serve as special courts to handle election contests involving municipal officials. All single sala courts are considered special courts. In multiple sala areas where no special courts had been designated, the election cases would be raffled to the regular courts. 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) 7. Metropolitan Trial Court, Municipal Circuit Trial Court, Municipal Trial Court – Sangguniang Kabataan (Sec. 1, RA 7166)

B. Action which may be filed 1. 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 grounds of fraud, terrorism, irregularities or illegal acts committed before, during or after the casting and counting of votes.

iii. Except for President, Vice President and Senators, within 10 days from the proclamation of the results of the election. 2. 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. 3. Procedure 1. Period of filing contest 1. Periods 1. 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) 2. 1. 2. 3. 4. 5. 6. 7.

Senators Protest – 15 days (Rule 14, Revised Rules of Senate Electoral Tribunal) Quo Warranto – 10 days (Rule 15, Revised Rules of Senate Electoral Tribunal) Congressman – 10 days (Rule 16 and 17, 1998 Rules of House of Represntatives Electoral Tribunal) Regional, provincial and city officials – 10 days (Secs. 250 and 253, BB 881; Republic vs. Dela Rosa, 232 SCRA 78) Municipal officials – 10 days (Secs. 251 and 253, BP 881) Barangay officials – 10 days (Secs. 252 and 253, BP 881) Sangguniang Kabataan – 10 days (Sec. 1 RA 7808)

2. Exceptions 1. The period to file an election protest or quo warranto case is suspended from the filing of a preproclamation case until receipt of the order dismissing the case. (Sec. 248, BP 881; Gatchalian vs. CA, 245 SCRA 208) 2. 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) 3. 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 or resolution of a pre-proclamation case. (Roquero vs. COMELEC, 289 SCRA 150) 4. The period to file an election protest is suspended by the filing of a petition to annul the proclamation of the winner. (Manahan vs. Bernardo, 283 SCRA 505)

5. 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 left in case of dismissal. (Roquero vs. COMELEC, 289 SCRA 150) 6. Where the evidence of lack of Filipino citizenship of a provincial official was discovered only 8 months after his proclamation, the quo warranto case should be allowed even if it was filed more than 10 days after his proclamation. (Frivaldo vs. COMELEC, 174 SCRA 245) 7. The filing of a motion for reconsideration, which is a prohibited pleading, does not toll the running of the period to file an appeal. (Villamor vs. COMELEC, 496 SCRA 334) 2. Protestant or Petitioner 1. President and Vice President 1. Protest – Candidate with second or third highest number of votes (Rule 14, Rules of Presidential Electoral Tribunal and Poe vs. Macapagal-Arroyo, 454 SCRA 142) 2. Quo Warranto – any voter (Rule 15, Rules of Presidential Electoral Tribunal) 2. Senator 1. Protest – any candidate (Rule 14, Revised Rules of Senate Electoral Tribunal) 2. Quo Warranto – any voter (Rule 15, 1998 Rules of Senate Electoral Tribunal) 3. Congressman 1. Protest – Any candidate (Rule 16, 1998 Rules of House of Representatives Electoral Tribunal) 2. Quo Warranto – Any voter (Rule 17, 1998 Rules of House of Representatives Electoral Tribunal) 4. Regional, Provincial, City officials 1. Protest – any candidate (Sec. 250, BP 881) 2. Quo Warranto – any voter (Sec. 253, BP 881) 5. Municipal officials 1. Protest – any candidate for the same office with the second or third highest number of votes For multi-slot positions, only four candidates following the last-ranked winner. (New SC Rules of Procedure for Election Contest Involving Municipal Officials) 2. Quo Warranto – any voter (Sec. 253, BP 881)

6. Barangay officials 1. Protest – any candidate (Sec. 252, BP 881) 2. Quo Warranto- any voter (Sec. 253, BP 881) 3. Allegations in Protest 1. An election protest should contain the following jurisdictional allegations: 1. The protestant is a candidate who duly filed a certificate of candidacy and was voted for in the election. 2. The protestee has been proclaimed elected. 3. The date of proclamation. (Miro vs. COMELEC, 121 SCRA 466) and

4. The precincts where the alleged fraud or irregularity took place. 2. Substantial compliance is sufficient. Thus the following allegations sufficiently comply with the first requirement. 1. The protestant received a certain number of votes. (Anis. Vs. Contreras, 55 Phil. 929) 2. The protestant finished second in the election. (Ali vs. CFI Of Lanao, 80 Phil 506) 3. The protestant was a candidate voted for in the election with a valid certificate of candidacy for mayor. (Pamania vs Pilapil, 81 Phil 212 iv. The protestant was one of the registered candidates voted for and he received a certain number of votes. (Jalandoni vs. Sarcon, 94 Phil 266) v. The protestant was the official candidate of a particular political party and received a certain number of votes. (Maquinay vs. Bleza, 100 SCRA 702) vi. The protestant was a candidate for governor and was voted for. (Macias vs. COMELEC, 182 SCRA 137) c. 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) 4. Form and Substance An election protest which does not specify the precinct where the alleged irregularities occurred is fatally defective. This is a fatal omission, as it goes into the very substance of the protest. Under Section 21 of the Revised Rules of Procedure of the HRET, insufficiency in form and substance of the petition constitutes a ground for the immediate dismissal of the petition. (Pena vs. HRET, 270 SCRA 340) 5. Verification In the verification, private respondent (protestant) merely stated that he caused the preparation of his petition and he has read and understood all the allegations therein. But when he 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 as an unsigned pleading and must be dismissed.(Soller vs. COMELEC, 339 SCRA 685) But in Baddiri vs. COMELEC, 459 SCRA 808, it was held the COMELEC has discretion to liberally construe its rules. Thus, it may suspend its Rules or any portion thereof in the interest of justice. 6. Certificate of Absence of Forum Shopping a. 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) b. The requirement that every initial pleading should contain a certification of absence of forum shopping applies to election cases for Circular No. 04-94 does not distinguish. (Loyola vs. CA, 245 SCRA 477; Tomarong vs. Lubguban, 269 SCRA 624)

1. 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. (Loyola, supra) The filing of the certification after the period for filing a protest is not a substantial compliance. (Tumarong, supra) 2. But in Jaramilla vs. COMELEC, 414SCRA337, it was held that the COMELEC has the authority suspend the reglementary period provided by the rules, or the requirement of certification on nonforum shopping in the interest of justice and speedy resolution of cases before it. 3. The strict application of the non-forum shopping rule in election contest would not work to the best interest of the parties and the electorate. An election contest, unlike an ordinary civil action, is clothed with a public interest – it involves not only the adjudication of private and pecuniary interests 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) 4. The requirement under Administrative Circular No. 04-94 for a certificate of non-forum shopping is mandatory. The subsequent compliance with said requirement does not excuse a party’s failure to comply therewith in the first instance. In those cases where the Supreme Court excused the noncompliance with the requirement of the non-submission of a certificate of non-forum shopping, it found special circumstances or compelling reasons which made the strict application of said Circular clearly unjustified or inequitable. In this case however, the petitioner offered no valid justification for her failure to comply with the Circular. Hence, the submission by the petitioner of the requisite certificate after the ten-day period for the filing of election protest did not operate as a substantial compliance with the Circular. (Batoy vs. RTC Branch 50, Laoay, Bohol, 397 SCRA 506) 7. Payment of Docket Fee A court acquires jurisdiction over any case only upon the payment of the prescribed docket fee. (Soller vs. COMELEC, 339 SCRA 685) Failure to pay filing fees will warrant outright dismissal of the action and the election tribunal has no jurisdiction over the case. (Banaga vs. COMELEC, 336 SCRA 701) But in Jaramilla vs. COMELEC, 414 SCRA 337, it was held that the COMELEC is not constrained to dismiss a case before it by reason of non-payment of filing fees. The COMELEC has the discretion whether to entertain the petition or not in case of non-payment of legal fees. And even if it were not afforded such discretion, it is authorized to suspend its rules or any portion thereof in the interest of justice. The date of the payment of the filing fee is deemed the actual date of the filing of the lection protest and must be viewed vis-à-vis Section 3, Rule 25 of the COMELEC Rules of Procedure which provides that the petition shall be filed within ten (10) days following the date of the proclamation of the results of the election. Hence, the subsequent payment of the filing fee on June 6, 1997, did not cure the jurisdictional defect because the said date which is deemed the actual date of filing the election protest is twenty five (25) days after the proclamation of the results of the lection on

May 12, 1997 and way beyond the ten-day reglementary period to file the same. (Melendres vs. COMELEC, 319 SCRA 262) The rule prescribing the ten-day period is mandatory and jurisdictional and the filing of an election protest beyond the period deprives the court of jurisdiction over the protest. Violation of this rule should not be taken lightly nor should it be brushed aside as a mere procedural lapse that can be overlooked. The rule is not a mere technicality but an essential requirement, the non-compliance of which would oust the court jurisdiction over the case. Relatedly, if the docket fees are not paid on time, even if the election protest is timely filed, the court is deprived of jurisdiction over the case.(Id.)

The Supreme Court’s decision in Pahilan and Gatchalian bar any claim of good faith, excusable negligence or mistake in any failure to pay the full amount of filing fees in election cases. Clearly then, the Court would no longer tolerate any mistake in the payment of the full amount of filing fees for election cases and any error in the payment of filing fees in election cases is no longer excusable. Where 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) 8. 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) 9. Abandonment A defeated candidate for president who filed an election protest and ran for senator should be deemed to have abandoned the protest. The protest is rendered moot and academic by its abandonment by the protestant as a consequence of her election and assumption of office as senator and her discharge of duties and functions thereof. (Santiago vs. Ramos, 253 SCRA559)

10. Expiration of Term Expiration of the term of office contested in the election protest has the effect of rendering the same moot and academic and is, therefore, dismissible on that ground unless the rendering of the decision on the merits would be of practical value. (Malaluan vs. COMELEC, 254 SCRA 397)

NOTE: *Instances when jurisdiction of the Court is not acquired

1. When election protest is filed beyond the ten-day period from proclamation; and 2. When filing fee is not paid, or paid insufficiently, or paid in full but beyond the ten-day period to file the protest. *Other instances when election protest is dismissible (1) Defective verification (2) Failure of protestant to comply with Adm. Cir. No. 04-94 3. Failure of protestant to deposit revisors fee within three (3) days after being required by the Court. 4. When election protest is insufficient in form and substance 5. When protestant abandons/withdraws the protest 6. When the election protest has been deemed moot and academic by the expiration of the term of office contested in the protest unless the rendering of decision on the merits would be of practical value. 11. Substantial Amendments/Change of Theory Substantial amendments to the protest may be allowed only within the ten-day period after proclamation for filing protest. (Pena vs. HRET, 270 SCRA 340) A protestant’s radical shift in his cause of action from the original and traditional ballot revision process to precinct-level document based anomalies – which broadens the scope of the electoral protest or introduce additional cause of action constitutes substantial amendment. As such it should be subjected to the rule that substantial amendments may be allowed only within the ten (10) day prescriptible period from proclamation. (Arroyo vs. HRET, 224 SCRA 384) 12. Joinder of election protest and quo warranto case 1. An election protest and a 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 20, 1957) 2. If they were joined in an action, they should be ordered separated. (Pacal vs. Ramos, 81 Phil 30)

13. 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) Section 1, Rule 13 of the COMELEC Rules of Procedure which provides that a motion to dismiss is a prohibited pleading refers only to proceedings filed before the COMELEC. No where in the COMELEC Rules of Procedure is it provided that motions to dismiss and bill of particulars are not allowed in the election protest or quo warranto cases pending before regular courts.

Constitutionally speaking, the COMELEC cannot adopt a rule prohibiting the filing of a certain pleading in the regular courts. The power to promulgate rules concerning pleadings, practice and procedure in all courts is vested in the Supreme Court. (Maruhom vs. COMELEC, 331 SCRA 473) 14. Deferment of counter-protest Where protestee refuses to allow his counter-protested precincts to be revised except after a showing that the protestant leads by a margin of at least one (1) vote after revision of the protestant’s protested precinct, such refusal is deemed an abandonment or withdrawal of the counter-protest. Protestee cannot insist later that the counter-protested precincts be revised. (Abeja vs. Tanada, 236 SCRA 60)

15.Facsimile Transmission of Pleadings Filing a pleading by facsimile transmission is not sanctioned by the COMELEC Rules of Procedure, much less by the Rules of Court. A facsimile is not a genuine and authentic pleading It is, at best, an exact copy preserving all the marks of an original. Without the original, there is no way of determining on its face whether the facsimile pleading is genuine and authentic and was originally signed by the party and his counsel. It may, be a sham pleading. The uncertainty of the authenticity of a facsimile pleading should have restrained the COMELEC from acting on the petition and issuing the questioned order. The COMELEC should have waited until it received the petition by registered mail. (Garvida vs. Sales, 271 SCRA 767) 16. Opening of Ballot Boxes When an election protest is filed, the ballot boxes should be opened without requiring proof of irregularities, and misappreciation of ballots. (Crispino vs. Panganiban, 219 SCRA 621; Manahan vs. Bernardo, 283 SCRA 505) Where there is an allegation in an election protest that would require the perusal, examination or counting of ballots as evidence, it is the ministerial duty of the trial court to order the opening of the ballots and the examination and counting of ballots deposited therein. (Arao vs. COMELEC, 210 SCRA 290 and Miguel vs. COMELEC, 335 SCRA 172) The opening of ballot boxes and examination of ballots is the simplest and most expeditious means to determine falsity/truth of allegations. To require parol or other evidence on alleged irregularities before opening the ballot box would have given the protestee ample opportunity to delay the proceedings. Hence, there is grave abuse of discretion when a court, instead of ordering the opening of ballot boxes to revise the ballots, orders the conduct of preliminary hearing on election fraud, anomalies and irregularities recited in the protestant’s pleading, requiring protestant to adduce documentary, competent and definite evidence that would traverse the Narrative Report of the Election Officer that the election was clean, honest and peaceful. (Miguel vs. COMELEC, supra) The revision of the ballots in an election protest filed with the COMELEC should be held in Manila. (Cabagnot vs. COMELEC, 260 SCRA 503)

17. Appreciation/Authentication of Ballots Evidence aliunde is not necessary to enable the court to determine authenticity of ballots and genuineness of the handwriting on the ballot. A thorough examination of the ballots by the Court is already sufficient. (Bacobo vs. COMELEC, 191 SCRA 576) Handwriting expert is not necessary to examine and compare handwriting on ballots. (Punzalan vs. COMELEC, 289 SCRA 702, citing Section 22, Rule 132 of the Revised Rules of Evidence) There shall be a liberal construction in appreciation of ballots to the end that the will of the electorate in the choice of public official may not be defeated by technical infirmities. (Punzalan vs. COMELEC, 289 SCRA 702 and Bince vs. COMELEC, 242 SCRA 273) Failure to authenticate the ballot with signature of Chairman of the BEI as required by RA 7166 and by COMELEC resolution is not a ground to invalidate ballot. A ballot without BEI Chairman’s signature at the back is valid, genuine and not spurious, provided that it bears any one of these other authenticating marks, to wit (a) the COMELEC watermark, or (b) the signature or initials, or thumbprint of the Chairman of the BEI, and (c) in those cases where the COMELEC watermarks are blurred or not readily apparent to the naked eye, the presence of red and blue fibers in the ballots. (Libanan vs. HRET, 283 SCRA 520 and Malabaguio vs. COMELEC, 346 SCRA 699) 18. Motion to Photocopy Ballots Just as the court may allow, for good cause shown, the reproduction of relevant evidence in the custody of any party, so it may allow the same with respect to evidence in its custody. Although the grant of such motion is admittedly discretionary on the part of the trial court judge, nevertheless, it cannot be arbitrarily or unreasonably denied because to do so would bar access to relevant evidence that may be used by a party-litigant and hence, impair his fundamental right to due process. In this case, photocopying the ballots is the only way by which the petitioner can secure the evidence needed to support his claim that certain irregularities in the voting took place. Since after the revision and recount, the ballots are required to be returned to their respective ballot boxes, the photocopies will serve as admissible secondary evidence which may be used for future reference by the party-litigants, as well as the court itself, in the appreciation of the ballots cast. Equally important is the fact that by securing a certified true copy of the ballots subject of the controversy, all parties concerned will be assured that, in case of loss or destruction of the ballots reliable copies would still be available. (Alberto vs. COMELEC, 311 SCRA 215) 19. 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) 20. Answer/Counter Protest

An answer filed 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 a general denial 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) 21. Substitution 1. Even if the protestee has resigned, the protest should continue, as a favorable judgment will entitle 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) 3. 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. Hence, the widow may no longer prosecute the deceased protestee’s counterclaim for damages against protestant for that was extinguished when death terminated his right to occupy the contested office. (Abeja vs. Tanada, 236 SCRA 60) 4. The death of the protestant is not a ground to dismiss the election protest nor oust the court of its jurisdiction to decide the election contest. The Vice-Mayor elect has the status of a real party-ininterest in the continuation of the proceeding and is entitled to intervene therein. For if the protest succeeds and the protestee is unseated, the Vice-Mayor succeeds to the office of the Mayor that becomes vacant if the duly elected one cannot assume the post. Section 17 of Rule 3 of the Revised Rules of Court which requires a 30-day period for substitution of parties by reason of death may be applied by analogy or in suppletory character in this case. (De Castro vs. COMELEC, 267 SCRA 806)

5. But in Poe vs. GMA, 454 SCRA 142, the Supreme Court held that, pursuant to Rule 14 of the Presidential Electoral Tribunal, only the registered candidate for President and Vice President of the Philippines who received the second or third highest number of votes may contest the election of the President or Vice President, as the case may be, by filing a verified petition with the Clerk of the PET within 30 days after the proclamation of the winner. Pursuant to this rule, only two persons, the 2nd and 3rd placers, may contest the election. By this express enumeration, the rule makers, have in effect determined the real parties in interest concerning the on-going election contest. It envisions a scenario where, if the declared winner had not been truly voted upon y the electorate, the candidate who received that 2nd or 3rd highest number of votes would be the legitimate beneficiary in a successful election contest.

While the right to a public office is personal and exclusive to the public officer, an election protest is not purely personal and exclusive to the protestant or to the protestee such that the death of either would oust the court of all authority to continue the protest proceedings. The Court has allowed substitution and intervention but only by the real party in interest. Where the widow is not a real party in interest, Court has denied substitution by the wife or heirs. (Ibid.)

22. Summary Judgment The rules on summary judgment have no application to election protests for “beyond the narrow personal stakes of the opposing candidates, the rights of the electorate, or the people, are involved. Expediency is not an excuse for not pursuing to the maximum efforts necessary in the ascertainment of the real and actual winner in the election, by examining the best evidence available- the ballots. By rendering a summary judgment, the trial court denied itself the chance to directly scrutinize and appreciate the primary evidence of the true will of the voters – the ballots. Hence, in an election protest, the trial court may not make a finding that there is no genuine issue to be resolved until and unless it shall have given the protestant a chance to substantiate his protest. The trial court committed grave abuse of discretion when it summarily dismissed the election protest based merely on interrogatories where both of them had no participation. There is no showing in the records that private respondent either agreed to the adoption of, or was given opportunity to answer the interrogatories which clearly constitutes a violation of due process. Likewise, an election protest cannot be decided by summary judgment, as summary judgment may be used only as between parties to a case. (Dayo vs. COMELEC, 199 SCRA 449) 23. 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. (Cereno vs. Dictado, 160 SCRA 759)

24. Certiorari Under Sec. 50 of BP 697, the COMELEC has jurisdiction over petitions for certiorari, prohibition and mandamus involving election cases pending before courts whose decision are appealable 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 time to answer, the COMELEC cannot affirm the decision of the merits in the election protest. (Acosta vs. COMELEC, 293 SCRA 578) 25. Evidence

The genuineness of the handwriting in the ballots can be determined without calling handwriting experts. (Erni vs. COMELEC, 243 SCRA 706) 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 one person or were marked on the basis of mere photo-copies, as they are not the best evidence. (Nazareno vs. COMELEC, 279 SCRA 89) 26. Demurrer A motion to dismiss for insufficiency of evidence of the protestant after the protestant has rested is a demurrer to the evidence. If it was granted but reversed on appeal, the protestee is deemed to have waive the right to present evidence. (Enojas vs. COMELEC, 283 SCRA 229)The Supreme Court ruled that the nature of election protest differ from an ordinary civil action. The Rules of Civil Procedure on demurrer to evidence cannot apply to election cases even by analogy or in a suppletory character, especially because the application of said Rules would not be practical and convenient. In this case, the COMELEC en banc shall decide motions for reconsideration only of “decisions” of a Division, meaning those acts of final character. Clearly, the assailed order denying petitioner’s demurrer to evidence, being interlocutory, may not be resolved by the COMELEC en banc. (Gementiza vs. COMELEC, 353 SCRA 724) 27. Decision 1. A petition or protest contesting the election of barangay officials should be decided by the municipal or metropolitan trial court within fifteen (15) days from its filing. Courts are mandated to give preference to election contests over all other cases, except petitions for habeas corpus and judges are enjoined to hear and decide election contests without delay. The period provided by law must be observed faithfully because an election case involves public interests. Time is of the essence in its disposition since uncertainty as to who is the real choice of the people for the position must be soonest be dispelled.(Sanchez vs. Alaan, 501 SCRA 11

b. Judges of special courts involving municipal officials are directed to resolve cases within six months after filing. Extensions beyond the six- month period would be subject to the approval of the Supreme Court. Should the judge fail to resolve the election contest within six months, he would be placed under preventive suspension and relieve of all duties except to decide on the case. The judge would also be subjected to disciplinary action. (New SC Rules of Procedure for Election Contest Involving Municipal Officials) c. A defeated candidate cannot be deemed elected to the office in case of disqualification of the winning candidate. (Labo vs. COMELEC, 211 SCRA 297 and Aquino vs. COMELEC, 248 SCRA 400)

d. For the position of Punong Barangay or SK Chairman, both of which has no vice position, the official who can legally succeed in case of vacancy therein is the kagawad who got the highest number of votes. e. 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) 28. Award of Damages 1. Actual or compensatory damages may be awarded in all election contests or in quo warranto proceedings in accordance with law, i.e., the provisions of the Civil Code pertinent to damages. (Sec. 259, BP 881) 2. 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) c. Under Sec. 264, par. 1 of BP 881, as amended, the award of damages is not among the imposable penalties for the commission of any of the election offenses thereunder by an individual. (Regalado vs. CA, 325 SCRA 516) 3. The mere fact that the decision in favor of the protestant was reversed on appeal is not sufficient basis for ruling that the protestee should be awarded attorney’s fees, because the protest was filed for harassment. (Malaluan vs. COMELEC, 254 SCRA 397)

29. Execution of Judgment Pending Appeal BP 881 and the other election laws do not specifically provide for execution pending appeal of 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 judgments 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 Section 2, Rule 39 of the 1997 Rules of Civil Procedure. Execution pending appeal should be based upon “good reasons” to be stated in a special order. The following constitute “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 (Fermo 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. (Ramas 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 SCRA 757) A motion for execution pending appeal filed after the expiration of the period to appeal can no longer be granted. (Relampagos vs. Cumba, 243 SCRA 690) A motion for execution pending appeal based on Sec. 2 of Rule 39, Rules of Court may be granted on motion of prevailing party that cites good reasons and while the court has jurisdiction over the case and in possession of either the original record or the record of appeal at the time of filing the motion. Good reasons must be stated in the order granting the motion. (Zacate vs. COMELEC, 353 SCRA 441) The requisites for the grant of execution pending appeal are: (1) there must be a motion by the prevailing party with notice to the adverse party; (2) there must be a good reason for the execution pending appeal; and 3. the good reason must be stated in a special order granting the execution pending appeal.. (Navarosa vs. COMELEC, 411 SCRA 369) 30. 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) 3. Senator – 10 days (Rule 64 of Senate Electoral Tribunal) 4. Congressmen – 10 days (Rule 74, 1988 Rules of HRET)

5. 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: 1. 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 pre-trial is not applicable to election protest. (Pangilinan vs. De Ocampo, 232 SCRA) 2. Barangay officials (Sec. 19, Rule 37 and Sec. 12, Rule 38, COMELEC Rules of Procedure) 3. Sanggunian 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 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 certiorari under 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 Supreme Court to run and expire. (Angelia vs. COMELEC, 322 SCRA 757) 30. Review 1. 1. 2. 3.

Jurisdiction Senator – Supreme Court within 60 days. (Sec. 4, Rule 65, Rules of Court) Congressman – Supreme Court within 60 days (Lerias vs. HRET; Sec. 4, Rule 65, Rules of Court) Regional, provincial and city officials – Supreme Court within 30 days (Sec. 7, Art IX-A, Phil. Const.) 4. Municipal officials 1. COMELEC within 5 days (Sec. 22 RA 7166; Sec. 3 Rule 22 of COMELEC Rules of Procedure, (Lindo vs. COMELEC, 194 SCRA 25 and Zamora vs. COMELEC, 442 SCRA 397) 2) Supreme Court within 30 days (Rivera vs. COMELEC, 199 SCRA 178)

v. Barangay officials

1) 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 4 05]

2) Supreme Court within 30 days (Flores vs. COMELEC, 184 SCRA 484) vi. Sangguniang Kabataan

1. COMELEC within 5 days (Sec. 1 RA 7808) 2) Supreme Court within 30 days (Flores vs. COMELEC, 184 SCRA 484)

2. 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)

3. Failure to Pay Appellate Docket Fee 1. 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)

2. 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)

3. Where the appeal involved a barangay election, appeal must be made to the COMELEC within five days from promulgation. Appeal fee must be paid within the same period in the cash division of the COMELEC. While the notice of appeal was filed within the reglementary period and appeal fees were paid on time the payment was made with the cashier of METC and not with cash division of COMELEC. After realizing his mistake, appellant paid the total amount of appeal fee on the ninth day to the COMELEC. Dismissal of appeal by the COMELEC is proper for failure to pay appeal fees on time.(Villota vs. COMELEC, GR No. 146724, August 10, 2001) 4. 4. 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)

XIV. ELECTION OFFENSES 1. Criminal and electoral 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 disqualified from office. This is done through administrative proceeding which is summary in character and requires only a clear preponderance of evidence. Thus, under Section 4 of the COMELEC Rules of Procedure, petitions for disqualifications “shall be heard summarily after due notice.” In a disqualification

case, it is the electoral aspect that is involved under which an erring candidate may be disqualified even without prior criminal conviction. (Sunga vs. COMELEC, 288 SCRA 76) The COMELEC is mandated to dismiss a complaint for disqualification of a candidate who has been charged with an election offense under Section 251 of the OEC but who has already been proclaimed as winner by the Board of Canvassers. But is the COMELEC finds that there is probable cause, it shall order its Law Department to file appropriate Information with the Regional Trial Court which has territorial jurisdiction over the offense, but shall nonetheless, order the dismissal of the complaint for disqualification, without prejudice to the outcome of the criminal case. If the trial court finds the accused guilty beyond reasonable doubt of the offense charged, it shall order his disqualification pursuant to Section 264 of the OEC as amended by Section 46 of RA 8189. (Albana vs. COMELEC, 435 SCRA 98)

2. Administrative liability in election related cases 1. A first level court has no jurisdiction to order the suspension of the canvassing of election returns. Libardos vs. Casar, 234 SCRA 13) 2. A judge who grants a petition for inclusion of voters by simply conducting an interview of the petitioners is administratively liable. (Mercado vs. Judge Dysangco, A.M. No. MTJ-00-1301, July 30, 2002) 3. By annulling protestee’s proclamation as duly elected Punong Barangay, despite being aware of the fact that his court had no power to do so, not only is the judge guilty of grave abuse of authority, he also manifests unfaithfulness to a basic legal rule as well as injudicious conduct.. Whenever an application for TRO is filed, the Court may act on the application only after all parties have been notified and heard in a summary hearing. Issuing the TRO after receiving evidence ex parte is grave abuse of authority, misconduct and prejudicial to the proper administration of justice.(Gustilo vs. Judge Real, 353 SCRA 1)

4. A lower court judge who issued a writ of injunction against the COMELEC, his court being of subordinate status and rank vis-à-vis the COMELEC, is guilty of gross ignorance of the law. The judge should have known that COMELEC, since its creation, has been accorded full discretion given its constitutional mandate to enforce and administer all laws relative to the conduct of election, plebiscite, initiative, referendum and recall.(COMELEC vs. Judge Datu Imam, 304 SCRA 106) 5. Violation of Section 232 of the OEC, which makes unlawful for the persons referred therein to enter the canvassing room, is a non-criminal act but certainly warrants, after proper hearing, the imposition of administrative penalties. Under Section 2 of Article IX-C of the Constitution, the COMELEC may recommend to the President the imposition of disciplinary action on any officer or employee the COMELEC has deputized for violation of its directive. Also, under the Revised Administrative Code, the COMELEC may recommend to the proper authority the suspension or removal of any government official or employee found guilty of violation of election laws or failure to comply with COMELEC orders or findings. (Malinias vs. COMELEC, 390 SCRA 480)

3. Persons criminally liable Not only principals but also accomplices and accessories, as defined in the Revised Penal Code, are criminally liable for election offenses. If one responsible be a political party or an entity, its president or head, the officials and employees of the same, performing duties connected with the offense committed and its members who may be principals, accomplices or accessories shall be liable, in addition to the liability of such party or entity. Transactional Immunity. Those who have committed election offenses but volunteer to give information and testify on any violation of said law in any official investigation, or proceeding with reference to which his information and testimony is given transactional immunity. The testimony of a voluntary witness in accord with his sworn statement operates as a pardon for the criminal charges to which it relates. If such witness later refuses to testify or testifies but contrary to his affidavit, he loses his immunity from suit and may be prosecuted for violation of Sec. 261 (a) and (b) of the OEC, perjury under Art. 183 of the Revised Penal Code, or false testimony under Art. 180 of the same Code. (COMELEC vs. Espanol, 417 SCRA 554) The power to grant exemption is vested solely on the COMELEC. This power is concomitant with its authority to enforce election laws, investigate election offenses and prosecute those committing the same. The exercise of such power should not be interfered with by the trial court. Neither may the Supreme Court interfere with the COMELEC’s exercise of its discretion in denying or granting exemptions under the law, unless the COMELEC commits a grave abuse of discretion amounting to excess or lack of jurisdiction. (Ibid.) 4. Penalties As a general rule, the penalty for an election offense under the Code, except that of failure to register and failure to vote, is imprisonment of not less than one year but not more than six years and the offender shall not be subject to probation and shall suffer disqualification to hold public office and deprivation of the right of suffrage. However, RA 9369 upgraded the penalty to 8 years and 1 day to 12 years for the offense of failure to post voters list, stealing ballots, election returns and certificates of canvass and, to life imprisonment for the special election offense of electoral sabotage. 5. Investigation and Prosecution: COMELEC Jurisdiction 1. The Constitution empowers the COMELEC to investigate and when appropriate, prosecute election offenses. (Art. IX-C, 2(6)). The conduct of preliminary for the purpose of determining whether or not there is probable cause to believe that the accused is guilty of the offense charge, and therefore, should be subjected to trial is the function of the COMELEC. (COMELEC vs. Espanol, 417 SCRA 554)

2. The COMELEC has exclusive jurisdiction to conduct preliminary investigation of and prosecute election offenses committed by any person, whether private individual or public officer or employee, and in the latter instance, irrespective of whether the offense is committed in relation to

his official duties or not. It is the nature of the offense and not the personality of the offender that matters. As long as the offense is an election offense, jurisdiction over the same rests exclusively with the COMELEC, in view of its all-embracing power over the conduct of election. [Sec 2(6), Art. IX-C, Phil. Const.; Sec. 265 BP 881; Naldoza vs. Lavilles, 254 SCRA 286) This holds true even if the offense is committed by a public officer in relation to his office. (Corpuz vs. Tanodbayan, 149 SCRA 281) 3. All that is required in the preliminary investigation is the determination of probable cause to justify the holding of petitioners for trial. Preliminary investigation is not the occasion for the full and exhaustive display of the parties’ evidence. It is for the presentation of such evidence only as may engender a well-grounded belief that an offense has been committed and accused is probably guilty thereof. The Finding of probable cause in the prosecution of election offenses rests in the COMELEC’s sound discretion. Generally, the Court will not interfere with such finding of the COMELEC absent a clear showing of grave abuse of discretion. (Baytan vs. COMELEC, 396 SCRA 703)

4. Under Section 265 of the OEC, the COMELEC, through its duly authorized legal officers, has the exclusive power to conduct preliminary investigation of all election offenses punishable under the OEC, and to prosecute the same. The acts of such deputies within the lawful scope of their delegated authority are, in legal contemplation, the acts of the COMELEC. (COMELEC vs. Espanol, 417 SCRA 554)

The COMELEC may avail of the assistance of other prosecuting arms of the government. The COMELEC can deputize prosecutors to investigate and prosecute offenses even after election. (People vs. Basilla, 179 SCRA 87) The Chief State Prosecutor, all Provincial and City Prosecutors, or their respective assistants are given continuing authority, as deputies of the COMELEC to conduct preliminary investigation of complaints involving election offenses and to prosecute the same. This authority may be revoked or withdrawn by the COMELEC anytime whenever, in its judgment, such revocation or withdrawal is necessary to protect the integrity of the COMELEC and to promote the common good, or when it believes that the successful prosecution of the case can be done by the COMELEC. (COMELEC vs. Tagle, 397 SCRA 618 When the COMELEC nullifies a resolution of the Provincial Prosecutor which is the basis of the informations for vote-buying, it, in effect, withdraws the deputation granted to the prosecutor. Such withdrawal of the deputation was clearly in order, considering the circumstances obtaining in those cases,where those who voluntarily executed affidavits attesting to the vote – buying incident became witnesses against the vote buyers now stand as accused for the same acts they had earlier denounced. What the Prosecutor did was to sabotage the prosecution of the criminal case against the “vote-buyers” and put in serious peril the integrity of the COMELEC. (Id.) 5 .In the absence of any revocation of the 1993 COMELEC Rules of Procedure delegating authority to other prosecution arms of the government to conduct preliminary investigation of complaints involving election offenses, the city prosecutor’s “continuing delegation” to prosecute a case for violation of the election gun ban stays. (Margarejo vs. Escoses, 365 SCRA 190)

6. A provincial election supervisor authorized to conduct a preliminary investigation may file a case without need of approval of the provincial prosecutor. (People vs. Inting, 187 SCRA 788) 7. 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. Silva, 286 SCRA 177) 8. 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 892) 9. Whether 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 a complaint directly with the COMELEC Law Department pursuant to Sec. 4, Rule 34 of the COMELEC Rules of Procedure. No requirement in Sec. 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 Sec. 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 Sec. 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) 10. The court in which a criminal case was filed may order the COMELEC to order a reinvestigation. (People vs. Delgado, 189 SCRA 715)

F. Jurisdiction to try the Case The Regional Trial Court shall have the exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of the Omnibus Election Code. The expanded jurisdiction of the Municipal Trial Court (RA 7691) does not include criminal cases involving election offenses, because by special provision of Section 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 six years, but “except those relating to the offense of failure to register or failure to vote.”(Juan vs. People, 322 SCRA 125) G. Preferential disposition of election offense Section 257 of the OEC requires that the election cases brought before the COMELEC shall be decided within 90 days from the date of its submission for decision. However, the “preferential

disposition” applies to cases involving violations of the election laws before the courts and not those before the COMELEC. Hence, the COMELEC did not abuse its discretion when it failed to treat the case preferentially. (Alvarez vs. COMELEC, 353 SCRA 434) H. Prescriptive period for election offenses Prescription of the crime or offense is the forfeiture or loss of the right of the State to prosecute the offender after the lapse of certain time. Election offenses shall prescribe after five (5) years from the date of their commission. If the discovery of the offense be made in an election contest proceedings, the period of prescription shall commence on the date on which the judgment in such proceedings becomes final and executory. The offense of double registration allegedly occurred on June 22, 1997 when petitioners registered for a second time in a different precinct without canceling their previous registration. At this point the period of prescription for the alleged offense started to run. However, prescription is interrupted when the proceedings are instituted against the offender. Specifically, the period of prescription is interrupted by the filing of the complaint even if it be merely for purposes of preliminary examination or preliminary investigation. The liberal construction of punitive laws in relation to the prescription of offenses cannot be invoked to prejudice the interest of the State to prosecute election offenses. (Baytan vs. COMELEC, 396 SCRA 703)

I. Conviction and Pardon 1. The necessary penalty of temporary absolute disqualification disqualifies the convict from public office and from the right to vote, such disqualification to last only during the term of sentence.

2. The accessory penalty of perpetual special disqualification for exercise of suffrage deprives the convict of the right to vote or to be elected to or hold public office perpetually, as distinguished from temporary disqualification which last during the term of the sentence. 3. The perpetual or temporary special disqualification for the exercise of the right of suffrage shall deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any popular election for any public office or to be elected to such office. 4. The President may grant pardon for those convicted of election offenses only upon the recommendation of the COMELEC. 5. A plenary pardon, granted after the election but before the date fixed by law for assuming office, has the effect of removing the disqualification prescribed by both the criminal and electoral laws. (Lacuna vs. Abes, 24 SCRA 780)

6. Where the court failed to impose the accessory penalty provided for by law, the same is deemed imposed. 7. 6. Offenses 1. Vote-buying 1. 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 elections shall create a presumption of conspiracy to bribe voters. 2. The fact that at least 20% of the precincts of the municipality, city or province to which the office aspired for by the candidates 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)

One of the effective ways of preventing the commission of vote-buying and of prosecuting those committing it is the grant of immunity from criminal liability in favor of the party whose vote was bought. This grant of immunity will encourage the recipient or acceptor to come into the open and denounce the culprit-candidate, and will ensure the successful prosecution of the criminal case against the latter. (Tagle vs. COMELEC, 397 SCRA 618) d. The traditional gift-giving by the municipality during Christmas, which was not done to induce voters for the mayor, does not constitute vote-buying. (Lozano vs. Martinez, 203 SCRA 256)

2. Appointment of New Employees The prohibition against appointment of a government employee within 45 days before regular election refers to position covered by the civil service and does not apply to the replacement of a councilor who died. (Ong vs. Martinez, 188 SCRA 830)

3. Transfer 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)

4. Unauthorized Entry into Polling Place Mere presence of an unauthorized person inside a polling place is an offense. (COMELEC vs. Romillo, 158 SCRA 716) 5. 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) 6. Carrying deadly weapon in Precinct To support a conviction carrying a deadly weapon inside a precinct under Section 261(p) of the OEC, it is not necessary that the deadly weapon be seized from the accused while he was in the precinct or within a radius of 100 meters therefrom. It is enough that the accused carried the deadly weapon “in the polling place and within a radius of 100 meters thereof” during any of the specified days and hours. (Mappala vs. Nunez, 240 SCRA 600) 7. Refusing to Credit Candidate with Vote Under Sec. 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) Under RA 9369, if these acts are perpetuated in a large scale, the same shall be considered not as an ordinary election offense under Sec 261 and/or 262 of BP 881 but a special election offense to be known as electoral sabotage and the penalty to be imposed shall be life imprisonment. 8. Switching of Ballots Switching of official ballots with simulated ballots is an election related incident, not an ordinary act of falsification of public documents, for which the COMELEC, through its authorized legal officers, has the exclusive power to conduct preliminary investigation and to prosecute.(Pena vs. Martizano, 403 SCRA 281)

9. Electoral Sabotage Under RA 9369, The Poll Automation Law, amending RA 8436, the following shall be guilty of a non-bailable special election offense to be known as electoral sabotage which is punishable by life imprisonment: 1. Any person who removes the certificate of canvass posted on the wall, whether within or after the prescribed 48 hours of posting, or defaces the same in any manner. 2. Any person who simulates an actual certificate of canvass or statement of votes, or a print or digital copy thereof. 3. The Chairman or any member of the Board of Canvassers who signs or authenticates a print of the certificate of canvass or its supporting statement of votes outside of the canvassing area. 4. When the tampering of votes, or refusal to credit the correct votes or deduct tampered votes is/are committed in the election of national elective office which is voted upon nationwide and

such acts shall adversely affect the results of the election to the said national office to the extent that losing candidate/s is/are made to appear the winner/s. 5. Regardless of the elective office involved, when the tampering of votes committed, or the refusal to credit the correct vote or to deduct tampered votes perpetrated, is accomplished in a single document and involved in the said tampering exceed 5000 votes, and the same adversely affects the true results of the election. 6. Any and all other forms of tampering increase/s and/or decrease/s perpetuated or in cases of refusal to credit the correct votes or deduct the tampered votes, where the total votes involved exceed 10,000 votes.

I. Cancellation of Certificate of Candidacy

1. The proceeding on the cancellation of a certificate of candidacy does not merely pertain to the administrative functions of the COMELEC. Cancellation proceedings involve the COMELEC’s quasi-judicial function which must first be decided by the COMELEC in division. Hence, the COMELEC en banc acted without jurisdiction when it ordered the cancellation of a candidate’s certificate of candidacy without first referring the case to a division for summary hearing. A summary proceeding does not mean that the COMELEC should throw away the requirements of notice and hearing. The COMELEC should have at least given notice to the candidate to give him the chance to adduce evidence to explain his side in the cancellation proceedings. The COMELEC has deprived the candidate of procedural due process of law when it approved the report of the Law Department without notice and hearing. (Bautista vs. COMELEC, 414 SCRA299)

2. When a candidate files his certificate of candidacy, the COMELEC has a ministerial duty to receive and acknowledge its receipt. The COMELEC may not, by itself, without the proper proceedings, deny due course to or cancel a certificate of candidacy filed in due form. A petition to deny due course to or cancel a certificate of candidacy shall be heard summarily after due notice. The law mandates that the candidates must be notified of the petition against them and should be given the opportunity to present evidence on their behalf. This is the essence of due process.(Luna vs. COMELEC, 522 SCRA 107)

In Lluz vs. COMELEC, 523 SCRA 456, the Court cited three conclusions: First, a misrepresentation in a certificate of candidacy is material when it refers to the qualification for elective office and affects the candidate’s eligibility. Second, when a candidate commits a material representation, he or she may be proceeded against through a petition to deny due course to or cancel a certificate of candidacy under Section 78, or through criminal prosecution under Section 262 for violation of Section 74. Third, a misrepresentation of a non-material fact, or a non-material misrepresentation, is not a ground to deny due course to or cancel a certificate of candidacy under Section 78. In other words, for a candidate’s certificate of candidacy to be denied due course or

canceled by the COMELEC, the fact misrepresented must pertain to a qualification for the office sought by the candidate. In the case of Macalintal vs. COMELEC, GR No. 157013, July 11, 2003, the Supreme Court ruled that Section 5(d) of RA 9189 does not violate the residency requirement in Section 1 of Article V of the Constitution. Stating that it is an exception to the residency requirement. The Constitution’s framers intended to enfranchise as much as possible all Filipino citizens abroad who have not abandoned their domicile of origin. Congress enacted the law prescribing a system of overseas absentee voting in compliance with the constitutional mandate. Such mandate expressly requires that Congress provide a system of absentee voting that necessarily presupposes that the “qualified citizen of the Philippines abroad” is not physically present in the country. Under RA 9189, an immigrant may still be considered a “qualified citizen of the Philippines abroad” upon fulfillment of the requirement of registration under the new law for the purpose of exercising their right of suffrage. The qualified Filipino abroad who executed the affidavit is deemed to have retained his domicile in the Philippines. He is presumed not to have lost his domicile by his physical absence from this country. His having become an immigrant does not necessarily imply an abandonment of his intention to return to his domicile of origin, the Philippines. He must be given the opportunity to express that he has not actually abandoned his domicile in the Philippines by executing the affidavit. The execution of the affidavit is not the enabling or enfranchising act. The affidavit is not only proof of the intention of the immigrant or permanent resident to go back and resume residency in the Philippines, but more significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of origin. In the same case, the Court also ruled that Section 25 of the same law empowering Congress through the Joint Congressional Oversight Committee to exercise the power to review, revise, amend and approve the Implementing Rules and Regulations that the COMELEC shall promulgate, is unconstitutional This portion of the law is violates the independence of the COMELEC as it restricts the COMELEC’s constitutional domain to enforce and administer all election laws.