Election-laws .docx

ARTICLE XXI. ELECTION CONTESTS Sec. 249. Jurisdiction of the Commission. - The Commission shall be the sole judge of all contests relating to the elections, returns, and qualifications of all Members of the Batasang Pambansa, elective regional, provincial and city officials. Sec. 250. Election contests for Batasang Pambansa, regional, provincial and city offices. - A sworn petition contesting the election of any Member of the Batasang Pambansa or any regional, provincial or city official shall be filed with the Commission by any candidate who has duly filed a certificate of candidacy and has been voted for the same office, within ten days after the proclamation of the results of the election. Sec. 251. Election contests for municipal offices. - A sworn petition contesting the election of a municipal officer shall be filed with the proper regional trial court by any candidate who has duly filed a certificate of candidacy and has been voted for the same office, within ten days after proclamation of the results of the election. Sec. 252. Election contest for barangay offices. - A sworn petition contesting the election of a barangay officer shall be filed with the proper municipal or metropolitan trial court by any candidate who has duly filed a certificate of candidacy and has been voted for the same office, within ten days after the proclamation of the results of the election. The trial court shall decide the election protest within fifteen days after the filing thereof. The decision of the municipal or metropolitan trial court may be appealed within ten days from receipt of a copy thereof by the aggrieved party to the regional trial court which shall decide the case within thirty days from its submission, and whose decisions shall be final.

Jurisdiction of Comelec: Reyes v. Comelec Which has jurisdiction when a candidate took his oath and assumed the office and have been proclaimed as the winner? A: It depends on the position: If he is a barangay official, MTC. If he is municipal official, RTC. (appeal is to the COMELEC, the appeal should be affirmed) If he is a provincial official, COMELEC (final) Appeal: Certiorari, under Rule 64, Supreme Court. Velasco v. Belmonte Disqualification before his assumption of office but the Speaker of the House received such notice of disqualification after he assumed the office and taken his oath: HRET There can be no valid assumption of office since the COC was cancelled way before the assumption of office and according to the SC the earliest possible time the HRET assumption of office is as of June 30 next following the election. How about if he is disqualified after the assumption of office, which has jurisdiction? HRET shall take the jurisdiction. What if the COMELEC issued an order of decision disqualifying the candidate before his assumption of duty, however before the Speaker of the House ordered the disqualifying decision, the member took his oath of office, has been proclaimed and assumed position, which has jurisdiction? Still, the HRET because of the assumption of office. Legaspi v. COMELEC First Scenario: In original case, if the necessary majority cannot be had, after rehearing the case with the same result, the original case shall be dismissed and it should be qualified. Second Scenario: If its on appeal, the appealed decision shall be affirmed. (ex: decision of the RTC shall be affirmed) Third Scenario: All incidental matters shall be denied. 1

Ex: Such as Temporary Restraining Order holding abeyance of the proclamation of the candidate. = The candidate shall be proclaimed. When the necessary majority cannot be had, then it shall be denied. Former Ruling: It applied the original case, applying the first scenario, wherein it was dismissed. They granted the disqualification and it was brought to the en banc for MR. Motion for reconsideration is a continuation of the original case, from the first division to the en banc, the en banc deliberation is not anew deliberation but a continuation of the deliberation of the special first division, dismissing the disqualification of the candidate. Present Ruling: The MR is only an incidental matter, then we applied the third scenario, which is dismissal when the necessary majority cannot be had. The decision of the COMELEC is disqualifying the candidate and the MR which is an incidental matter is denied. Qualification and Disqualification VOTERS Section 4, RA 10742 As to Sangguniang Kabataan..

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RULE II THE KATIPUNAN NG KABATAAN AND THE SANGGUNIANG KABATAAN SECTION. 4. Katipunan ng Kabataan (KK). – (a) There shall be in every barangay a KK to be composed of all citizens of the Philippines residing in the barangay for at least six (6) months, who are fifteen (15) but not more than thirty (30) years of age, and who are duly registered in the list of voters of the Commission on Elections (COMELEC) and/or based on the list of members of the KK under the custody of the secretary of the SK. The rules and procedures to be followed in the registration of voters, in connection with the SK election shall be in accordance with existing laws. (b) The secretary of the SK shall continuously update the list of members of the KK. To

support the application for membership in the KK, the original or certified true copy of birth certificate or any valid ID or any legal document indicating the date of birth shall be presented. The Registry of Barangay Inhabitants (RBI) shall be used as reference for residency of the applicant. SC: The OEC has empowered the COMELEC to always change deadlines. Even though the law set it to 90 days, and the COMELEC changed it to 120 days. (an earlier deadline).

Main Issue: How political parties affect candidates? In a party list system, political parties cannot seat as an entity or seat in a government EXCEPT their representatives. Exception: Party List System in Election wherein political parties can be elected in their own names and represent their principles. OEC, Sec. 70. Guest candidacy/ political butterflies (not a member of the party) – a political party may nominate and/or support candidates not belonging to it. Third Notice Rule A candidate for an elective position is allowed can change affiliation within one (1) year prior to such election. Sec 71. (Struck Sec. 71.) It is no longer binding, because the OEC was enacted in 1985 but after the EDSA Revolution, the 1973 Constitution was revised. The 1987 Constitution encourages the free system of election, it was actually held in cases that candidates can change in a political party even it is within the one (1) year prescriptive period, that is a lot of candidates shifted political parties. The latest possible that candidates can change political party is the filing of the COC because the Certification of Nomination and Acceptance (CONA) should be attached or filed 2

with the COC simultaneously with the filing of the COC. NOTE: A candidate under a political party, is not precluded from changing the political system. 1987 Constitution: Article 9-C, Sec. 6. SECTION 6. A free and open party system shall be allowed to evolve according to the free choice of the people, subject to the provisions of this Article. Four Parameters of the Party List: 1. 20% Allocation 2. 2% Threshold (1/6) 3. 3/6 Seat Rule (Three Seat Limit Rule) 4. Proportional Representation Veterans Party v. Comelec Issue: Whether or not the 20% allocation is only mandatory or only a ceiling Comelec Veterans Ruling is unconstitutional. It is ceiling. The 2% seat is constitutional as to guaranteed seats but not as to additional seats. NOTE: The old Comelec formula is 2%, means one (1) seat in Congress. (Panganiban Formula) Recent Ruling: In Banat v. Comelec: They changed the allocation to fill in the 20%. 1. the 20% allocation is now mandatory (new formula) (old formula: Comelec formula / Panganiban Formula = 2% = one seat / divisible by 2) 2. the 2% threshold is constitutional only as to qualifying seat but not unconstitutional in additional seat in order to fill in the 59 seats, which distributed all the excess down the line. Q: Can a party list have a seat in Congress even though it has a less than the 2% threshold? A: Yes, it can have a seat in Congress, in the case of Banat, the SC ruled that the 2%

threshold is only constitutional as to the qualifying seat but not unconstitutional in additional seat and the 20% allocation is mandatory. Provided further that after applying the 2% threshold in the qualified and additional seats, there are still unfilled seats, and such seats can be distributed to those who garnered less than the 2% threshold. Atom Paglaum v. Comelec What are the three (3) kinds of Party-Lists (note) NOTE: A major political party can join the party-lists, requisites: 1. GR: He should not be a candidate in any legislative district. Q: If the major political party has a candidate of any legislative district, is there any way that party can join? A: Yes, the political party can join by registering a sectoral party that can separately register under the party list system, the sectoral wing is by itself an independent sectoral party and is linked to a political party through a coalition. Lokin v. Comelec 3 instances party list organization can replace or substitute their nominees submitted to COMELEC: 1. Death 2. Withdrawal by the nominee himself 3. Incapacity Qualifications of Elective officials:7160, LGC TITLE II ELECTIVE OFFICIALS CHAPTER I Qualifications and Election SEC. 39. Qualifications. – (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang 3

panlalawigan, sangguniang panlungsod, or sanggunian bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect.

day of the election; and able to read and write Filipino or any other local language or dialect.

(b) Candidates for the position of governor, vice- governor or member of the sangguniang panlalawigan, or Mayor, vice-mayor or member of the sangguniang panlungsod of highly urbanized cities must be at least twenty-three (23) years of age on election day.

Q: Suppose a person is a native Chinese, but a naturalized and he wants to run as a mayor and a legislative representative, what will be your advise? A: As counsel I will advise him that as to the position of the house of rep, he can’t run because he should be a natural-born. But he can run as Mayor since what is only required is that he must be a Filipino citizen.

(c) Candidates for the position of Mayor or vice-mayor of independent component cities, component cities, or municipalities must be at least twenty-one (21) years of age on election day.c (d) Candidates for the position of member of the sangguniang panlungsod or sangguniang bayan must be at least eighteen (18) years of age on election day.

Q: Can a person who is 18 yrs old run as a mayor in Nueva Ecija A: No because he must be 21 years of age.

Q: A person who is 24 yrs old who just celebrated his birthday and he is contemplating of running as a kagawad or SK chairman? A: As a lawyer, I will advise him that:

(e) Candidates for the position of punong barangay or member of the sangguniang barangay must be at least eighteen (18) years of age on election day.

As to SK chairman, he cannot run… Sec. 39 (f) Candidates for the sangguniang kabataan must be at least fifteen (18) years of age but not more than thirty (24) years of age on election day. (superseded through an SK law)

(f) Candidates for the sangguniang kabataan must be at least fifteen (18) years of age but not more than thirty (24) years of age on election day. (superseded through an SK law)

As to Kagawad, he may run.. Sec. 39 (e) Candidates for the position of punong barangay or member of the sangguniang barangay must be at least eighteen (18) years of age on election day.

Q: A person who cannot speak Filipino but can speak fluent Ilocano or Chinese and a Filipino citizen, can run in one of the municipalities in Ilocos Sur as Mayor?

Frivaldo (American citizenship) In all positions, there are basic five (5) basic qualifications: 1. citizenship 2. age 3. residency/address 4. registered voter 5. literacy: able to read and write **The qualification is a continuing requirement.

A: Yes, because: SEC. 39. Qualifications. – (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sanggunian bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the

NOTE: When you run for the positions it is presumed that you possess the qualifications.

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Q: If ever you loose one of the qualifications, can someone challenge your qualification? A: Yes, because according to SC, the qualifications set by law is a continuing requirement and could not be lost even during the period that you are serving. If during the period while you are serving you become a citizen of another country, then you are no longer qualified. An interested party can question your position. Hayudini v. COMELEC Q: Suppose there is a defect in the COC, and the COC was not notarized, and it was discovered after the election process. His opponent filed a case to question his qualification. Can his opponent question his holding of the position considering that he already won the position? (W/N an election can cure the defect) A: It depends whether or not the defect referes to disqualification refers to qualification or to a material defect. If the defect refers to any of the qualifications (citizenship, age residency/address, registered voter and literacy: able to read and write), even if the person has been elected it cannot cure the defect and his position can be challenged every time. But if the defect refers to material defect (material representation) such as taking an oath of office, the SC said that in this case, the defect is cured by his election. An election can cure the defect. Any defect for as long as it is not disqualification can be cured by an election. Q: Can an SK official who won in the election be disqualified based on a discovery that he is a son of the governor? Can the defect be cured by the election? A: NO, because the SK Reform Law enumerated as a qualification that, a son of the governor is disqualified from running the election because it contains an anti-dynasty clause making it the first to comply with Article II, Section 26 of the Philippine

Constitution. It strongly prohibits the SK candidacy of someone who has at most second degree relationship with an incumbent official from the local to the national level. Social Justice Society v. Dangerous Drugs Sen. Pimentel questioned the constitutionality for qualification of undergoing the drug test under the Dangerous Drug Act because it is requiring candidates to undergo drug testing. SC: It is unconstitutional because adding additional to the requirements stated in the Constitution is considered as a nullity. Who are Filipino Citizens? Section 1. The following are citizens of the Philippines: [1] Those who are citizens of the Philippines at the time of the adoption of this Constitution; [2] Those whose fathers or mothers are citizens of the Philippines; [3] Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and NOTE: The person must elect Philippine citizenship within the period of three (3) years upon reaching the age of majority beyond that he cannot be considered as natural-born Filipino. [4] Those who are naturalized in accordance with law. Section 2. Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens. Section 3. Philippine citizenship may be lost or reacquired in the manner provided by law.

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Section 4. Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission, they are deemed, under the law, to have renounced it.

need to trace the person’s origin, the mother or the father? (in order to prove that you one is not a Filipino: opponent) (in proving that a foundling is not a Filipino)

Section 5. Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law.

A: BOTH mother and father, because if you only prove through either the mother or the father, it shall be in favor of the foundling.

Q: Can a naturalized citizen of the Philippines run as a member of House of Representatives of the Philippines? A: No, because according to the Constitution a person must be a natural-born Filipino because only paragraphs 1,2 and 3 are natural-born Filipino and not paragraph 4. Q: Can a naturalized Filipino run for Mayor? A: Yes, because the requirement is that a person must only be a Filipino and not naturalborn.

David v. SET Effect of RA 9225: Repatriation will have his former citizenship The addition to Twin Requirements, is only applicable to those who have dual citizenship by application of law. Twin Requirements after repatriation can run: 1. taking of oath of allegiance 2. personal and sworn of renunciation of foreign citizenship Addition to Twin Requirements (now Three Requirements): 3. Compliance to the requirements as a voter

Tecson v. COMELEC SC: FPJ was a natural-born citizen. FPJ’s grandfather was a Filipino under the Treaty of Paris. Under that law it states that all citizens residing in the Philippine islands is a Spanish subject and are considered Filipino citizens. FPJ’s father is also a Filipino under the 1935 Constitution and his father is a Filipino, hence FPJ is a Filipino. Poe-Llamanzares v. Comelec In international law, foundling’s citizenship is based on where the foundling was found and thus such State must afford its protection. David v. SET Q: Is Grace-Poe a natural born Filipino? A: YES Q: In order to disprove the citizenship of a foundling, who among his parents does one

Cordora v. Comelec / Valles v. Comelec Tambunting travels using an American passport. He argues that he is a dual citizen by birth. SC: Dual citizenship is not prohibited by law if it is by operation of law and not because of a person’s conduct. What is prohibited by law is dual allegiance. Under the case, dual allegiance means that there must be a positive act from the citizen to acquire citizenship. In this case, Tambunting do not need to renounce his citizenship. Sobejana-Condon v. Comelec Sobejana: By signing the COC with the statement below the COC is already a compliance of the renunciation required under RA 9225. NOTE: This contention is untenable because that is only applicable to those with dual citizenship by operation of law. 6

The third requirement in which a person who is repatriated to require a person to comply with the requirement is only applicable to a person who has become a dual citizen through naturalization in a foreign country. If he became a dual citizen by operation of law or by birth (jus solis) then the third requirement is not necessary. Maquiling v. Comelec Q: Is the act of using a foreign passport after repatriation divests a person his Philippine citizenship? A: NO. After repatriation, a person who uses a foreign passport does not divest him his Philippine citizenship. Q: What is the effect now of using his passport after regaining his Philippine citizenship? A: It does not affect his Philippine citizenship. What it affects is his renunciation of the foreign citizenship because it recants to his disqualification in running for an office. Sabili vs. COMELEC 69:11 KINDS OF DOMICILE: 1. Domicile of Origin (it refers to where your parents reside) 2. Domicile of Choice (it refers to the place where he desires to live) 3. Domicile by Operation of Law (it refers when a woman lives by reason of marriage) To establish a new domicile of choice, personal presence in the place must be coupled with conduct indicative of the intention to make it one's fixed and permanent place of abode. As in all administrative cases, the quantum of proof necessary in election cases is substantial evidence, or such relevant evidence as a reasonable mind will accept as adequate to support a conclusion. Caballero vs. Comelec Q: Can a person establish his residency long before he applies for repatriation? Can he do that?

A: NO, he must establish his residency after taking his oath of allegiance. Q: Can that person, before getting his Philippine citizenship establish his residency in the Philippines? When will the counting of residency reckon, is it from the moment I after I decided to reside in the Philippines or after regained my citizenship as a Filipino? A: NO, a person before repatriation cannot legally establish residency in the Philippines because he is still considered an alien. The reckon will start after his application for repatriation has been approved. Garvida v. Sales (now: 15 – 30 yrs. old) The phrase "not more than 21 years of age" means not over 21 years, not beyond 21 years. It means 21 365-day cycles. It does not mean 21 years and one or some days or a fraction of a year because that would be more than 21 365-day cycles. "Not more than 21 years old" is not equivalent to "less than 22 years old," contrary to petitioner's claims. The law does not state that the candidate be less than 22 years on Election Day. Albania v. Comelec Q: Suppose a person has already served full three term as mayor, can he run again as mayor? Is that a disqualification or ineligibility? A: It is a disqualification. Q: Suppose a person already served two (2) terms as a mayor, for six years, and on the third time, he won again as a mayor but someone filed a case against him in the office of the Ombudsman. He has been suspended for six months. He regained his position but it was interrupted by the period of six months, now here comes the next election and he wants to run for the same position? Can he run for the same position considering that he has preventive suspension on his third term? 7

A: He can no longer run for reelection because the preventive suspension in this case did not interrupt his term of service as the elective officer’s continued stay and entitlement to office remain unaffected during the period of suspension. Q: Suppose a person won in an election but after the election, few months serving as mayor, his opponent filed an election protest because there was a massive cheating in the area. In the middle of his term, the mayor was adjudged to be guilty of the charge and the protestant was adjudged to be the rightful winner. So he only served for only 1 ½ year as a mayor. Is that considered one full term? A: When a candidate is proclaimed as winner for an elective position and assumes office, his term is interrupted when he loses in an election protest and is ousted from office, thus disenabling him from serving what would otherwise be the unexpired portion of his term of office had the protest been dismissed. Q: Suppose a mayor died and by succession the vice-mayor succeeded and served as a mayor until May next year? Can he not run, because that is already considered one term having served two terms? A: He can still run because for a term to be considered not full, there must be an interruption. He just assumed the position by operation of law because of succession. How do you determine whether or not there is no interruption? 1. the person has been elected for the position 2. he has fully served the term. Q: Suppose a mayor was elected for three consecutive terms and on the third term the election for recall was approved. Does the recall interrupt his term? A: Yes it is an interruption in the continuity of his official’s service. For he had become an interim, i.e. from the end of the 3rd term up to the recall election, a private citizen.

Q: Suppose a mayor of the municipality in Laguna was elected before his third term, but on his third term the municipality was abolished through a law and it was converted into a city. Does the abolition of the LGU was considered to be an interruption so that he can again run? A: No, it is not an interruption of the official’s continuity of service. Jalosjos vs. Comelec While Section 40(a) of the LGC allows a prior convict to run for local elective office after the lapse of two (2) years from the time he serves his sentence, the said provision should not be deemed to cover cases wherein the law imposes a penalty, either as principal or accessory, which has the effect of disqualifying the convict to run for elective office. Tagolino v. HRET It must be stressed that one who is disqualified under Section 68 is still technically considered to have been a candidate, albeit proscribed to continue as such only because of supervening infractions which do not, however, deny his or her statutory eligibility. In other words, while the candidate’s compliance with the eligibility requirements as prescribed by law, such as age, residency, and citizenship, is not in question, he or she is, however, ordered to discontinue such candidacy as a form of penal sanction brought by the commission of the above-mentioned election offenses. On the other hand, a denial of due course to and/or cancellation of a CoC proceeding under Section 78 of the OEC is premised on a person’s misrepresentation of any of the material qualifications required for the elective office aspired for. It is not enough that a person lacks the relevant qualification; he or she must have also made a false representation of the same in the CoC. Risos-Vidal vs. Comelec One of the contentions here is that the pardon given to Estrada is not absolute but conditional 8

which do not restore his political rights as to the whereas clause, where Mayor Estrada no longer sits in public office. A: The whereas clause is not part of the pardon given by the President. JALOSJOS VS. COMELEC: SEC. 40. Disqualifications. The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence ART. 30. Effects of the penalties of perpetual or temporary absolute disqualification. - The penalties of perpetual or temporary absolute disqualification for public office shall produce the following effects: The deprivation of the right to vote in any election for any popular office or to be elected to such office. Section 40(a) of the LGC should be considered as a law of general application and therefore, must yield to the more definitive RPC provisions in line with the principle of lex specialis derogat generali general legislation must give way to special legislation on the same subject, and generally is so interpreted as to embrace only cases in which the special provisions are not applicable. In particular, while Section 40(a) of the LGC allows a prior convict to run for local elective office after the lapse of two (2) years from the time he serves his sentence, the said provision should not be deemed to cover cases wherein the law imposes a penalty, either as principal or accessory, which has the effect of disqualifying the convict to run for elective office. Albania vs. Comelec (b) Those removed from office as a result of an administrative case; xxx Respondent's suspension from office is indeed not a ground for a petition for disqualification as Section 40(b) clearly speaks of removal

from office as a result of an administrative offense that would disqualify a candidate from running for any elective local position. In fact, the penalty of suspension cannot be a bar to the candidacy of the respondent so suspended as long as he meets the qualifications for the office as provided under Section 66(b) of R.A. No. 7160, to wit: SEC. 66. Form and Notice of Decision.- x x x (b) The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six (6) months for every administrative offense, nor shall said penalty be a bar to the candidacy of the respondent so suspended as long as he meets the qualifications for the office. Morales vs. CA Doctrine of Condonation- The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When the people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct to practically overrule the will of the people. Q: What is the rationale why Doctrine of Condonation is abandoned? A: Since the doctrine of condonation condoned all administrative cases after election, and applying it, all pending cases against the candidate will be dismissed. If the case prospers, his offense is still a ground for disqualification. Petition for disqualification (sec 68) vs. Petition to deny due course to or Cancel COC for False material Representation in the COC (Sec. 78) A petition to cancel a candidate’s COC may be filed under Section 78 of the OEC which provides: 9

SEC. 78. Petition to deny due course to or cancel a certificate of candidacy. — A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacyand shall be decided, after due notice and hearing, not later than fifteen days before the election. (Underlining supplied.) A petition for disqualification of a candidate may also be filed pursuant to Section 68 of the same Code which states: SEC. 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having: (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. Tagolino vs. HRET A substitution is only valid when the candidate is disqualified. If the candidate to be substituted made material misrepresentation in his CoC, it will result to a denial of due course/ cancellation of CoC. In disqualification, there is a candidate to be substituted. In cancellation, there is no candidate to speak of

in

the

first

place.

Under the Omnibus Election Code, disqualification is provided under Section 68 (pursuant to Section 77), while cancellation is provided under Section 78. Section 77 expressly enumerates the instances where substitution is permissible, that is when an official candidate of a registered or accredited political party "dies, withdraws or is disqualified for any cause." Noticeably,

“material misrepresentation” cases are not included in the said section and therefore, cannot be a valid basis to proceed with candidate substitution. RA 6646 (The electoral reform law of 1987), sec. 6;

Effect

of

Disqualification

Case.—

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. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. Grego vs. COMELEC This provision, however, does not support petitioners contention that the COMELEC, or more properly speaking, the Manila City BOC, should have suspended the proclamation. The use of the word may indicates that the suspension of a proclamation is merely directory and permissive in nature and operates to confer discretion. What is merely made mandatory, according to the provision itself, is the continuation of the trial and hearing of the action, inquiry or protest. Thus, in view of this discretion granted to the COMELEC, the question of whether or not evidence of guilt is so strong as to warrant suspension of proclamation must be left for its own determination and the Court cannot 10

interfere therewith and substitute its own judgment unless such discretion has been exercised whimsically and capriciously. Sunga vs. COMELEC Clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion, i.e., until judgment is rendered thereon. The word "shall" signifies that this requirement of the law is mandatory, operating to impose a positive duty which must be enforced. The implication is that the COMELEC is left with no discretion but to proceed with the disqualification case even after the election. Thus, in providing for the outright dismissal of the disqualification case which remains unresolved after the election, Silvestre v. Duavit in effect disallows what RA No. 6646 imperatively requires. Nolasco vs. COMELEC Section 6 of R.A. No. 6646 and sections 4 and 5 of the Rule 25 of the Comelec Rules of Procedure merely require that evidence of guilt should be strong to justify the COMELEC in suspending a winning candidate's proclamation. It ought to be emphasized that the suspension order is provisional in nature and can be lifted when the evidence so warrants. It is akin to a temporary restraining order which a court can issue ex-parte under exigent circumstances. Aquino vs. Comelec Under the above-quoted provision, not only is a disqualification case against a candidate allowed to continue after the election (and does not oust the COMELEC of its jurisdiction), but his obtaining the highest number of votes will not result in the suspension or termination of the proceedings against him when the evidence of guilt is strong. As petitioner clearly lacks one of the essential qualifications for running for membership in the House of Representatives, not even the will of a majority or plurality of the voters of the Second District of Makati City would substitute for a requirement mandated by the fundamental law itself.

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