Final Election Laws 2007

64 ELECTION LAW

only upon the fulfillment of certain minimum conditions.

GENERAL PRINCIPLES Scope of suffrage Sources of Philippine election law The election laws of the Philippines are contained in the following: •1987 Constitution •BP 881 (Omnibus Election Code) •RA 6646 (Electoral Reforms Law of 1987) •RA 6679 (Barangay Elections) •RA 6735 (Law Providing for Initiative and Referendum) •RA 7166 (1991 Synchronized Elections Law) •RA 7941 (Election of Party-List Representatives) •RA 8189 (Continuing Registration) •RA 8436 (Automated Election System) •RA 8524 •RA 9006 (Fair Election Act of 2001) THEORY OF POPULAR SOVEREIGNTY Art. II, Sec. 1 1987 Constitution: The Philippines is a democratic and republican state. Sovereignty resides in the people and all government authority emanates from them. A democratic and republican government derives all its powers, directly or indirectly, from the people at large. Its essence is indirect rule. Actual sovereignty is exercised by the people by means of suffrage. Suffrage defined

Suffrage encompasses the following: (1) Election Election is the means by which the people choose their officials for definite periods and to whom they entrust, for the time being as their representatives, the exercise of powers of government. It involves the choice of candidates to public office by popular vote. a. Regular election – refers to an election participated in by those who possess the right of suffrage and not disqualified by law and who are registered voters b. Special election – when there is failure of election on the scheduled date of regular election in a particular place or which is conducted to fill up certain vacancies, as provided by law (ex. To fill in vacancy in office before the expiration of the term for which incumbent was elected) (2) Plebiscite Plebiscite is the submission of constitutional amendments or important legislative measures to the people for ratification. (3) Referendum Referendum is the power of the electorate to approve or reject legislation through an election called for the purpose. (Sec. 2c, R.A. 6735) It may be of 2 classes, namely:

Suffrage is the right and obligation of qualified citizens to vote:

(a)Referendum on statutes, which refers to a petition to approve or reject an act or law, or part thereof, passed by Congress; and

(1) in the election of certain national and local officials, and (2) in the decision of public questions submitted to the people.

(b)Referendum on local law which refers to a petition to approve or reject a law, resolution or ordinance enacted by regional assemblies and local legislative bodies

It is a political right which enables every citizen to participate in the process of government to assure that it derives it powers from the consent of the governed. It operates on the principle of "one man (or one woman), one vote." Suffrage is not a natural right but a privilege which may be given or withheld by the lawmaking power subject to constitutional limitations. It is not necessarily an accompaniment of citizenship; it is granted

(4) Initiative Initiative is the power of the people to propose amendments to the Constitution or to propose and enact legislation through an election called for the purpose. (Sec. 2a, R.A. 6735) There are 3 systems of initiative, namely: (a)Initiative on the Constitution which refers to a petition proposing amendments to the Constitution;

65 •Suppressing whatever evils incident to the election of public officers, pursuant to its duty to secure the secrecy and sanctity of the ballots under Art. V, Sec. 2 of the 1987 Constitution.

(b)Initiative on statutes, which refers to a petition proposing to enact a national legislation; (c)Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal or barangay law, resolution or ordinance Note that in the case of Santiago v. COMELEC, the Supreme Court held that there is no law yet that is sufficient enough for proposing amendments to the Constitution. R.A. 6735 was deemed sufficient for statutory amendments but not Constitutional amendments. (5) Recall

What are the substantive requirements for the exercise of suffrage? The only substantive requirements exercise the right to vote are: (CARA)

to

(1)Citizenship (2)Age (3)Residency (4)Absence of disqualifications Filipino citizenship This may be by birth or naturalization.

Recall is the termination of official relationship of a local elective official for loss of confidence prior to the expiration of his term through the will of the electorate. Who can exercise Under Art. V, Sec. 1 of the 1987 Constitution, the right of suffrage may be exercised by all citizens of the Philippines who are: (1)not otherwise disqualified by law, (2)at least 18 years of age, and (3)have resided in the Philippines for at least 1 year, and in the place wherein they propose to vote for at least 6 months immediately preceding the election. The same provision provides that no literacy, property or other substantive requirement shall be imposed on the exercise of suffrage, and that Congress may not add or alter the qualifications of voters under Art. V, Sec. 1 of the 1987 Constitution. This specification is an implied prohibition against interference on the part of Congress in the right of suffrage. Congress, however, to a limited extent can regulate the right of suffrage by: •Defining the qualifications of voters •Regulating elections •Prescribing the form of official ballot •Providing for the manner of choosing candidates and the names to be printed on the ballot •Regulating the manner of conducting elections

Age Must be at least 18 at the time of the election. Residence For the purposes of election law, residence is synonymous with domicile. Art. 50 of the Civil Code provides that “for the existence of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence.” Domicile includes the twin elements of “the fact of residing or physical presence in a fixed place” and animus manendi, or the intention of returning there permanently. (Romualdez-Marcos v. COMELEC) Every person is deemed to have his domicile somewhere, and when it has been acquired, it will be deemed to continue until a new one has been acquired. Temporary absences although frequent or long continued, will not, while the person has a continuous intention to return, deprive him of his domicile and right to vote. Any person who temporarily resides in another city, municipality or country solely by reason of his occupation, profession, employment in private or public service, educational activities, work in the military or naval reservations within the Philippines, service in the AFP, the PNP, or confinement or detention in government institutions in accordance with law, shall not be deemed to have lost his original residence. (Sec. 9, R.A. 8189) It is not necessary that a person should have a house in order to establish his

66 residence or domicile in a municipality. It is enough that he should live there, provided that his stay is accompanied by his intention to reside therein permanently.

conditions and needs of the community from taking advantage of favorable circumstances existing in that community for electoral gain.

Literacy requirements The Constitution imposes no literacy requirements; hence illiterates have the right to vote. Property requirements Neither does the Constitution impose any property requirement since property ownership is not a test of individual capacity. A property requirement is not only inconsistent with the concept of a republican government, but with the social justice principle of equal opportunity as well. Formal education Formal education is no guarantee for good citizenship or intelligent voting. Sex

Disqualifications

(1)Persons

sentenced by final judgment to suffer imprisonment for not less than one (1) year. (Note: he / she shall automatically re-acquire the right to vote upon the expiration of 5 years after the service of sentence.)

(2)Persons

adjudged by final judgment of having committed any crime involving disloyalty to the duly constituted government (e.g. rebellion, sedition, violation of the firearms law) or any crime against national security. (Note: he / she shall automatically re-acquire the right to vote upon the expiration of 5 years after the service of sentence.) (3)Insane or incompetent persons as declared by competent authority.

There is no adequate or justifiable basis for depriving women of equal voting rights. Taxpaying Ability This is related to property requirement. Romualdez-Marcos v. COMELEC (248 SCRA 300) It is the fact of residence, not a statement in the certificate of candidacy which ought to be decisive in determining whether or not an individual has satisfied the Constitution’s residency qualification requirement. To successfully effect a change of domicile, one must demonstrate: (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 correspond with the purpose. Aquino v. COMELEC (248 SCRA 400) The place where a party actually or constructively has his permanent home, where he, no matter where he may be found at nay 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 purpose of election law. The purpose is to exclude strangers or newcomers unfamiliar with the

THE COMELEC Purpose The purpose of the COMELEC is to protect the sanctity of the ballot and to ensure the free and honest express of the popular will. To achieve this, the COMELEC was created as an independent administrative tribunal, co-equal with the other departments with respect to the powers vested in it, and not under any of the branches of Government. The intention is to place it outside the influence of political parties and the control of the legislative, executive, and judicial organs of the government. To preserve the independence of the COMELEC, appointments or designations in temporary or acting capacities are not allowed. Composition Composition: -

chairman 6 commissioners

Qualifications: •Natural born citizens •At least 35 years old •Holders of a college degree •Must not have been candidates for any elective position in the

67 immediately preceding elections •Majority of the members, including the chairman, should be members of the Bar who have been engaged in the practice of law for at least 10 years.

and electronic devices (BP 881, Sec. 52 g, i) •Annulment or cancellation of illegal registry lists of voters and ordering the preparation of a new one;

The chairman and the commissioners are to be appointed by the President with the consent of the Commission on Appointments. The Commissioners serve for 7 years without reappointment, under staggered terms of 2 years interval: of 3 commissioners first appointed, 3 shall hold office for 7 years, 2 for 5 years, and the rest for 3 years. The staggering of terms makes the COMELEC a continuing and self-perpetuating body, and consequently its members would have the benefit of the experience and expertise of the older members in the performance of its functions. The COMELEC Commissioners are subject to the same disabilities imposed on the President and the Vice-President, including the prohibition against holding any other office or engaging in any other profession or business. Powers and functions The powers and functions of COMELEC may be classified as follows:

(1)Enforcement

the

and administration of election laws and regulations (Art. IX-C, Sec. 2 (1), 1987 Constitution)

•Promulgation

of rules and regulations (Art. IX-C, Sec. 6; BP 881, Sec. 52b)

•Fixing

of election period (which shall commence 90 days before the election and end 30 days thereafter, unless otherwise fixed by the COMELEC in special cases; Art. IX-C, Sec. 6, 1987 Constitution)

•Fixing

of other reasonable periods for certain pre-election requirements (BP 881, Sec. 52m)

•Declaration

of failure or postponement of elections, as well as call for special elections (Sec. 4, RA 7166)

•Prescribe

forms, as well as use or adoption of latest technological

•Cancellation

of the canvass of election returns and annulment of a proclamation based on incomplete results. (Note, however, that the COMELEC does not have the power to annul an election which may not have been free, orderly, and honest as such power is merely preventive and not curative.) (2)Quasi-judicial powers The COMELEC has exclusive original jurisdiction over all contests relating to the election, returns and qualifications of all elective, regional, provincial and city officials. The COMELEC has exclusive appellate jurisdiction over all contests involving municipal officials decided by the RTC, or involving elective barangay officials decided by the MTC. In these cases, the decisions therein shall be final, executory and unappealable. (Art. IX-C, Sec. 2 (2), 1987 Constitution) Pursuant to its quasi-judicial powers, the COMELEC has the power: •To issue subpoena; •To take testimony;

•Of contempt

(Note, however, that the COMELEC's power to punish for contempt may be exercised ONLY in the exercise of its quasi-judicial functions. The COMELEC has no power to hold a person in contempt in the exercise of its administrative functions (e.g. reporter criticizes a contract with COMELEC for supplies, or a person fails to follow the procedure for the distribution of ballot boxes). •To issue warrants of arrest;

68 cases of violation of election laws (Art. IX-C, Sec. 2 (5), 1987 Constitution)

•Of

certiorari, prohibition and mandamus (Note: but only in exercise of its appellate jurisdiction; Relampagos v. Cumba, )

(3)Decide

all questions affecting elections (Art. IX-C, Sec. 2 (3), 1987 Constitution)

The power may be exercised upon complaint or motu propio.

The power of the COMELEC to decide all questions affecting elections pertains to the following:

The Ombudsman has NO jurisdiction to prosecute election offenses. He may do so only if he is deputized by the COMELEC.

(1) determination of the number and location of polling places (2) appointment of election officials and inspectors (3) registration of voters

(8)Filing

of petitions in court for inclusion or exclusion of voters (Art. IX-C, Sec. 2 (6), 1987 Constitution)

However, the COMELEC has NO jurisdiction over questions involving the right to vote (i.e. disqualifications of voters, right of a person to be registered, etc.), as these rest within the exclusive original jurisdiction of the MTC, appealable to the RTC.

(9)Recommendatory: (a)to Congress

•effective measures to minimize

(4)Deputize,

with the concurrence of the President, law enforcement agencies and instrumentalities of the Government for the exclusive purpose of ensuring free, orderly, honest, peaceful and credible elections (Art. IXC, Sec. 2(4), 1987 Constitution) cadets 18 yrs. of age and above may be authorized to act as the COMELEC's deputies for the purpose of enforcing its orders (Sec. 52a, BP 881)

•for

removal of any officer or employee it has deputized (Sec. 52a, BP 881);

•for

imposition of disciplinary action for violation or disregard of, or disobedience to its directive, order, or decision (Art. IX-C, Sec. 2 (8), 1987 Constitution);

•The

COMELEC may deputize any member or members of the AFP, NBI, PNP or any similar agency or instrumentality of the government (except civilian home defense forces) during the period of the campaign and ending 30 days thereafter, when in any area of the country there are persons committing acts of terrorism to influence people to vote for or against any candidate or political party. (Sec. 52b, BP 881)

•for

(5)Register

political parties, etc. (Art. IX-C, Sec. 2 (5), 1987 Constitution)

(6)Accredit

citizens' arms (Art. IX-C, Sec. 2 (5), 1987 Constitution) and

prosecution

election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidates. (Art. IX-C, Sec. 2 (7),1987 Constitution) (b)to the President

•CMT

(7)Investigation

The COMELEC has the power of a public prosecutor with the exclusive authority to conduct the preliminary investigation and the prosecution of election offenses punishable under the election law.

of

pardon, amnesty, parole, suspension of sentence for violation of election laws, rules and regulations (Art. IX-C, Sec. 5 1987 Constitution; This is to prevent the possibility of the President granting executive clemency for political reasons.) (10) Supervision / Regulation, for the duration of the election period, of use of all franchises or permits for

69 operation of:

Composition; En Banc and Division Cases

•transportation utilities; •media of information;

and

other

communication

public

or

•all

grants, special privileges, or concessions granted by the Government or any instrumentality thereof (Art. IX-C, Sec. 4, 1987 Constitution) The purpose of supervision and regulation is to guarantee or ensure equal opportunity for public service and the equitable right to reply, for public information campaigns and fora among candidates, and assure free, orderly, honest, peaceful and credible elections. (Sec. 2, R.A. 9006) No franchise or permit to operate a radio or television station shall be granted or issued, suspended or cancelled during the election period. (Sec. 6.4, R.A. 9006) COMELEC is mandated under Sec. 7 of R.A. 9006 to exercise affirmative action in procuring print space upon payment of just compensation from at least 3 national circulation, and free airtime from at least 3 national TV networks and 3 national radio networks, all of which are to be allocated free of charge equally and impartially among all the candidates for national office on 3 different calendar days. Quasi-Judicial Powers Jurisdiction The COMELEC has exclusive original jurisdiction over all contests relating to the election, returns and qualifications of all elective, regional, provincial and city officials. The COMELEC has exclusive appellate jurisdiction over all contests involving municipal officials decided by the RTC, or involving elective barangay officials decided by the MTC. In these cases, the decisions therein shall be final, executory and unappealable. (Art. IX-C, Sec. 2 (2), 1987 Constitution) Rendition of Decision

The COMELEC may sit en banc or in 2 divisions. As a general rule, election cases shall be heard and decided in division. Decisions that must be rendered by the COMELEC en banc include:

•Decisions

on motions for reconsideration (Art. IX-C, Sec. 3, 1987 Constitution);

•Petitions

for correction of manifest errors in the Statement of Votes (Sec. 5, Rule 27 of the 1993 Rules of the COMELEC);

•Questions

pertaining to proceedings of the Board of Canvassers (Mastura v. COMELEC, 285 SCRA 493)

•Postponement

of (Sec. 4, R.A. 7166)

election

•Declaration

of failure of election (Sec. 4, R.A. 7166)

•Calling

of special elections (Sec. 4, R.A. 7166) Time Period and Votes Required The COMELEC shall decide by a majority vote of all its members any case or matter brought before it within 60 days from the date of its submission for decision or resolution. (Art. IX-A, Sec. 7 1987 Constitution) Judicial Review Unless otherwise provided by the Constitution or by law, any decision, order or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within 30 days from receipt of a copy thereof. (Art. IX-A, Sec. 7, 1987 Constitution) What is contemplated in this provision are decisions, orders or resolutions rendered by the COMELEC in the exercise of its adjudicatory or quasi-judicial powers not those which are mere incidents of its inherent administrative functions over the conduct of elections. Questions arising from the latter may be taken in an ordinary civil action before the RTC. By certiorari, a party raises questions of law in the Supreme Court. Findings of fact made by the COMELEC are conclusive upon the Supreme Court.

70 The Supreme Court has no power of supervision over the COMELEC except to review its decisions on petitions by certiorari. The certiorari jurisdiction of the Supreme Court is confined to instances of grave abuse of discretion amounting to patent and substantial denial of due process committed by it in the exercise of its quasi-judicial powers. ELECTIONS IN GENERAL Kinds of elections General election It is one provided for by law for the election to offices throughout the State or a certain subdivision thereof, after the expiration of the full term of former officers. Special election It is one provided for by law under special circumstances. It is an election held to fill a vacancy in an office before the expiration of the full term for which the incumbent was elected, or an election at which some issue or proposition is submitted to the vote of the qualified electors.

elections shall be fixed by general law or by a proclamation or by the notice by which the election is called. Such designated place shall be mandatory. In case of emergencies which necessitate the changing of a polling place, adequate general notice must be given. Manner of Holding Elections While the manner of holding elections must be regulated, it is obvious that the manner prescribed is intended simply to secure the correct result. Manner and form should not be allowed to defeat the undoubted will of the people clearly expressed. (C.J. Simpson) Regulations prescribed are merely directory, and a failure to observe them fully will not invalidate the election, where an election has been held in good faith and irregularities do not affect the result. Where a special election is provided for, but no method of holding it is declared, it will be sufficient if it is held in the manner prescribed for the holding of general elections. PRE-ELECTION REQUIREMENTS PRECINCTS AND POLLING PLACES

Date of Election Under the Law In accordance with the Constitutional policy to synchronize elections, there is a simultaneous conduct of elections for national and local officials once every 3 years. Under R.A. 7166, elections shall be held on the 2nd Monday of May. The President and Vice-President are elected on the same day every 6 years. Senators, Elective Members of the House of Representatives, and Elective Provincial, City and Municipal Officials are elected on the same day every 3 years, except with respect to the Senators, only 12 of whom shall be elected every 3 years. Barangay Elections are held on the same day, and every 5 years thereafter, the term for elective barangay officials having been extended from 3 years to 5 years. (R.A. 7160, Sec. 43 (c) as amended by R.A. 8524) Time and Place for Holding Elections The time must be fixed by the authoritative power (i.e. the Constitution; laws in the case of regular elections; the executive or other designated power in the case of special elections). The place for holding

Precincts Precinct, defined - unit of territory for the purpose of voting (Sec. 149, BP 881) Establishment of Precincts The COMELEC shall establish all election precincts. Each barangay shall have at least 1 such precinct. (Sec. 149, BP 881) The COMELEC may introduce adjustments, changes or new divisions or abolish precincts if necessary. But no changes shall be introduced within 45 days before a regular election and 30 days before a special election or referendum or plebiscite. (Sec. 149, BP 881) Where it is not practicable to divide a precinct by territory, the COMELEC may adjust or split the precinct by assigning the registered voters alphabetically and equitably among the adjusted or split precinct. The polling places of the said precincts must be in the same building. (Sec. 8, R.A. 7166) Publication of Maps of Precincts

71 At least 5 days before the first registration day and until after the election, referendum, or plebiscite, the COMELEC shall post in the city or municipal hall and in 3 other conspicuous places and on the door of each polling place, a map of the city or municipality showing its division into precincts. Such maps shall be kept posted until after the election, referendum or plebiscite. (Sec. 151, BP 881) Polling Places Polling place, defined POLLING PLACE: Building or place where the Board of Election Inspectors conducts its proceedings and where the voters cast their votes (Sec. 152, BP 881) Designation of polling places The COMELEC may introduce changes in the location of polling places when necessary after notice to the registered political parties and candidates affected if any, and hearing. No location shall be changed within 45 days before a regular election and 30 days before a special election, referendum or plebiscite except when it is destroyed or it cannot be used. (Sec. 153, BP 881) Arrangements and Contents of Polling Places Each polling place shall have at least 10 voting booths of such size, specifications and materials as the COMELEC may provide to enable the voters to fill out their ballots secretly. (Sec. 158, BP 881) The polling place shall be so arranged that the booths, the table, the ballot boxes and the whole polling place, except what is being written within the booths, shall be in plain view of the board of election inspectors, the watchers and other persons who may be within the polling place. (Sec. 159 (d), BP 881) The COMELEC shall post inside each voting booth and elsewhere in the polling place on the day before the election, referendum, or plebiscite and during the voting period a list containing the names of all candidates or the issues or questions to be voted for. (Sec. 158; BP 881) There shall be a guard rail between the voting booths and the table for the Board of Election Inspectors. (Sec. 159; BP 881) Inspection of polling places Before the day of the election, referendum or plebiscite, the Chairman of the COMELEC shall, through its authorized

representatives, see to it that all polling places are inspected and such omissions and defects as may be found are corrected. (Sec. 163, BP 881) OFFICIAL BALLOTS, ELECTION RETURNS & BALLOT BOXES Form and Contents of ballots The ballots shall: •be uniform in size; •be printed in black ink on white security paper with distinctive, clear and legible watermarks that will readily distinguish it from ordinary paper; •be in the shape of a strip with stub and a detachable coupon containing the serial number of the ballot and a space for the thumbmark of the voter on the detachable coupon;

•bear

at the top middle portion the coat-of-arms of the Republic, the words, “Official Ballot”, the name of the city or municipality and the province, the date of the election and the following notice in English, “Fill out this ballot secretly inside the voting booth. Do not put any distinctive mark on any part of this ballot”; •contain the names of all the offices to be voted for, allowing opposite the name of each office, sufficient space or spaces with horizontal lines where the voter may write the name or names of the individual candidates voted for by him; •have nothing printed or written at the back except the signature of the chairman of the Board of Election Inspectors Notwithstanding the preceding provisions, COMELEC may prescribe a different form of official ballot on the same watermarked security paper to facilitate the voting by illiterate voters only and to use or adopt the latest technological and electronic devices in connection therewith. (Sec. 23, R.A. 7166) Emergency Ballots GR: No ballots other than the official ballots

72 shall be used or counted. Exception: "Emergency ballots" may be used if: failure to receive the official ballots on time there are no sufficient ballots for all registered voters

The COMELEC shall publish at least 10 days before an election, in a newspaper of general circulation, certified data on the number of ballots and returns and the names and addresses of the printers and the number printed by each.

the ballots are destroyed at such time as shall render it impossible to provide other official ballots. In these cases, the city or municipal treasure shall provide other ballots which shall be as similar to the official ones as circumstances will permit and which shall be uniform within each polling place. (Sec. 182, BP 881)

Ballot boxes

-

Printing of official ballots and election returns The official ballots and election returns shall be printed by the Government Printing Office and/or the Central Bank printing facilities exclusively, under the exclusive supervision and control of the COMELEC which shall determine and provide the necessary security measures in the printing, storage and distribution thereof. (Sec. 184, BP 881) The registered political parties or coalitions of parties (or their components should there be any dissolution or division of said coalition) whose candidates obtained at least 10% of the total votes cast in the next preceding senatorial election are each entitled to have a watcher and/or representative in the procurement and watermarking of papers to be used in the printing of election returns and official ballots, and in the printing, numbering, storage and distribution thereof. (Sec. 8, R.A. 6646) Requisition and Distribution The official ballots and election returns shall be distributed to each city and municipality at the rate of one and one-fifth ballots for every voter registered in each polling place, and for election returns, at the rate of one set for every polling place. (Sec. 186, BP 881) The ruling party and the dominant opposition party shall submit the names of their watchers who, together with the representatives of the COMELEC and the provincial, city, and municipal treasurers shall verify the contents of the boxes containing the shipment of official ballots, election returns and sample official ballots. (Sec. 189, BP 881)

On the day of the voting, there shall be a ballot box one side of which shall be transparent which shall be set in a manner visible to the voting public. It shall contain two compartments, one for valid ballots and the other for spoiled ballots. REGISTRATION OF VOTERS Registration defined - the act of accomplishing and filing of a sworn application for registration by a qualified voter before the election officer of the city or municipality wherein he resides and including the same in the book of registered voters upon approval by the Election Registration Board. (Sec. 3a, R.A. 8189) Necessity of registration "The act of registration is an indispensable precondition to the right of suffrage. For registration is part and parcel of the right to vote and an indispensable element in the election process. Thus … registration cannot and should not be denigrated to the lowly stature of a mere statutory requirement. Proceeding from the significance of registration as a necessary requisite to the right to vote, the State undoubtedly, in the exercise of its inherent police power, may then enact laws to safeguard and regulate the act of voter’s registration for the ultimate purpose of conducting honest, orderly and peaceful election, to the incidental yet generally important end, that even pre-election activities could be performed by the duly constituted authorities in a realistic and orderly manner – one which is not indifferent and so far removed from the pressing order of the day and the prevalent circumstances of the times." (Akbayan, et al v. COMELEC, G.R. No.147066, March 26, 2001) Qualifications and Disqualifications See previous discussion under Suffrage. Election Registration Board (Sec. 15, R.A. 8189)

Publication

In each city and municipality, there

73 shall be as many Election Registration Boards as there are election officers therein. In thickly populated cities or municipalities, the COMELEC may appoint additional election officers for such duration as may be necessary. Composition

election. (Sec. 8, R.A. 8189) However, in the case of an initiative or referendum, the COMELEC is authorized to set a special registration day at least 3 weeks before the scheduled initiative or referendum. (Sec. 5, R.A. 6735)

(1) Chairman: Election Officer. In case disqualified, the COMELEC shall designate an acting Election Officer.

CAN A SPECIAL REGISTRATION FOR A REGULAR ELECTION BE CONDUCTED OUTSIDE THE PERIOD PRESCRIBED IN SEC. 8, R.A. 8189 UNDER THE RESIDUAL OR STANDBY POWERS OF THE COMELEC UNDER SEC. 28, R.A. 8436?

(2) Members: (a) Public school official most senior in rank; and (b) Local civil registrar, or in his absence, the city or municipal treasurer. If neither are available, any other appointive civil service official from the same locality as designated by the COMELEC.

No. In the case of Akbayan, et al v. COMELEC (G.R. No.147066, March 26, 2001), the Supreme Court held that Sec. 8 of R.A. 8189 explicitly provides that no registration shall be conducted during the period starting 120 days before a regular election. The purpose of having a 120-day prohibitive period is to enable the COMELEC to complete all the necessary pre-election activities, including the Project of Precincts, constitution of Board of Election Inspectors, Book of Voters and approved Voters Registration Records, Computerized Voters' List, and Voters Information Sheet. Registration of voters is not, contrary to popular opinion, merely the act of going to the Election Officer and writing the names down. It is "in fact, a long process that takes about 3 weeks to complete not even counting how long it would take to prepare for the registration in the first place."

Disqualifications No member of the Board shall be related to each other or to any incumbent city or municipal elective official within the 4th civil degree of consanguinity or affinity. If in succeeding elections, any of the newly elected city or municipal officials is related to a member of the Board within the 4 th civil degree of consanguinity or affinity, such member is automatically disqualified to preserve the integrity of the Election Registration Board. either:

NOTE:

It is an election offense to

(1)accept

an appointment, to assume office and to actually serve as a member of the Board although ineligible thereto (Sec. 45d, R.A. 8189), or

(2)appoint

such ineligible person knowing him to be ineligible (Sec. 45d, R.A. 8189)

Re-registration A voter who is registered in the permanent list of voters need not register anew for subsequent elections unless:

Function

-

-

(1)he transfers residence to another city or municipality; or

Meet quarterly on the 3 Monday of April, July, October and January of every calendar year (or on the next following working day if such designated days fall on non-working holidays) rd

(2)his

registration has been cancelled on the ground of disqualification and such disqualification has been lifted or removed (Sec. 125, BP 881);

To hear and process all applications for registration. When registration conducted

Registration of voters shall be conducted not less than 120 days before a regular election and 90 days before a special

System of Continuing Registration

has

Under Sec. 8 of RA 8189, the COMELEC the power to conduct continuing

74 registration. Such registration shall be conducted daily in the office of the Election Officer during regular office hours, except during the period starting 120 days before a regular election and 90 days before a special election. The filing of the application must be done personally.

(1) TIME OF FILING: office hours

(2)NOTICE:

Notice of the place, date and time of the hearing of the petition shall be served upon the members of the Board and the challenged voter upon filing of the petition.

Challenge of the right to register Any person applying for registration may be challenged before the Election Registration Board:

•by any voter, •by any candidate, or •by any representative

Modes of service: (1) personal delivery, or (2) registered mail, or (3) posting in the bulletin board of city or municipal hall and in 2 other conspicuous places within the city or municipality (3) CONTENTS: Petition shall refer only to 1 precinct, and shall implead the Board as respondents

of a registered

political party.

Such challenge must be made in writing, under oath and must state the grounds therefor. (Sec. 18, R.A. 8189)

(4) COSTS: Generally, no costs shall be assessed against any party. However, the court may order a party to pay the costs and incidental expenses of the suit should it find that the application was filed solely to harass the adverse party and to cause him to incur expenses.

List of voters The list of voters refers to an enumeration of names of registered voters in a precinct duly certified by the Election Registration Board for use in the election. (Sec. 3 (d), R.A. 8189)

(5) INTERVENTION: Any voter, candidate or political party who may be affected by the proceedings may intervene and present his evidence.

The Board of Election Inspectors must post the final list of voters in each precinct 15 days before the date of the regular or special election or referendum or plebiscite.

(6)

Any candidate or authorized representative of an accredited political party upon formal request to an election registrar shall be entitled to a certified copy of the most recent list of voters upon payment of a reasonable fee.

EVIDENCE: Shall be based on the evidence presented. In no case shall a decision be rendered upon a stipulation of facts. If the case involves the issue of a fictitious voter, the nonappearance of the challenged voter on the day set for hearing shall be prima facie evidence that such voter is fictitious.

Illiterate and Disabled Voters Any illiterate person may register with the assistance of the Election Officer or any member of an accredited citizen’s arm. The application for registration of a physically disabled person may be prepared by any relative within the fourth civil degree of consanguinity or affinity or by the Election Officer or any member of an accredited citizen’s arm using the data supplied by the applicant [Sec. 14, RA 8189].

(7)

DECISION: Petition shall be heard and decided within 10 days from date of filing. Cases appealed to the RTC shall be decided within 10 days from receipt of the appeal. In all cases, the court shall decide these petitions not later than 15 days before the election and the decision shall become final and executory.

Inclusion-exclusion cases Common rules governing judicial proceedings in the matter of inclusion, exclusion and correction of names of voters (Sec. 32, R.A. 8189)

During

Jurisdiction and Appeal in Inclusion and Exclusion Cases MTC:

original and exclusive jurisdiction

75 RTC:

appellate jurisdiction

Appeals must be made within 5 days from receipt of notice. Otherwise the decision of the MTC becomes final and executory after said period. The RTC shall decide the appeal within 10 days from the time the appeal was received, and its decision shall be final and executory. No motion for reconsideration shall be entertained. (Sec. 138, BP 881; Sec. 33, R.A. 8189) Petition for Inclusion of Voters in the List The following may included in the voters’ list:

petition

to

be

•any person whose application by registration has been disapproved by the Board of Election Inspectors or •any person whose name has been stricken out from the list Petitioner may apply at any time except 105 days prior to a regular election or 75 days prior to a special election. (Sec. 34, R.A. 8189) Petition for Exclusion of Voters from the List The following may petition for the exclusion of a voter from the permanent list of voters: •any registered voter; •any representative of a political party; •the Election Officer Such petition may be filed at any time except 100 days before a regular election or 65 days before a special election. It shall be decided within 10 days from filing. (Sec. 35, R.A. 8189) "The petition for exclusion is a necessary component to registration since it is a safety mechanism that gives a measure of protection against flying voters, non-qualified registrants, and the like. The prohibitive period, on the other hand serves the purpose of securing the voter’s substantive right to be included in the list of voters." (Akbayan, et al v. COMELEC, G.R. No.147066, March 26, 2001) The citizenship of a person to be stricken from the list may be decided in the exclusion proceedings. However, the decision

does not acquire the nature of res judicata considering the summary character of the case. Voters Excluded Through the Inadvertence or Registered with an Erroneous or Misspelled Name (Sec. 37, R.A. 8189) WHAT MAY BE FILED?

(1)Petition

for reinstatement - filed by any registered voter who has not been included in the precinct certified list of voters (2)Petition for correction of name filed by any registered voter who has been included in the precinct certified list of voters with a wrong or misspelled name WHERE FILED? Registration Board

With

the

Election

If the petition is denied or not acted upon, the voter may file on any date with the proper MTC a petition for an order directing that the voter's name be entered or corrected in the list. The following must be attached to the petition: (1)Certified true copy of his registration record, or identification card, or the entry of his name in the list of voters used in the preceding election; (2)Proof that his application was denied or not acted upon by the Board; (3)Proof that the petitioner has served notice of his application to the Board Annulment of Book of Voters (Sec. 39, R.A. 8189) The book of voters refers to the compilation of all registration records in a precinct. (Sec. 3c, R.A. 8189) WHO MAY ANNULMENT:

FILE

PETITION

(1)Any voter; (2)Any election officer; (3)Any duly registered political party GROUNDS:

(1)The

book of voters was not prepared in accordance with the provisions of R.A. 8189; (2)The book of voters was prepared through:

FOR

76 •Fraud; •Bribery; •Forgery; •Impersonation; •Intimidation; •Force; or •Any similar irregularity

(3)The book of voters contains data that are statistically improbable

The book of voters shall be annulled after due notice and hearing by the COMELEC after the filing of a verified petition. No order, ruling or decision annulling a book of voters shall be executed within 90 days before an election. Deactivation and reactivation of registration Deactivation of registration (Sec. 27, R.A. 8189) CAUSES OF DEACTIVATION: (1)The 3 grounds for disqualification to vote, namely: (a)Sentence by final judgment to suffer imprisonment for not less than one (1) year, such disability not having been removed by plenary pardon or amnesty; (b)Adjudgment by final judgment of having committed any crime involving disloyalty to the duly constituted government (e.g. rebellion, sedition, violation of the firearms law) or any crime against national security, unless restored to his full civil and political rights in accordance with law; (c)Declaration of insanity or incompetence by competent authority, unless subsequently removed;

(2)Failure

to vote in the 2 successive preceding regular elections, as shown by the voting records (Note: SK elections are NOT considered regular elections for this purpose); (3)Court order for exclusion of registration; and

(4)Loss of Filipino citizenship Reactivation of registration (Sec. 28, R.A. 8189) PETITION FILED: Sworn application for reactivation of registration in the form of an affidavit stating that the grounds for the deactivation no longer exist WHO MAY FILE: Any voter whose registration has been deactivated WHERE FILED: With the Election Officer, who shall then submit such application to the Election Registration Board for appropriate action. WHEN FILED: Not later than 120 days before a regular election and 90 days before a special registration REGISTRATION OF POLITICAL PARTIES Political Party defined - an organized group of persons pursuing the same ideology, political ideas or platforms of government and includes its branches and divisions. (Sec. 60, BP 881) - an organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates and supports certain of its leaders and members as candidates for public office. (Sec. 3c, R.A. 7491) 2 Kinds: (1) national party, i.e. a party whose constituency is spread over the geographical territory of at least a majority of the regions; and (2) regional party, i.e. a party whose constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising the region. Purpose of registration The purpose of registration of political parties with the COMELEC is to enable them to:

77 (1)Acquire juridical personality; (2)Qualify for accreditation; and

subsequent

copy (if the dominant minority party) of the election returns (Sec. 27, R.A. 7166 as amended by R.A. 8045 and R.A. 8173) Procedure

(3)Entitle

them to the rights and privileges granted to political parties. (Sec. 60, BP 881) Rights and privileges granted A registered political party is entitled to the following rights and privileges:

•To be voted upon as a party,

provided that it is registered under the party-list system (Art. IX-C, Sec. 7, 1987 Constitution);

•To

have a watcher in every Election Registration Board (Sec. 15, R.A. 8189);

•To

inspect and/or copy at its expense the accountable registration forms and/or the list of registered voters in the precincts constituting the constituency at which the political party is fielding candidates (Sec. 42, R.A. 8189)

•To

have a watcher and/or representative in the procurement and watermarking of papers to be used in the printing of election returns and official ballots and in the printing, numbering, storage and distribution thereof (Sec. 8, R.A. 6646);

•To

have watchers who shall verify the contents of the boxes containing the shipment of official ballots, election returns and sample official ballots received by the provincial, city and municipal treasurers (Sec. 189, BP 881. Note that this privilege is only available to the ruling party and the dominant opposition party.);

•To

have one watcher in every polling place and canvassing center (Sec. 26, R.A. 7166);

•To

be present and to have counsel during the canvass of the election returns (Sec. 25, R.A. 6646)

•To

receive the 4th copy (if the dominant majority party) or the 5th

(1)The political party seeking registration may file with the COMELEC a verified petition attaching thereto its constitution and by-laws, platform or program of government and such other relevant information as may be required by the COMELEC. (2)The COMELEC shall require publication of the petition for registration or accreditation in at least three newspapers of general circulation.

(3)After

due notice and hearing, the COMELEC shall resolve the petition within 10 days from the date it is submitted for decision. (Sec. 61, BP 881. Note however the discrepancy with Sec. 62 which states that resolution of the petition for registration or accreditation shall be 15 days from the date of submission for decision.) Who may not be registered The following may not be registered as political parties:

•religious

denominations and sects (Art. IX-C, Sec. 2 (5), 1987 Constitution; Sec. 61, BP 881)

•those

which seek to achieve their goals through violence or unlawful means (Art. IX-C, Sec. 2 (5), 1987 Constitution, Sec. 61, BP 881)

•those

which refuse to uphold and adhere to the Constitution (Art. IX-C, Sec. 2 (5), 1987 Constitution)

•those

supported by foreign governments (Art. IX-C, Sec. 2 (5), 1987 Constitution) Forfeiture of status and cancellation of registration Forfeiture of status Any registered political party that, singly or in coalition with others, fails to obtain

78 at least 10% of the votes cast in the constituency in which it nominated and supported a candidate or candidates in the election next following its registration shall, after notice and hearing be deemed to have forfeited such status as a registered political party in such constituency. (Sec. 60, BP 881) Cancellation of registration The following are grounds for cancellation of registration of a political party:

(1)Accepting

financial contributions from foreign governments or their agencies (Art. IX-C, Sec. 2 (5), 1987 Constitution);

(2)The

party is a religious sect or denomination, organization or association organized for religious purposes (Sec. 6 (1), R.A. 7941);

hearing. (Sec. 6, R.A. 7941) Nomination and selection of official candidates (Sec. 6, R.A. 7166) No political convention or meeting for the nomination or election of the official candidates of any political party or organization or political groups or coalition thereof shall be held earlier than the following periods: Pres., VP, Senators: 165 days before the date of the election Members of the House of Representatives 75 days before the day of Elective Provincial, City or Municipal Officers the election REGISTRATION FOR PARTY-LIST

(3)The

party advocates violence or unlawful means to seek its goal (Sec. 6 (2), R.A. 7941);

(4)The

party is a foreign party organization (Sec. 6 (3), R.A. 7941);

or

(5)The

party is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes (Sec. 6 (4), R.A. 7941);

(6)The

party violates or fails to comply with laws, rules or regulations relating to elections (Sec. 6 (5), R. A. 7941);

(7)The

party declares untruthful statements in its petition for registration (Sec. 6 (6), R.A. 7941);

(8)The

party has ceased to exist for at least 1 year (Sec. 6 (7), R.A. 7941);

(9)The

party fails to participate in the last 2 preceding elections (Sec. 6 (8), R.A. 7941);

(10)If

registered under the party-list system, the party fails to obtain at least 2% of the votes in the 2 preceding elections for the constituency in which it has registered. (Sec. 6 (8), R.A. 7941) Under the party-list system, the COMELEC may refuse or cancel registration either motu propio or upon verified complaint of any interested party, after due notice and

Party-list system defined a mechanism of proportional representation in the election of representatives to the House of Representatives from national, regional and sectoral parties or organizations or coalitions thereof registered with the COMELEC. Component parties or organizations of a coalition may participate independently, provided the coalition of which they form part does not participate in the party-list system. (Sec. 3, R.A. 7941) Purpose of party-list system - to enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack welldefined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. (Sec. 2, R.A. 7941) Who may be registered

(1)Political

parties (See discussion in previous section);

(2)Sectoral

parties, i.e. organized groups of citizens belonging to the labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professional sectors, and whose principal advocacy pertains to the special interest and concerns of their

79 sector (Sec. 3d, R.A. 7941);

(3)Sectoral

organizations, i.e. groups of citizens or coalitions of groups of citizens who share similar physical attributes or characteristics, employment, interest or concerns (Sec. 3e, R.A. 7941);

(4)Coalitions,

i.e. aggrupations of duly registered national, regional, sectoral parties or organizations for political and/or election purposes (Sec. 3f, R.A. 7941) Parties, organizations or coalitions that are already registered with the COMELEC need not register anew. However, should they wish to participate in the party-list system, they must file with the COMELEC a manifestation of such desire to participate not later than 120 days before the election. (Sec. 4, R.A. 7941, as amended by Sec. 11, R.A. 8436) Procedure for registration PETITION: Petition verified by the party/organization/coalition's president or secretary. The petition must state 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. WHEN FILED: Not later than 90 days before the election ATTACHMENTS: (1) Constitution; (2) By-laws; (3) Platform or program of government; (4) List of officers; (5) Coalition agreement (as applicable); (6) Other relevant information as may be required by the COMELEC After due notice and hearing, the COMELEC shall resolve the petition within 15 days from the date it was submitted for decision, but not later than 60 days before election. (Sec. 5, R.A. 7941) Grounds for refusal and/or cancellation of registration

The following are grounds for refusal and/or cancellation of registration of a party, organization or coalition wishing to participate in the party-list system:

1.Accepting

financial contributions from foreign governments or their agencies (Art. IX-C, Sec. 2 (5), 1987 Constitution);

2.The

party is a religious sect or denomination, organization or association organized for religious purposes (Sec. 6 (1), R.A. 7941);

3.The

party advocates violence or unlawful means to seek its goal (Sec. 6 (2), R.A. 7941);

4.The

party is a foreign party or organization (Sec. 6 (3), R.A. 7941);

5.The

party is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes (Sec. 6 (4), R.A. 7941);

6.The

party violates or fails to comply with laws, rules or regulations relating to elections (Sec. 6 (5), R. A. 7941);

7.The

party declares untruthful statements in its petition for registration (Sec. 6 (6), R.A. 7941);

8.The

party has ceased to exist for at least 1 year (Sec. 6 (7), R.A. 7941);

9.The

party fails to participate in the last 2 preceding elections (Sec. 6 (8), R.A. 7941);

10.

If registered under the party-list system, the party fails to obtain at least 2% of the votes in the 2 preceding elections for the constituency in which it has registered. (Sec. 6 (8), R.A. 7941) The COMELEC may refuse or cancel registration either motu proprio or upon verified complaint of any interested party, after due notice and hearing. (Sec. 6, R.A. 7941) Nomination of party-list representatives (Sec. 8, R.A. 7941)

80 Each registered party, organization or coalition shall submit to the COMELEC a list of not more than 5 names from which party-list representatives shall be chosen in case it obtains the required number of votes. This list must be submitted not later than 45 days before the election. The nomination of party-list representatives is subject to the following limitations: (1)The nominee must have all of the qualifications and none of the disqualifications for the exercise of the right of suffrage. Moreover, he/she must be a registered voter, able to read and write, and at least 25 years on the day of the election. In case of youth sector nominees, such nominees must be at least 25 but not more than 30 yrs. old on the day of the election. (Sec. 9)

(b)Withdraws his nomination in writing; or (c)Becomes incapacitated in which case the substitute nominee shall be placed last in the list (Sec. 8) Party-list and district representatives distinguished Every voter is entitled to 2 votes: the first is a vote for candidate for member 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. Party-list representative

District representative

Scope of electorate

Elected nationally, with party-list organizations garnering at least 3% of all the votes cast for the partylist system entitled to 1 seat, which is increased according to proportional representation, but is in no way to exceed 3 seats per organization

Elected according to legislative district by the constituents of such district

Residence requirement

No special residency requirement

Must be a resident of his legislative district for at least 1 year immediately before the election

Manner election

of

Voted upon by party or organization. It is only when a party is entitled to representation that it designates who will sit as representative.

Elected personally, by name.

Effect of disaffiliation with party

Loses his seat, in which case he/she will be

Does not lose seat if he/she changes party

(2)The

nominee must be a bona fide member of the party or organization which he/she seeks to represent for at least 90 days preceding the day of the election. (Sec. 9)

(3)An

elected party-list representative who changes his political party or sectoral affiliation within 6 months before an election is not eligible for nomination as party-list representative under his new party or organization. (Sec. 15)

(4)A

person may be nominated in 1 list only. (Sec. 8)

(5)Only

persons who have given their consent in writing may be named in the list. (Sec. 8)

(6)The

list cannot include any candidate for any elective office or any person who has lost his bid for an elective office in the immediately preceding election. (Sec. 8) (7)Changes of name or alterations in the order of nominees are generally not allowed after the list has been submitted to the COMELEC. However, these may be allowed when the nominee either: (a)Dies; or

i.e.

81

Effect vacancy

of

Effect change affiliation within months prior election

of in 6 to

Effect of loss during previous election

substituted by another qualified person in the party / organization based on the list submitted to the COMELEC.

or affiliation.

A substitution will be made within the party, based on the list submitted to the COMELEC.

A special election may be held provided that the vacancy takes place at least 1 year before the next election.

A party-list representative is prohibited from sitting as representative under his new party or organization.

This does not prevent a district representative from running under his new party.

The petition for accreditation must state the following: (a)The constituency to which petitioner seeks accreditation;

A district representative is not prevented from running again as a district representative if he/she lost during the previous election. ACCREDITATION OF A CITIZENS' ARM

A party-list representative cannot sit if he ran and lost in the previous election.

Who may be accredited Any bona fide non-partisan group, association or organization from the civic, youth, professional, educational, business or labor sectors with identifiable leadership, membership and structure, and with demonstrated capacity to promote the public interest and assist the COMELEC in the performance of its functions and activities as mandated by the Constitution and by law (Rule 33, Procedure)

Sec.

1,

COMELEC

Rules

of

Procedure for accreditation (1)FILING OF ACCREDITATION

its President, Chairman of the Board of Directors, or any of its duly authorized officers.

PETITION

FOR

Any group seeking accreditation may file a petition for accreditation, duly verified by

(b)That it is not supporting any candidate, political party, organization or coalition of political parties, in the constituency where it seeks accreditation; (c)Nature of its membership; names of its officers or organizers, location of principal office or place of business, and an assurance of its capability to undertake a coordinated operation and activity to assist the COMELEC; (d)That it shall submit itself to the direct and immediate control and supervision and comply with the orders of the COMELEC in the performance of its specific functions and activities provided by law, and such other functions and activities provided by law, and such other functions and activities which the COMELEC may assign; (e)That it shall strictly remain nonpartisan and impartial during the registration and election periods; (f)That it is not supported by or under the influence of any foreign government or any of its agencies or instrumentalities; or of any foreigner, whether natural or juridical person; (g)That it shall not solicit or receive, directly or indirectly, any contribution or aid of whatever form or nature from any foreign government or any of its agencies or instrumentalities, or from any foreigner, whether natural or juridical person; (h)That it does not seek to achieve its objectives, goals or programs through violence or other unlawful means, nor aim to propagate any ideology opposed to the principles of a republican and democratic government; and (i)That it undertakes to police its ranks and prevent infiltration by persons or groups of persons who may, directly or indirectly, destroy its character of nonpartisanship and impartiality.

82 (2)SETTING OF PETITION FOR HEARING Upon the filing of the petition, the COMELEC en banc shall immediately set the petition for hearing. The COMELEC may order the publication of the petition in a newspaper of general circulation if it deems such necessary. Publication shall be at the expense of the petitioner. (3)HEARING OF PETITION The accreditation of the petitioner may be opposed by any person, group, association, group or organization, political party or coalition of political parties possessing relevant information or evidence against the petitioner by filing a verified opposition. However, notwithstanding the absence of any opposition, the COMELEC may motu proprio require the petitioner to present evidence to support its petition for accreditation. (4)DECISION The COMELEC shall then render its decision. If the decision is for the accreditation of the petition, a certificate of accreditation shall be issued stating the following: (a)The name of the group or organization; (b)The constituency to which it is accredited; and (c)The political exercise which it is accredited

for

Revocation and expiration of accreditation REVOCATION: May be done by the COMELEC after notice and hearing for any of the following acts: (1)The citizens' arm has showed or acted with partiality in any political issue or to any political party, organization or coalition of political parties; (2)It has performed acts in excess of its duties and functions as provided by law; or (3)It has failed to comply with the conditions imposed upon it in the decision granting accreditation. EXPIRATION: The accreditation automatically lapses at the end of the election period of the

political exercise for which the petitioner was accredited as citizens' arm. CERTIFICATES OF CANDIDACY Candidate defined Any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of parties. (Sec. 79, BP 881) Guest Candidacy A political party may nominate and/or support candidates not belonging to it. (Sec. 70, BP 881) Note however that this is not applicable in cases of political parties registered under the party-list system, as nominees must necessarily be bona fide members of the party. Qualifications See the provisions of the Constitution for the qualifications of candidates for President, Vice-President, Senator, and Member of the House of Representatives. See the provisions of the Local Government Code for the qualifications of local elective officials. 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 are lost, his title to the office may be seasonably challenged. (See Frivaldo v. COMELEC, 174 SCRA 245; Labo v. COMELEC, 176 SCRA 1) Filing of certificate of candidacy To be eligible for any elective public office, one must file a certificate of candidacy within the period fixed by the Omnibus Election Code. Mode of Filing Certificates must be filed by the candidate personally or by his duly authorized representative. No certificate shall be filed by mail, telegram or facsimile. (Sec. 7, R.A. 7166) Time of Filing Certificates of candidacy must be filed in 12 legible copies not later than 120 days before the elections. (Sec. 11, R.A. 8436)

83 Place of Filing The certificates of candidacy shall be filed in the following places: President Vice-Pres Senator

| | COMELEC main office (Mla) |

Congressman - Provincial election supervisor If NCR district: File with Regional Election Director If legislative district in cities outside NCR which comprise one or more legislative districts: File with City election registrar concerned Provincial Offices supervisor

Provincial

election

City / Municipal Offices - City or municipal election registrar Contents of certificate of candidacy The certificate of candidacy shall state the following: •That the person filing the certificate is announcing his candidacy for the office stated therein and that he or she is eligible for such office; •The political party candidate belongs;

to

which

the

•Civil status; •Date of birth; •Residence; •Post office address for all election purposes; •Profession or occupation; •That he / she will support and defend the Constitution of the Philippines and will maintain faith and allegiance thereto; •That he / she will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; •That he / she is not a permanent resident or immigrant to a foreign country; •That the obligation imposed by oath is assumed voluntarily, without mental reservation or purpose of evasion;

•That the facts stated in the certificate of candidacy are true to the best of his knowledge. Effects of filing Note: Sec. 67 of BP 881 and the first proviso of Sec. 11 of R.A. 8436 (which states that "Any elective official, running for any officer other than one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned upon the start of the campaign period") have been repealed by Sec. 14 of R.A. 9006 (Fair Election Act of 2001). Any mass media columnist, commentator, announcer, reporter, on-air correspondent or personality who is a candidate for any elective public office shall be deemed resigned, if so required by his/her employer, or shall take a leave of absence from his/her work as such during the campaign period. (Sec. 6.6, R.A. 9006) Withdrawal of certificate A person who has filed a certificate of candidacy may withdraw the same prior to the election by submitting to the office concerned a written declaration under oath. If a candidate files a certificate of candidacy for more than 1 office, he shall not be eligible for any of them. However, he may declare under oath the office for which he desires to be eligible and cancel the certificate of candidacy for the other office or offices provided that this is done before the expiration of the period for the filing of certificates of candidacy. (Sec. 73, BP 881) The filing of the withdrawal shall not affect whatever civil, criminal, or administrative liabilities which a candidate may have incurred. (Sec. 73, BP 881) RAMIREZ V. COMELEC The certificate of candidacy of petitioner for the office of provincial board member was filed by his political party. 15 minutes before the deadline, he filed his certificate of candidacy for mayor. 8 days later, he filed a petition to withdraw his certificate of candidacy for the office of the board member and to declare subsisting his certificate of candidacy for mayor, attaching his written declaration under oath withdrawing his certificate of candidacy for board member. Since the certificate of candidacy for the position of board member was filed by his

84 party and the said party had withdrawn that nomination, there was substantial compliance with Sec. 73 of the Omnibus Election Code. His filing under oath within the statutory period of his individual candidacy for mayor was a rejection of the party nomination of the other officer. Disqualifications According to Prof. Barlongay, disqualifications may be classified into 4 categories: (1) status; (2) acts; (3) nuisance candidacy; and (4) falsity of material representation in the certificate of candidacy. Status (1)Lack of Filipino citizenship; (2)Lack of residency requirement; (3)Insanity or incompetence, as declared by competent authority;

(4)Permanent

residence or immigrant status in a foreign country, unless such person has waived his status as permanent resident or immigrant in accordance with the residence requirement provided for in the election laws (Sec. 68, BP 881) Acts (1)Sentence by final judgment for: •Subversion, rebellion;

insurrection,

•Any offense for which the candidate has been sentenced to a penalty of more than 18 months of imprisonment; •Any offense involving moral turpitude; Moral turpitude is an act of a baseness, vileness, or depravity in the private duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty or good morals. The general rule is that crimes mala in se involve moral turpitude while crimes mala prohibita do not. Moral

turpitude implies something immoral in itself, regardless of the fact that it is punishable by law or not. (Dela Torre v. COMELEC, 191 SCRA 229)

•Having

given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions (Sec. 68a, BP 881);

•Having

committed acts of terrorism to enhance his candidacy (Sec. 68b, BP 881);

•Having

spent in his election campaign an amount in excess of that allowed by the Omnibus Election Code (Sec. 68c, BP 881);

•Having

solicited, received or made any contribution prohibited under the Omnibus Election Code (Sec. 68d, BP 881; cf. Secs. 89, 95, 96, 97 and 104);

•Having

engaged in election campaign or partisan political activity outside the campaign period and not pursuant to a political party nomination (Sec. 68e, BP 881, cf. Sec. 80);

•Having

removed, destroyed, obliterated, defaced or tampered with or prevented the distribution of lawful election propaganda (Sec. 68e, BP 881, cf. Sec. 83);

•Having

violated the rules and regulations on election propaganda through mass media (Sec. 68e, BP 881, cf. Sec. 86);

•Having

coerced, intimidated, compelled, or in any manner influenced, directly or indirectly, any of his subordinates or members, or employees, etc. to aid, campaign or vote for or against any candidate or any aspirant for the nomination or selection of candidates (Sec. 68e, BP 881, cf. Sec. 261d);

•Having

directly or indirectly threatened, intimidated, or actually caused, inflicted or produced any violence, injury, punishment,

85 damage, loss or disadvantage upon any person or that of the immediate members of his family, his honor or property, or used any fraudulent device or scheme to compel or induce or prevent the registration of any voter, or the participation in any campaign, or the casting of any vote, or any promise of such registration, campaign, vote, or omission therefrom (Sec. 68e, BP 881, cf. Sec. 261e);

•Having

engaged in unlawful electioneering (Sec. 68e, BP 881, cf. Sec. 261k);

•Having

violated the prohibition against release, disbursement or expenditure of public funds 45 days before a regular election (or 30 days in the case of a special election) (Sec. 68e, BP 881, cf. Sec. 261v);

•Having

solicited votes or undertaken any propaganda on the day of election for or against any candidate or any political party within the polling place or within a radius of 30 m. thereof (Sec. 68e, BP 881, cf. Sec. 251cc) Nuisance candidacy A nuisance candidate is one who files a certificate of candidacy: (a)To put the election process in mockery or disrepute; or (b)To cause confusion among the voters by the similarity of the names of the registered candidates, or

(c)Clearly

demonstrating that he/she has no bona fide intention to run for the office which the certificate of candidacy has been filed, and thus prevents a faithful determination of the true will of the electorate. (Sec. 69, BP 881) Falsity of material representation Falsity of a material representation in the certificate of candidacy is a ground for the denial of due course to or cancellation of a certificate of candidacy under Sec. 78 of BP 881. Disqualifications under the Local Government Code (Sec. 40, R.A. 7160)

(1)Those sentenced by final judgment for an offense punishable by one year or more of imprisonment and within 2 years after serving sentence. (2)Those removed from office as a result of an administrative case. REYES V. COMELEC Reyes, the incumbent mayor, was found guilty in an administrative complaint. Despite this, he filed a certificate of candidacy. Although the COMELEC disqualified him, the Board of Election Canvassers, unaware of COMELEC’s decision to disqualify him, proclaimed Reyes as the mayor. The election of Reyes did not render the administrative charges against him moot and academic. The decision to remove him was served on Reyes and thereafter became final because he failed to appeal to the Office of the President. He was therefore validly removed from office and pursuant to the Local Government Code, was disqualified from running for re-election. (3)Those convicted by final judgment for violating the oath of allegiance to the Republic of the Philippines. (4)Those with dual citizenship. See Mercado v. Manzano (LocGov) (5)Fugitives from justice in criminal and non-political cases here and abroad. A "fugitive from justice" includes "not only those who flee after conviction to avoid punishment, but likewise those who, after being charged, flee to avoid prosecution." (Marquez v. COMELEC, 243 SCRA 358) In the case of Rodriguez v. COMELEC (G.R. No. 120099, July 24, 1996), it was held that Rodriguez could not be considered a "fugitive from justice" because his arrival in the Philippines from the U.S. preceded the filing of the felony complaint in the Los Angeles Court and the issuance of the arrest warrant by the same foreign court by almost 5 months. The Supreme Court held that the intent to evade is the compelling factor that

86 animates one’s flight from a particular jurisdiction. And there can only be an intent to evade prosecution or punishment when there is knowledge by the fleeing subject of an already instituted indictment, or of a promulgated judgment of conviction. (6)Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of the Local Government Code. FRIVALDO V. COMELEC Frivaldo was previously declared as an alien. Despite this, he was able to file his certificate of candidacy. The election occurred on May 8, 1995. Frivaldo was able to reacquire Philippine citizenship on June 30, 1995 through repatriation by taking his oath of allegiance at 2:00 p.m. Philippine citizenship is an indispensable requirement for holding an elective public office. An official begins to govern or discharge his functions only upon his proclamation and on the day the law mandates his term of office to begin. Since Frivaldo reassumed his citizenship on the very day the term began, he was therefore already qualified to be proclaimed, to hold such office and to discharge the functions and responsibilities thereof as of the said date. (7)Those minded.

who

are

insane

or

feeble-

Special Disqualifications under the Lone Candidate Law (Sec. 4, R.A. 8295) The following persons are disqualified from running in a special election called to fill the vacancy in an elective office, provided that evidence of their guilt is strong: (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; (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 candidate. Effect of death, disqualification or withdrawal If the death, withdrawal occurs:

disqualification

or

- after the last day for filing of the certificates of candidacy  ONLY a person belonging to, and certified, by the same political party, may file a certificate of candidacy to replace him. - between the day before the election and midday of the election day  the certificate may be filed with any Board of Election Inspectors in the political subdivision where he is a candidate or with the COMELEC if it is a national position. (Sec. 77, BP 881) Petition to deny due course or to cancel certificate A verified petition to deny due course to or cancel a certificate of candidacy may be filed by any person EXCLUSIVELY on the ground that a material misrepresentation contained therein as required is false. Such petition shall be filed any time not later than 25 days from the time of filing of the certificate, and shall be decided not later than 15 days before the election. (Sec. 78, BP 881) Prohibition against Multiple Candidacies No person shall be eligible for more than one office to be filled in the same election, and if he files his certificate of candidacy for more than one office, he shall not be eligible for any of them. However, before the expiration of the period for the filing of certificates of candidacy, the person who was filed more than one certificate of candidacy may declare under oath the office for which he desires to be eligible and cancel the certificate of candidacy for the other office or offices. The filing or withdrawal of a certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred. Certified List of Candidates

87 The COMELEC shall cause to be printed a certified list of candidates for each office to be voted for in each province, city or municipality immediately followed by the nickname or stage name of the candidate and his political affiliation, if any. The list shall be posted inside each voting booth.

except during the campaign period. Violation of this prohibition constitutes an election offense. (Sec. 80, B.P. 881)

Whenever practicable, the Board of Election Inspectors shall cause said list of candidates to be written on the blackboard or manila paper for posting inside the polling place. The names of all candidates followed by his nickname or stage name shall also be printed in the election returns and tally sheets. (Sec. 4, R.A. 6646)

The following are lawful election propaganda:

ELECTION CAMPAIGN & EXPENDITURES ELECTION CAMPAIGN Election campaign or partisan political activity It is an act designed to promote the election or defeat of a particular candidate or candidates to a public office. It does not include public expressions of opinions or discussions of probable issues in a forthcoming election or on attributes or criticisms of probable candidates proposed to be nominated in a forthcoming political party convention. Prohibitions

•Members

of the board of election inspections are prohibited from engaging in any partisan political activity or from taking part in the election except to discharge their duties as such and to vote. (Sec. 173, BP 881)

•Officers

or employees of the civil service are prohibited from engaging directly or indirectly in any electioneering or partisan political campaigns. (Art. IX-B, Sec. 2 (4), 1987 Constitution)

•Members

of the military are prohibited from engaging directly or indirectly in any partisan political activity except to vote. (Art. XVI, Sec. 5 (3), 1987 Constitution) Campaign period It is prohibited for any person, political party or association of persons to engage in an election campaign or partisan political activity

Lawful election propaganda (Sec. 3, R.A. 9006)

•Pamphlets, leaflets, cards, decals, stickers, or other written or printed materials the size of which does not exceed 8 ½ inches in width and 14 inches in length; •Handwritten or printed letters urging voters to vote for or against any particular political party or candidate for public office; •Cloth, paper or cardboard posters, whether framed or posted, with an area not exceeding 2 feet by 3 feet. NOTE: Streamers not exceeding 3 feet by 8 feet in size are allowed at the site and on occasion of a public meeting or rally or in announcing the holding of such meeting or rally. Such streamers may be displayed 5 days before the date of the meeting or rally and shall be removed within 24 hours after said meeting or rally. •Paid advertisements in print or broadcast media. Such advertisements must comply with the following requirements:

•Any

published or printed political matter and any broadcast of election propaganda by TV or radio for or against a candidate or group of candidates to any public office shall bear and be identified by the reasonably legible or audible words “political advertisement paid for” followed by the true and correct name and address of the candidate or party for whose benefit the election propaganda was printed or aired. (Sec. 4.1, R.A. 9006)

•If

the broadcast is given free of charge by the radio or TV station, it shall be identified by the words "airtime for this broadcast was provided free of charge by" followed by the true

88 and correct name and address of the broadcast entity. (Sec. 4.2, R.A. 9006)

•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 must be attached to the advertising contract and submitted to the COMELEC within 5 days after its signing. (Sec. 4.3, R.A. 9006, cf. Sec. 6.3, R.A. 9006) •All other forms of election propaganda not prohibited by the Omnibus Election Code or the Fair Election Act of 2001. Adiong v. COMELEC (207 SCRA 712) In this case, the Supreme Court declared as unconstitutional COMELEC Resolution No. 2347 insofar as it prohibits the posting of decals and stickers on cars and other moving vehicles since it infringes on the right to freedom of expression. The restriction is so broad as to include even a citizen's privately-owned vehicle, which is equivalent to deprivation of property without due process of law. Prohibited Acts It is prohibited: For any foreigner:

•to

aid any candidate or political party, directly or indirectly;

•to

take part or influence in any manner any election;

•to

contribute or make any expenditure in connection with any election campaign or partisan political activity For any person during the campaign period:

•to remove, destroy, obliterate or in

any manner deface or tamper with lawful election propaganda;

•to

prevent the distribution lawful election propaganda For any candidate, political organization or any person:

of

party,

•to

give or accept, directly or indirectly, free of charge, transportation, food or drinks or things of value during the five hours before and after a public meeting, on the day preceding the election, and on the day of the election; •to give or contribute, directly or indirectly, money or things of value for such purpose. Badoy v COMELEC (35 SCRA 285) The prohibition against certain forms of election propaganda was upheld as a valid exercise of police power, “to prevent the perversion and prostitution of the electoral apparatus, and of the denial of due process of law.” Sanidad vs COMELEC ( 181 SCRA 529) But this evil does not obtain in a plebiscite where the electorate is asked to vote for or against issues not candidates. Mass Media Equal access to media time and space All registered parties and bona fide candidates are guaranteed equal access to media time and space under the Fair Election Act. To this end, the COMELEC has the power to supervise the use and employment of press, radio and television facilities insofar as the placement of political advertisements is concerned to ensure that candidates are given equal opportunities under equal circumstances to make known their qualifications and their stand on public issues. Of course, such political advertisements must be within the limits set forth in the Omnibus Election Code and R.A. 7166 on election spending. Pursuant to such end: •Print advertisements shall not exceed 1/4 page, in broadsheet and 1/2 page in tabloids thrice a week per newspaper, magazine, or other publications, during the campaign period;

•Bona

fide candidates and registered political parties running for nationally elective office are entitled to not more than 120 minutes of TV advertisement and 180 minutes of radio advertisement whether by purchase or by donation;

•Bona

fide candidates and registered

89 political parties running for locally elective office are entitled to not more than 60 minutes of TV advertisement and 90 minutes of radio advertisement whether by purchase or by donation; •Broadcast stations or entities are required to submit copies of their broadcast logs and certificates of performance to the COMELEC for the review and verification of the frequency, date, time and duration of advertisement broadcast for any candidate or political party; •All mass media entities are required to furnish the COMELEC with a copy of all contracts for advertising, promoting or opposing any political party or the candidacy of any person for public office within 5 days after its signing; •No franchise or permit to operate a radio or TV station shall be granted or issued, suspended or cancelled during the election period. Media practitioners Moreover, media practitioners who are officials of a political party or members of the campaign staff of a candidate or political party prohibited from using their media time or space to favor any candidate or political party. Media practitioners or personalities who are candidates for any elective public office or are campaign volunteers for or employed or retained in any capacity by any candidate or political party shall be deemed resigned, if so required by their employer, or shall take a leave of absence from their work as such during the campaign period. Public exhibitions No movie, cinematograph, or documentary portraying the life or biography of a candidate shall be publicly exhibited in a theater, TV station or any public forum during the campaign period. The same is true for movies, cinematographs and documentaries portrayed by actors or media personalities who are themselves candidates. Rallies, meetings and other political activity Application for permits to hold rally (Sec. 87, B.P. 881) The holding of peaceful political rallies during the campaign period is allowed. In order to hold rallies, political parties must follow the requirements of local ordinances on the issuance of permits. All applications for

permits to hold meetings, rallies and other similar political activities must be immediately posted in a conspicuous place in the city or municipal building, and the receipt thereof acknowledged in writing. Such applications must be acted upon in writing by local authorities concerned within 3 days after the filing thereof. If the application is not acted upon within said period, it is deemed approved. The only justifiable ground for denial of the application for the permit is that a prior written application by any candidate or political party for the same purpose has been approved. Denial of any application for said permit is appealable to the provincial election supervisor or to the COMELEC whose decision shall be made within 48 hours and which shall be final and executory. Notification of election registrar (Sec. 88, B.P. 881) The political party or candidate must notify the election registrar of any rally. Within 7 working days, the political party or candidate must submit to the election registrar the expenses incurred during the rally. COMELEC space, poster area, time and information bulletin COMELEC space The COMELEC shall procure space in at least one newspaper of general circulation in every province or city, or in the absence of such newspaper, in any other magazine or periodical in said province or city, which shall be known as “COMELEC Space.” COMELEC space shall be allocated to the COMELEC upon payment of just compensation, and shall be utilized exclusively by the COMELEC for public information dissemination on election-related concerns. (Sec. 8, R.A. 9006) Phil. Press Institute v. COMELEC The Supreme Court declared sec. 2 of COMELEC Resolution 2722 compelling print media companies to donate “COMELEC Space” as null and void. Sec. 2 does not constitute a valid exercise of the power of eminent domain. The element of necessity for the taking has not been shown by COMELEC. There is no showing that the members of the Philippine Press Institute are unwilling to sell print space. Furthermore, it has not been demonstrated that the COMELEC has been granted the power of eminent domain by the Constitution or the Legislature. In addition,

90 sec. 2 does not constitute a valid exercise of police power. First, there was no effort to show that police power was constitutionally delegated to the COMELEC. Second, no attempt was made to demonstrate that a real and palpable or urgent necessity for the taking of print space confronted the COMELEC. Thus, COMELEC cannot procure print space without paying just compensation therefor. COMELEC time The COMELEC shall likewise air time in at least 1 major broadcasting station or entity in every province or city, or in the absence of such entity, in any radio or TV station in said province or city, which shall be known as "COMELEC time." Such COMELEC time shall be allocated to the COMELEC free of charge, and shall be utilized exclusively by the COMELEC for public information dissemination on election-related concerns. (Sec. 8, R.A. 9006) Telecommunications and Broadcast Attorneys of the Philippines v. COMELEC (289 SCRA 337) In this case, which questioned the COMELEC's power under Sec. 92, BP 881 to require TV stations to give air time for candidates free of charge, the Supreme Court held that such power is valid and constitutional, being an exercise of the plenary police power of the State to promote the general welfare. The Court gave the following reasons: (1)All broadcasting, whether by radio or TV, is licensed by the government, and the franchise issued to a broadcast station is always subject to amendment, alteration or repeal by Congress when the common good requires. There is no better measure for the common good than one for free airtime for the benefit not only of the candidates but even more of the public, particularly the voters, so that they will be informed of the issues in an election, for after all, it is the right of the viewers and listeners, not of the broadcasters, that is paramount. (2)The COMELEC does not take over the operation of radio and television stations, but only the allocation of airtime to the candidates, to ensure equal opportunity, time and the right to reply, as mandated by the Constitution. (3)There are substantial distinctions in the characteristics of the broadcast media from those of the print media which justify the different treatment accorded to each for purposes of free speech, viz: the

physical limitations of the broadcast spectrum, the uniquely pervasive presence of the broadcast media in the lives of all Filipinos, and the earlier ruling that the freedom of TV and radio broadcasting is somewhat lesser than the freedom accorded to the print media. COMELEC poster area (Sec. 9, R.A. 9006) The COMELEC may authorize political parties and party-list groups to erect common poster areas for their candidates in not more than 10 public places such as plazas, markets, barangay centers and the like, wherein candidates can post, display or exhibit propaganda. Such poster areas shall not exceed 12 feet by 16 feet or its equivalent. For independent candidates with no political parties, the size of the common poster area must not exceed 4 feet by 6 feet or its equivalent. COMELEC information bulletin (Sec. 93, B.P. 881) The COMELEC shall cause the printing and supervise the dissemination of bulletins which shall contain the picture, bio-data and program of government of every candidate. Any candidate can reprint these bulletins, provided it is an exact replica and shall bear the candidate’s name who caused the reprint and the printer’s name. COMELEC official sample ballot (Sec. 185, B.P. 881, as amended by R.A. 7904) At least 30 days before an election, the COMELEC shall furnish every registered voter with an unfilled official sample ballot, voter information sheet, and a list of all registered national, provincial and city candidates to be voted in the said election. The information sheet shall include the voter's name, address, the precinct and the place where he is registered, and simplified instructions as to the casting of votes. The names of the candidates shall be listed in alphabetical order under their respective party affiliation and a one-line statement not to exceed 3 words of their occupation or profession. Persons nominated under the party-list system shall likewise be included in the above-mentioned list. Public forum (Sec. 9, R.A. 6646) political

The COMELEC shall encourage nonnon-partisan private or civic

91 organization to initiate and hold in every city and municipality, public for a at which all registered candidates for the same office may simultaneously and personally participate to present, explain and/or debate on their campaign platforms and programs and other like issues. The COMELEC shall promulgate the rules and regulations for the holding of such to assure its non-partisan character and equality of access thereto by all candidates.

a petition filed by the Manila Standard and Social Weather Station, Inc. (SWS) The decision, which was penned by Justice V.V. Mendoza, stated that the provision "constitutes an unconstitutional abridgment of freedom of speech, expression and the press… as it imposes prior restraint and therefore, a direct and total suppression of a category of expression even for a limited period." (Exact title of case and citation not available as of this writing. See front page of Philippine Star, May 6, 2001, for details.)

Election surveys

Exit polls

(Sec. 5, R.A. 9006)

(Sec. 5.5, R.A. 9006)

Election surveys, defined

Exit polls may only be taken subject to the following requirements:

Election surveys refer to the measurement of opinions and perceptions of the voters as regards a candidate's popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters' preference for candidates or publicly discussed issues during the campaign period.

•Pollsters shall not conduct their surveys within 50 meters from the polling place, whether said survey is taken in a home, dwelling place and other places; •Pollsters shall wear distinctive clothing;

Information required to be published in the survey

•Pollsters shall inform the voters that they may refuse to answer; and

During the election period, any person, natural as well as juridical, candidate or organization who publishes a survey must likewise publish the following information:

•The result of the exit polls may be announced after the closing of the polls on election day, and must clearly identify the total number of respondents, and the places where they were taken. Said announcement shall state that the same is unofficial and does not represent a trend.

•The name of the person, candidate, party or organization who commissioned or paid for the survey; •The name of the person, polling firm or survey organization who conducted the survey; •The period during which the survey was conducted, the methodology used, including the number of individual respondents and the areas from which they were selected, and the specific questions asked; •The margin of error of the survey; •For each question for which the margin of error is greater than that reported above, the margin of error for that question; and •A mailing address and telephone number, indicating it as an address or telephone number at which the sponsor can be contacted to obtain a written report regarding the survey in accordance with Sec. 5.3 of R.A. 9006. It must be noted that Sec. 5.4 which prohibits the publication of surveys 15 days (for national candidates) or 7 days (for local candidates) before an election was declared unconstitutional by the Supreme Court upon

ABS-CBN v. COMELEC (January 28, 2000) In this case, the Supreme Court held that exit polls are valid. They do not violate the principle of secrecy of the ballot since such polls are purely voluntary on the part of the voter and do not require him or her to reveal his or her ballot. ELECTION CONTRIBUTIONS & EXPENDITURES Contributions Contributions defined (Sec. 94a, B.P. 881) "Contribution” includes a gift, donation, subscription, loan, advance or deposit of money or anything of value, or a contract, promise or agreement to contribute, whether or not legally enforceable, made for the purpose of influencing the results of the elections but shall not include services

92 rendered without compensation by individuals volunteering a portion or all of their time in behalf of a candidate or political party. It shall also include the use of facilities voluntarily donated by other persons, the money value of which can be assessed based on the rates prevailing in the area. Prohibited contributions (Sec. 95, B.P. 881)

•Public or private financial institutions. However, they are not prohibited from making any loan to a candidate or political party if: (a)the financial institutions are legally in the business of lending money, (b)the loan is made in accordance with laws and regulations; AND, (c)the loan is made in the ordinary course of business. •Natural and juridical persons operating a public utility or in possession of or exploiting any natural resources of the nation; •Natural and juridical persons who hold contracts or sub-contracts to supply the government or any of its divisions, subdivisions or instrumentalities, with goods or services or to perform construction or other works; •Natural and juridical persons who have been granted franchises, incentives, exemptions, allocations or similar privileges or concessions by the government or any of its divisions, subdivisions or instrumentalities, including GOCCs; •Natural and juridical persons who, within 1 year prior to the date of the election, have been granted loans or other accommodations in excess of P100,000 by the government or any of its divisions, subdivisions or instrumentalities including GOCCs; •Educational institutions which have received grants of public funds amounting to no less than P100,000.00; or

the

Armed

•Foreigners

and foreign corporations, including foreign governments. (Sec. 96, BP 881) It is unlawful for any person to solicit or receive any contribution from any of the persons or entities enumerated. Prohibited raising of funds

No contribution for purposes of partisan political activity shall be made directly or indirectly by any of the following:

•Officials

Service, or members of Forces of the Philippines;

employees

in

the

Civil

It is unlawful for any person to hold the following for the purpose of raising funds for an election campaign or for the support of any candidate from the commencement of the election period up to and including election day: •dances, •lotteries, •cockfights, •games, •boxing bouts, •bingo, •beauty contests, •entertainments, cinematographic, theatrical other performances

or or

It is unlawful for any person or organization, whether civic or religious, directly or indirectly, to solicit and/or accept from any candidate for public office, or from his campaign manager, agent or representative, or any person acting in their behalf, any gift, food, transportation, contribution or donation in cash or in kind from the commencement of the election period up to and including election day. Note, however, that normal and customary religious stipends, tithes, or collections on Sundays and/or other designated collection days, are excluded from this prohibition. Expenditures Expenditures defined (Sec. 94b, BP 881) “Expenditure" includes the payment or delivery of money of anything of value, or a contract, promise or agreement to make an expenditure, for the purpose of influencing the results of the election. It shall also include the use of facilities personally owned by the candidate, the money value of the use of which can be assessed based on the rates prevailing in the area.

93 Limitations on expenditures (Sec. 13, R.A. 7166) The aggregate amount that a candidate or registered political party may spend for an election campaign shall be as follows: For Candidates

•President and Vice-President: P 10 for every voter currently registered

•Other

Candidates: P 3 for every voter current registered in the constituency where he filed his certificate of candidacy

•Candidates Party:

Without a Political P 5 for every voter

For Political Parties P 5 for every voter currently registered in the constituency or constituencies where it has official candidates Lawful expenditures (Sec. 102, B.P. 881) No candidate or treasurer of a political party shall, directly or indirectly, make any expenditure except for the following purposes:

(a)For

traveling expenses of the candidates and campaign personnel in the course of the campaign and for personal expenses incident thereto; (b)For compensation of campaigners, clerks, stenographers, messengers, and other persons actually employed in the campaign; (c)For telegraph and telephone tolls, postage, freight and express delivery charges; (d)For stationery, printing and distribution of printed matters relative to candidacy; (e)For employment of watchers at the polls; (f)For rent, maintenance and furnishing of campaign headquarters, office or place of meetings; (g)For political meetings and rallies and the use of sound systems, lights and decorations during said meetings and rallies; (h)For newspaper, radio, TV and other public advertisements;

(i)For

employment of counsel, the cost of which shall not be taken into account in determining the amount of expenditures which a candidate or political party may have incurred; (j)For copying and classifying list of voters, investigating and challenging the right to vote of persons registered in the list; such costs shall not be taken into account in determining the amount of expenses which a candidate or political party may have incurred; (k)For printing sample ballots in such color, size and maximum number as may be authorized by the COMELEC, such costs not to be taken into account in determining the amount of expenses which a candidate or political party may have incurred; Persons authorized to incur expenditures (Sec. 103, B.P. 881) Only the following persons are permitted by law to make any expenditure in support of or in opposition to any candidate or political party: •The candidate; •The treasurer of a political party; •Any person authorized by such candidate or treasurer. Expenditures duly authorized by the candidate or the treasurer of the political party shall be considered as expenditures of such candidate or political party. The authority to incur expenditures must: (1)be in writing; (2)be signed by the candidate or the treasurer of the party; (3)show the expenditures so authorized; (4)state the full name and exact address of the person so designated; and (5)be furnished the COMELEC. Prohibited donations (Sec. 104, B.P. 881) No candidate, his or her spouse or any relative within the second civil degree of consanguinity or affinity, or his campaign manager, agent or representative shall during the campaign period, on the day before and on the day of the election, directly or indirectly, make any donation, contribution or gift in cash or in kind, or undertake or contribute to the construction or repair of roads, bridges, school buses, puericulture centers, medical clinics and

94 hospitals, churches or chapels cement pavements, or any structure for public use or for the use of any religious or civic organization. The same prohibition applies to treasurers, agents or representatives of any political party. Normal and customary religious dues or contributions, such as religious stipends, tithes or collections on Sundays or other designated collection days, as well as periodic payments for legitimate scholarships established and school contributions habitually made before the prohibited period, are excluded from the prohibition. Duties of candidates and political parties Accounting of contributions and expenditures (Sec. 105, B.P. 881) Every person receiving contributions or incurring expenditures by authority of the candidate or treasurer of the party shall, on demand by the candidate or treasurer of the party, render to the candidate or treasurer concerned a detailed account thereof with proper vouchers or official receipts. Such accounting must be given within 5 days after receiving such contribution or incurring such expenditure. Keeping of detailed records of contributions and expenditures Keeping of records Every candidate and treasurer of the party shall keep detailed, full, and accurate records of all contributions received and expenditures incurred by him and by those acting under his authority, setting forth therein all information required to be reported. (Sec. 106b, B.P. 881) Issuance of receipt Every candidate, treasurer of the political party, and person acting under the authority of such candidate or treasurer has the duty to: (1)issue a receipt for every contribution received; and (2)keep a receipt stating the particulars of every expenditure made. Preservation of records Records

of

contributions

and

expenditures must be preserved for at least 3 years after the holding of the election to which they pertain, for their production for inspection by the COMELEC or its duly authorized representative, or upon presentation of a subpoena duces tecum duly issued by the COMELEC. Failure of the candidate or treasurer to preserve such records or documents shall be deemed prima facie evidence of violation of this provision of law. (Sec. 106c, B.P. 881) Filing of Statement of Contributions and Expenditures Duty to file Within 30 days after election day, the candidate and the treasurer of the political party must file with the COMELEC duplicate copies of the full, true and itemized statement of all contributions and expenditures in connection with the election. (Sec. 14, R.A. 7166) This requirement to file the statement covers even those who withdrew as candidates after having filed their certificates, because Sec. 14 of R.A. 7166 does not make any distinction. (Pilar v. COMELEC, 245 SCRA 759) Duty of election registrar candidates of their duty

to

advise

It is the duty of the city or municipal election registrar to advise in writing, either by personal delivery or by registered mail, within 5 days from the election date, all candidates to comply with the obligation to file their statements. (Sec. 14, R.A. 7166) Form and contents of statement The statement shall be in writing, subscribed and sworn to by the candidate or by the treasurer of the party, shall be complete as of the date next preceding the date of filing, and shall set forth in detail the following: (a)the amount of contribution, date of receipt, and the full name and exact address of the person from whom the contribution was received; (b)the amount of every expenditure, the date thereof, the full name and exact address of the person to whom payment was made, and the purpose of the expenditure; (c)any unpaid obligation, its nature and amount, and to whom said obligation is owing; and (d)such other particulars which the COMELEC may require.

95 If the candidate or treasurer of the party has received no contribution, made no expenditure, or has no pending obligation, the statement shall reflect such fact. (Sec. 109, B.P. 881) Effect of Failure to File No person elected to any public office shall enter upon the duties of his office until he has filed the statement of contributions and expenditures. (Sec. 14, R.A. 7166) The same prohibition also applies if the political party of the winning candidate fails to file the statement within the required period Failure to file the required statements or reports constitutes an administrative offense. Offenders are liable to pay an administrative fine ranging from P 1,000.00 to P 30,000.00. Such fine shall be paid within 30 days from receipt of notice of such failure; otherwise, the COMELEC shall enforce the same by issuing a writ of execution against the properties of the offender. The commission of a second or subsequent offense under this section subjects the offender to an increased fine ranging from P 2,000.00 to P 60,000.00, and to a perpetual disqualification to hold office. (Sec. 14, R.A. 7166) Except: office

(c)File

with the COMELEC a report setting forth the full names and exact addresses of the candidates, treasurers of political parties and other persons incurring such expenditures, the nature or purpose of each expenditure, the date and costs thereof, and such other particulars as the COMELEC may require within 30 days after the day of the election. The report shall be signed and sworn to by the supplier or contractor, or by the president or general manager in case of a business firm. (Sec. 112, B.P. 881) Repeal of Sec. 105-112 of B.P. 881 as election offenses Prior to R.A. 7166, failure to comply with the duties imposed by Sec. 105-112 of B.P. 881 constituted election offenses that were punishable under Art. 262 of B.P. 881. However, Sec. 39 of R.A. 7166 repealed the inclusion of said provisions as election offenses, with such repeal to have retroactive effect. THE ELECTION PROPER

Candidates for elective barangay

Pilar vs. COMELEC (245 SCRA 759) The Supreme Court said that the requirement to file the statement covers even those who WITHDREW as candidates after having filed their certificates because sec 14, RA 7166 does not make any distinction. Duties of contractors, suppliers and business firms Persons or firms to whom any electoral expenditure is made have the duty to:

IN GENERAL What constitutes an election An election is constituted when there is a plurality of votes sufficient for a choice conditioned on the plurality of valid votes or a valid constituency regardless of the actually number of votes cast. Otherwise, there would be no winner. It is not necessary that a majority of voters should have elected the winning candidate. Even if a candidate wins due to a minority vote, if the election is lawfully held, a plurality of the majority is sufficient.

(a)Require every agent of a candidate or of the treasurer of a political party to present written authority to incur electoral expenditures in behalf of such candidate or treasurer.

Those who did not vote are assumed to assent to the action of those who voted.

(b)Keep

Grounds for elections

and preserve at its place of business for a period of 3 years after the date of the election copies of such written authority, contracts, vouchers, invoices and other records and documents relative to said expenditures, subject to inspection by the COMELEC or its authorized representative.

Failure of elections declaration

of

failure

of

In the case of Joseph Peter Sison v. COMELEC (G.R. No. 134096, March 3, 1999), the Supreme Court said that there are only 3 instances where a failure of elections may be declared, namely:

(1)The

election in any polling place has not been held on the date fixed on

96 account of force majeure, violence, terrorism, fraud, or other analogous causes;

7166)

(2)The

The COMELEC shall call for the holding of the election on a date reasonably close to the date of the election not held, suspended, or which resulted in a failure to elect but not later than 30 days after the cessation of the cause for such postponement or suspension of the election or failure to elect. (Sec. 5, B.P. 881)

election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud, or other analogous causes; 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 on account of force majeure, violence, terrorism, fraud or other analogous causes. The causes for the declaration of a failure of election may occur before or after the casting of votes or on the day of the election. (Sec. 4, R.A. 7166) How declared The declaration of a failure of election is decided by the COMELEC en banc by a majority vote of its members. (Sec. 4, R.A. 7166) Procedure for declaration of failure of elections shall be discussed in the last part of this reviewer. Holding or continuation of election The COMELEC shall call for the holding or continuation of the election on a date reasonably close to the date of the election not held, suspended, or which resulted in a failure to elect but not later than 30 days after the cessation of the cause of such suspension or failure to elect. (Sec. 6, B.P. 881) Postponement of elections Grounds for postponement of elections An election may be postponed by the COMELEC either motu proprio or upon a verified petition by any interested party when there is violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, or other analogous cause of such a nature that the holding of a free, orderly and honest election becomes impossible in any political subdivision. (Sec. 5, B.P. 881) How declared The declaration of a postponement of election is decided by the COMELEC en banc by a majority vote of its members. (Sec. 4, R.A.

Holding of election

Special election (Sec. 4, R.A. 7166) In case a permanent vacancy occurs in the Senate or House of Representatives at least 1 year before the expiration of the term, the COMELEC shall call and hold a special election to fill the vacancy not earlier than 60 days nor longer than 90 days after the occurrence of the vacancy. However, in case of such vacancy in the Senate, the special election shall be held simultaneously with the succeeding regular election. CASTING OF VOTES Secrecy of the Ballot The distinguishing feature of this mode of voting, is that every voter is thus enabled to secure and preserve the most complete and violable secrecy in regard to the person for whom he votes, and thus escapes the influences which, under the system of oral suffrages, may be brought to bear upon him with a view to overbear and intimidate, and thus prevent the real expression of public sentiment. A legal voter will not be compelled to disclose for whom he voted. Moreover, third persons are not permitted to testify to its purport. The voter may, however, if he chooses, waive his privilege of secrecy and voluntarily disclose the contents of his ballot. Thus, it was held in the case of ABS-CBN v. COMELEC (January 28, 2000) that exit polls are valid since they are voluntary and do not require a voter to reveal the contents of his or her ballot if he or she does not want to. Method of voting Voter must vote in person. The voter must personally deposit his

97 ballot. By the principle that what is done in one’s presence and by his express direction is, in law, his act, an infirm or aged voter may undoubtedly employ another to perform the mechanical act of depositing in the voter’s presence the ballot which the latter has himself selected. Voter must vote but once. Each voter shall vote but once, at any election, for each office or measure to be voted for. Voter need not vote the whole ticket. It is entirely optional with the voter whether he will vote at all or not, and he may vote for such offices as he chooses and for such of the several persons to be chosen to the same office as he prefers.

votes, in which case the voting shall continue but only to allow said voters to cast their votes without interruption. The poll clerk shall prepare a complete list containing the names of said voters consecutively numbered, and the voters so listed shall be called to vote by announcing each name repeatedly three times in the order in which they are listed. Any voter in the list who is not present when his name is called out shall not be permitted to vote. Board of Election Inspectors At least 30 days before the date when the voters list is to be prepared, in the case of a regular election or 15 days before a special election, the COMELEC shall, directly or through its duly authorized representatives, constitute a board of election inspectors for each precinct. Composition

Absentee Voting Under RA 7166, absentee voting as provided for in EO 157 shall apply to the elections for President, Vice-President, and Senators ONLY and shall be limited to: •members of the AFP •members of the PNP •other government officers and employees who are duly registered voters and who, on election day, may temporarily be assigned in connection with the performance of their election duties to places where they are not registered voters. Block Voting There is no longer block voting under current Philippine Election Laws, having been expressly prohibited by Art. IX-C, Sec. 7 of the 1987 Constitution. However, it must be noted that under the party-list system, votes may be counted in favor of political parties, organizations or coalitions rendered under said system. This, in a way, may be construed as the exception to the prohibition on block voting. Voting Hours GENERAL RULE: The casting of votes shall be at 7 a.m. and shall end at 3 p.m. EXCEPTION: When there are voters present within 30 meters in front of the polling place who have not yet cast their

The Board of Election Inspectors is composed of three (3) persons, namely: •chairman •poll clerk •member The entire Board shall be composed of public school teachers, priority to be given to those with permanent appointments. (Sec. 164, BP 881, as amended by Sec. 13, R.A. 6646) However, in case there are not enough public school teachers, the following may be appointed for election duty: •teachers in private schools; •employees in the civil service; or •other citizens of known probity and competence who are registered voters of the city or municipality Qualifications 1) public school teachers 2) be of good moral character and irreproachable reputation 3) a registered voter of the City or municipality 4) never been convicted of any election offense or any other crime punishable by more than 6 months imprisonment 5) able to speak and write English or the local dialect Disqualifications 1) must not be related within the 4th civil degree by consanguinity or affinity to any member of the BEI or to any

98 candidate to be voted for in the polling places 2) must not engage in any partisan political activity Powers of the Board of Inspectors (Sec. 168, BP 881)

Election

The board of election inspectors shall have the following powers and functions: •Conduct the voting and counting of votes in their respective polling places; •Act as deputies of the Commission in the supervision and control of the election in the polling places wherein they are assigned, to assure the holding of the same in a free, orderly and honest manner; •Perform such other functions prescribed by the Omnibus Election Code or by the rules and regulations promulgated by the COMELEC Proceedings Shall be public and held only in the polling places. Exception: the counting of the votes and the preparation of the return may be done in the nearest safe baranggay or school building within the municipality BY unanimous vote of the board and concurred in by the majority of the watchers present IF there is imminent danger of violence, terrorism, disorder or similar causes. The BEI shall act through its Chariman, and shall decide without delay by majority vote all questions which may arise in the performance of its duties. Prohibitions Inspectors

on the

Board

of

Election

No member of the Board shall, before the termination of the voting, make any announcement as to whether a certain registered voter has already voted or not, as to how many have already voted or how many so far have failed to vote, or any other fact tending to show or showing the state of the polls, nor shall he make any statement at any time as to how any person voted, except as witness before a court. (Sec. 205, BP 881) Watchers Each candidate and each political party or coalition of political parties duly registered with the Commission including those participating under the party list system of

representation, may appoint two watchers, to serve alternately, in every polling place. However, candidates for Sangguniang Panlalawigan, Sangguniang Lunsod and Sangguniang Bayan, belonging to the same ticket or slate shall collectively entitled to 1 watcher. Duly accredited citizens’ arms of the Commission, shall be entitled to appoint a watcher in every polling place. Other civic, religious, professional, business, service, youth, and other similar organization, with prior authority from the Commission, shall be entitled collectively, to appoint 1 watcher in polling place. Qualifications: 1) Qualified voter of the city or municipality 2) Good reputation 3) Never been convicted of any election offence or any crime 4) Knows how to read and write English, Pilipino or any of the prevailing local dialects 5) Not related within the 4th civil degree by consanguinity or affinity to any member of the BEI in the polling place where he seeks appointment as watcher. Rights and duties: 1) Stay in the space reserved for then inside the polling place 2) Witness and inform themselves of the proceedings of the BEI 3) Take notes, photographs of proceedings 4) File protests against any irregularities or violation of law 5) Be furnished with a certificate of the number of votes cat for each candidate, duly signed and thumb marked by the members of the BEI. CASTING OF VOTES Authentication of the ballot In every case, before delivering official ballot to the voter, the chairman of Board of Election Inspectors shall affix signature at the back of the ballot in presence of the voter.

an the his the

Failure to authenticate shall be noted in the minutes of the Board of Election Inspectors and shall constitute an election offense. (Sec. 24, R.A. 7166) There is nothing in the law that provides that a ballot which has not been

99 authenticated shall be deemed spurious. The law merely makes the Chairman of the Board of Election Inspectors accountable for such an omission. (Libanan v. HRET, G.R. No. 129783, December 22, 1997) Thus, it was held in Punzalan v. COMELEC (289 SCRA 702) that the ballot is valid even if it is not signed at the back by the BEI Chairman. Preparing the ballot and voting (1) The voter, upon receiving his folded ballot, shall forthwith proceed to one of the empty voting booths and shall there fill his ballot by writing in the proper space for each office the name of the individual candidate for whom he desires to vote. No voter shall be allowed:

•to enter a booth occupied by another, nor enter the same accompanied by somebody, except as provided for in the succeeding section hereof;

•to

stay therein for a longer time than necessary

•to

speak with anyone other than as herein provided while inside the polling place. It shall be unlawful:

•to prepare the ballot outside the voting booth;

•to

exhibit its contents to any person

•to

erase any printing from the ballot

•to

intentionally tear or deface the same or put thereon any distinguishing mark;

•to

use carbon paper, paraffin paper, or other means for making a copy of the contents of the ballot;

•to make use of any other means to identify the vote of the voter. Preparation of Ballots for Illiterates and Disabled Persons (Sec. 196, B.P. 881) No voter shall be allowed to vote as an illiterate or as a physically disabled unless it is so indicated in his registration record. A voter who is illiterate or physically

unable to prepare the ballot by himself may be assisted in the preparation of his ballot by the following: (a)a relative by affinity or consanguinity within the fourth civil degree, or (b)if (a) is not available, then any person of his confidence who belongs to the same household; or (c)any member of the board of election inspectors. In no case shall an assistor assist more than 3 times. The person assisting shall: •prepare the ballot for the illiterate or disabled voter inside the voting booth; •bind himself in a formal document under oath to fill out the ballot strictly in accordance with the instructions of the voter and not to reveal the contents of the ballot prepared by him. A violation of these 2 duties shall constitute an election offense. Spoiled Ballots If a voter should accidentally spoil or deface a ballot in such a way that it cannot lawfully be used, he shall surrender it folded to the chairman who shall note in the corresponding space in the voting record that said ballot is spoiled. The voter shall then be entitled to another ballot which the chairman shall give him after announcing the serial number of the second ballot and recording the serial number in the corresponding spaces in the voting record. No voter shall change his ballot more than once. (Sec. 14, R.A. 8436) The spoiled ballot shall, without being unfolded and without removing the detachable coupon, be distinctly marked with the word "spoiled" and signed by the board of election

100 inspectors on the endorsement fold thereof and immediately placed in the compartment for spoiled ballots. (2) After the voter has filled his ballot he shall fold it in the same manner as when he received it and return it to the chairman. (3) In the presence of all the members of the board of election inspectors, he shall affix his thumbmark on the corresponding space in the coupon, and deliver the folded ballot to the chairman. (4) The chairman, in the presence and view of the voter and all the members of the board of election inspectors, without unfolding the ballot or seeing its contents, shall verify its number from the voting record where it was previously entered. Any ballot whose number does not coincide with the number of the ballot delivered to the voter, as entered in the voting record, shall be considered as spoiled and shall be so marked and signed by the members of the board of election inspectors. (5) The voter shall affix his thumbmark by the side of his signature in the space intended for that purpose in the voting record and the chairman shall apply silver nitrate and commassie blue on the right forefinger nail or on any other available finger nail, if there be no forefinger nail. (6) The chairman shall sign in the proper space beside the thumbmark of the voter. Note that the absence of the signature of the chairman in the ballot given to a voter as proof of the authenticity of the ballot, is fatal. (7) The chairman, after finding everything to be in order, shall then detach the coupon in the presence of the board of election inspectors and of the voter and shall deposit the folded ballot in the compartment for valid ballots, and the detached coupon in the compartment for spoiled ballots. Any

ballot

returned to the chairman whose detachable coupon has been removed not in the presence of the board of election inspectors and of the voter, shall be considered as spoiled and shall be so marked and signed by the members of the board of election inspectors. (8) The voter shall then depart. Challenge of Illegal Voters (Sec. 199, B.P. 881) Any voter or watcher may challenge any person offering to vote for not being registered, for using the name of another or suffering from existing disqualification. In such case, the board of election inspectors shall satisfy itself as to whether or not the ground for the challenge is true by requiring proof of registration or the identity of the voter. No voter shall be required to present his voter's affidavit on election day unless his identity is challenged. His failure or inability to produce his voter's affidavit upon being challenged, shall not preclude him from voting if his identity be shown from the photograph, fingerprints, or specimen signatures in his approved application in the book of voters or if he is identified under oath by a member of the board of election inspectors and such identification shall be reflected in the minutes of the board. Challenge Based on Certain Illegal Acts (Sec. 200, B.P. 881) Any voter or watcher may challenge any voter offering to vote on any of the following grounds: •that the challenged person has received or expects to receive, has paid, offered or promised to pay, has contributed, offered or promised to contribute money or anything of value as consideration for his vote or for the vote of another; •that he has made or received a promise to influence the giving or withholding of any such vote; or •that he has made a bet or is interested directly or indirectly in a bet which depends upon the result of the election.

101 The challenged person shall take a prescribed oath before the board of election inspectors that he has not committed any of the acts alleged in the challenge. Upon the taking of such oath, the challenge shall be dismissed and the challenged voter shall be allowed to vote, but in case of his refusal to take such oath, the challenge shall be sustained and he shall not be allowed to vote. Non-conclusiveness of admission challenged vote (Sec. 201, B.P. 881)

of

It must be noted that the admission of the challenged vote shall not be conclusive upon any court as to the legality of the registration of the voter challenged or his vote in a criminal action against such person for illegal registration or voting. Records or Statements to be Prepared and Kept Record of Challenges and Oaths The poll clerk shall keep a prescribed record of challenges and oaths taken in connection therewith and the resolution of the board of election inspectors in each case and, upon the termination of the voting, shall certify that it contains all the challenges made. The original of this record shall be attached to the original copy of the minutes of the voting as provided in the succeeding section. (Sec. 202, B.P. 881) Minutes of Voting and Counting of Votes The board of election inspectors shall prepare and sign a statement in four copies setting forth the following: •time the voting commenced and ended; •serial numbers of the official ballots and election returns, special envelopes and seals received; •number of official ballots used and the number left unused; •number of voters who cast their votes; •number of voters challenged during the voting; •names of the watchers present; •time the counting of votes commenced and ended; •number of official ballots found inside the compartment for valid ballots;

•number of valid ballots retrieved from the compartment for spoiled ballots, if any; •number of ballots found folded together, if any; •number of spoiled ballots withdrawn from the compartment for valid ballots; •number of excess ballots; •number of marked ballots; •number of ballots read and counted; •time the election returns were signed and sealed in their respective special envelopes; •number and nature of protests made by watchers; •such other matters that the Commission may require. Copies of this statement after being duly accomplished shall be sealed in separate envelopes and shall be distributed as follows: •the original to the city or municipal election registrar; •the second copy to be deposited inside the compartment for valid ballots of the ballot box;

•the

third and fourth copies to the representatives of the accredited political parties. (Sec. 203, B.P. 881) List of Unused Ballots The chairman of the board of election inspectors shall prepare a list showing the number of unused ballots together with the serial numbers. This list shall be signed by all the members of the board of election inspectors, after which all the unused ballots shall be torn halfway in the presence of the members of the board of election inspectors. (Sec. 204, B.P. 881) COUNTING OF VOTES The counting of votes is conducted by the Board of Election Inspectors, which shall not adjourn or postpone or delay the count until it has been fully completed, unless otherwise ordered by the COMELEC. Counting proper Counting

to

be

Public

and

Without

102 Interruption As soon as the voting is finished, the board of election inspectors shall publicly count in the polling place the votes cast and ascertain the results. The Board shall not adjourn or postpone or delay the count until it has been fully completed, unless otherwise ordered by the COMELEC. Venue for counting of votes The COMELEC in the interest of free, orderly, and honest elections, may order the board of election inspectors to count the votes and to accomplish the election returns and other forms prescribed under the Omnibus Election Code in any other place within a public building in the same municipality or city. The public building shall not be located within the perimeter of or inside a military or police camp or reservation nor inside a prison compound. If it becomes necessary to transfer the counting of votes to a safer place on account of imminent danger of violence, terrorism, disorder or similar causes, the Board of Election Inspectors may effect such transfer by unanimous approval by the Board and concurrence by the majority of the watchers present. (Sec. 18, R.A. 6646) Manner of Counting Votes 1.The board of election inspectors shall unfold the ballots and form separate piles of one hundred ballots each, which shall be held together with rubber bands, with cardboard of the size of the ballots to serve as folders. 2.The chairman of the board of election inspectors shall take the ballots of the first pile one by one and read the names of candidates voted for and the offices for which they were voted in the order in which they appear thereon, assuming such a position as to enable all of the watchers to read such names. 3.The chairman shall sign and affix his right hand thumbmark at the back of the ballot immediately after it is counted. 4.The poll clerk, and the third member, respectively, shall record on the election returns and the tally board or sheet each vote as the names voted for each office are read. (The election returns are mandated by law to be prepared

simultaneously with the counting of the votes.) 5.After finishing the first pile of ballots, the board of election inspectors shall determine the total number of votes recorded for each candidate, the sum being noted on the tally board or sheet and on the election returns. In case of discrepancy such recount as may be necessary shall be made. The ballots shall then be grouped together again as before the reading. Thereafter, the same procedure shall be followed with the second pile of ballots and so on successively. 6.After all the ballots have been read, the board of election inspectors shall sum up the totals recorded for each candidate, and the aggregate sum shall be recorded both on the tally board or sheet and on the election returns. 7.It shall then place the counted ballots in an envelope provided for the purpose, which shall be closed signed and deposited in the compartment for valid ballots. 8.The tally board or sheet as accomplished and certified by the board of election inspectors shall not be changed or destroyed but shall be kept in the compartment for valid ballots. Duties of the Board of Election Inspectors in Counting the Votes The board’s duties are confined to the conduct of the elections and the counting of votes. The board of election inspectors does not decide the eligibility of candidates, and therefore has no authority to ignore the votes for a candidate who has filled out his certificate of candidacy in the proper form. Counting should be liberal to effectuate the will of the electorate. Voters should not be disenfranchised for technical causes. It is the duty of the board of election inspectors to issue a certificate of the number of the votes received by a candidate upon request of the watchers. All the members of the board of election inspectors shall sign the certificate. Marked Ballots Marked ballots defined

103 Marked ballots are ballots containing a distinguishing mark which would tend to identify the voter who cast such ballot. Purpose of Disallowing Marked Ballots Some unscrupulous persons taking advantage of their influence or political prestige may require voters to place a distinguishing “mark” on their ballot, in consideration of some promise, reward or other valuable consideration and to which the voters would have no escape because of the distinguishing marks required of them to place on their ballots. This threatens the independence of the voters in the exercise of their right to vote. Hence, the prohibition on marked ballots. Effect of Marked Ballots Marked ballots are invalidated in their entirety, and none of the votes therein are counted. Determination of Marked Ballots In discounting marked ballots, great care should be used in rejecting them. Election laws are designed to effectuate the will of the electorate. Only in an unmistakable case where the ballot appeared to be marked, should it be rejected. The determinative factor in the nullification of ballots for being marked as following a design or pattern, is the existence of evidence aliunde tending to show the intention or purpose in the use of the contested manner or means of voting, which is to identify the ballots. In the absence of evidence aliunde clearly showing the intention or plan was for purposes of identification, signs on ballots are presumed accidental. A majority vote of the board of election inspectors shall be sufficient to determine whether a ballot is marked or not. All marked ballots shall be placed in an envelope labeled "marked ballots" which shall be sealed and signed by the members of the board of election inspectors and placed in the compartment for valid ballots and shall not be counted. Instances of Marked Ballots Non-official ballots which the board of election inspectors may find, EXCEPT those which have been used as emergency ballots, are considered as marked ballots. Other examples of marked ballots include the following:

•Where

170 ballots were voted for in the same manner and there is evidence aliunde to prove that such manner of voting was planned. •Where the name of 1 candidate is clearly and markedly indented to the right to make the ballot easily distinguishable. •Use of two or more kinds of writing deliberately put by the voter to serve as identification marks. •Writing the name of a person who is not a candidate 3 times on 3 spaces provided for in different offices. •Expressions opposite candidates written for identification.

the the

space for purpose of

•The inclusion of the names of 2 wellknown movie stars who were not candidates. •Writing the name of a registered voter who is not a candidate. •The placing, without explanation of initials, after the corrected names of candidates for mayor and vice-mayor. •Placing a big letter “X” immediately after the name of a candidate for councilor. •The capital letter “N” opposite the printed words for senators. •Writing the word “sinador” in a place far and separate from the proper spaces for candidates. •Writing impertinent, unnecessary expression

irrelevant

and

•Placing the fingerprint of the voter without reason. •The presence of an arrow together with the words “and party”. Instances when Ballot is not Considered Marked The following ballots have been considered NOT marked: •Writing the word “sorry” after the name of a candidate as an expression of regret for committing a mistake. •Canceling names and re-writing them to conform with a sample ballot.

104 must be disregarded. •Misspelling the name of a candidate. •Illegible writings, being imprints of other names written on the ballot caused by the folding of the same. •Writing crosses and circles signifying the desistance of the voter to write any other name. •Writing a word before the name of a candidate as an appellation of affection or friendship. •Affixing the nickname of a candidate. •Innocent erasures in the spaces for the candidates. •Corrected name written over the canceled one on the space for councilor although he is a candidate for mayor.

Sanchez vs. COMELEC ( 153 SCRA 67) Appreciation of ballots is a function of the BEI, not the Board of Canvassers. Bautista vs. Castro ( 206 SCRA 305) In appreciating a ballot, the object should be to ascertain and carry into effect the intention of the voter if it can be determined with reasonable certainty. Rules for Appreciation of Ballots 211, BP 881)

(Sec.

Every ballot shall be PRESUMED VALID UNLESS there is clear and good reason to reject it. BALLOT

HOW COUNTED

Ballots containing the name of a candidate affixed thereto through any MECHANICAL process

Totally VOID

Ballot clearly appears to have been FILLED by 2 DIFFERENT PERSONS before deposited in ballot box

Totally VOID

Ballot written with CRAYON, LEAD PENCIL or INK, wholly or in part

Valid

INITIALS only or ILLEGIBLE or does NOT sufficiently identify the candidate for whom it is intended

Considered as a STRAY vote BUT shall NOT invalidate the whole ballot

Vote for 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

Considered as a STRAY vote BUT shall NOT invalidate the whole ballot

Vote for a candidate who has been disqualified by final judgment

Considered as a STRAY vote but shall not invalidate the whole ballot

Minor blemishes should not affect the validity of the ballot where the intention of the voter to vote for certain persons is discernible in the ballot.

Only candidates’ FIRST NAME or SURNAME is written, and there is NO other candidate with the same first name or surname for the same office

Vote for candidate valid

Errors in spelling, honest mistakes due to ignorance or illiteracy should not defeat the intention of the voter. However, if the ballot is so defective as to fail to show any intention, it

Only candidates’ FIRST NAME is written which when read has a SOUND SIMILAR to the SURNAME of another

Vote counted in favor of the candidate with such SURNAME

•Mistakes in writing names of local candidates in spaces for senators and writing again the names of his candidates for councilors in the proper spaces. •Unintentional, accidental, marks or words.

unintelligible

•Accidental placing of a stain. •Voting names of non-candidates in the absence of evidence that these names were used as identifying marks. Appreciation of Ballots Guiding Principles in the Appreciation of Ballots DOUBTS are to be resolved in FAVOR of the validity of ballots. The purpose is of election laws is to give effect and not to frustrate the WILL of the voter. LIBERAL CONSTRUCTION in reading the ballots, and intendments should be in favor of a reading which render the ballot EFFECTIVE rather than in favor of a conclusion which on some technical grounds would render it ineffective.

the is

105 candidate

candidate for the office for which he is running for.

If there are 2 or more candidates with the SAME FULL NAME, FIRST NAME or SURNAME, and one of them is the INCUMBENT, and on the ballot is written ONLY such full name, first name or surname

Vote counted for the INCUMBENT

Woman candidate uses her MAIDEN NAME or MARRIED NAME or BOTH, and there is another candidate with the SAME SURNAME

A ballot bearing only such surname shall be counted in favor of the candidate who is an INCUMBENT.

2 or more words are written on the SAME LINE on the ballot, and ALL of which are the SURNAMES of 2 or MORE CANDIDATES

Vote shall NOT be counted for any of them UNLESS one is the surname of the incumbent who has served for at least 1 year – counted for the INCUMBENT

2 or more words are written on DIFFERENT LINES on the ballot, ALL of which are the SURNAMES of 2 MORE CANDIDATES bearing the same surname for an OFFICE of r which the law authorizes the election of MORE THAN ONE and there are the SAME NUMBER of such SURNAMES written as there are candidates with that surname

Vote counted in favor of ALL CANDIDATES bearing the surname

1 word is written on the ballot which is the FIRST NAME of a candidate and which is also the SURNAME of his opponent

Vote counted for the OPPONENT (SURNAME)

2 words written on the ballot, 1 of which is the FIRST NAME of the candidate and the other is the SURNAME of his opponent

Vote shall NOT be counted for either

Name or surname INCORRECTLY WRITTEN which when READ has a SOUND SIMILAR to the name or surname of a candidate when correctly written (Idem sonans rule)

Vote counted in favor of such a candidate

Name or surname of a candidate appears in the

Vote shall be counted for the

space of the ballot for an office for which he is a candidate and for an office for which he is NOT a candidate

Vote for the office for which he is NOT a candidate shall be considered a STRAY vote EXCEPT when it is used to identify the voter in which case the whole ballot is VOID.

Name of a candidate is NOT written in the PROPER SPACE on the ballot but is PRECEDED by the name of the OFFICE for which he is a candidate

Vote counted for the candidate

Words written on the APPROPRIATE BLANK on the ballot is the IDENTICAL NAME or SURNAME or FULL NAME of 2 or MORE candidates for the SAME OFFICE, none of whom is the incumbent

Vote counted in favor of that candidate to whose ticket belong all the other candidates voted for in the same ballot for the same constituency.

PREFIXES such as "Sr.", "Mr.", "Datu", "Don", "Ginoo", "Hon.", "Gob." or SUFFIXES like "Hijo", "Jr.", "Segundo"

PREFIXES SUFFIXES valid

CIRCLES, CROSSES, LINES on spaces which the voter has not voted

Considered as signs of his desistance from voting and shall NOT invalidate the ballot

Space in the ballot appears a NAME of a candidate that is ERASED and another CLEARLY WRITTEN

Vote counted for the one CLEARLY WRITTEN

ACCIDENTAL tearing perforation of the ballot

Shall NOT annul it

or

AND are

Failure to remove the DETACHABLE COUPON from the ballot

Shall NOT annul the ballot

Erroneous initial of FIRST NAME accompanied by CORRECT SURNAME of the candidate

Shall NOT annul the vote

Erroneous initial of SURNAME accompanied by CORRECT FIRST NAME of

Shall NOT annul the vote

106 the candidate Erroneous MIDDLE INITIAL

Shall NOT annul the vote

The fact that there exists another person who is NOT a candidate with the same first name or surname of a candidate

Shall NOT annul the vote

COMMAS, DOTS, HYPHENS between the first name and surname of the candidate or on other parts of the ballot Traces of letter “T” or “J” or similar ones First letters or syllables of names which the voters does not continue UNINTENTIONAL or ACCIDENTAL flourishes, strokes, strains

Shall NOT invalidate the ballot UNLESS it clearly appears that they were deliberately put by the voter as IDENTIFICATION marks in which case, the ballot is VOID

NICKNAMES and APPELATIONS of affection and friendship accompanied by the FIRST NAME or SURNAME of the candidate

NICKNAME used is one by which the candidate is generally or POPULARLY KNOWN in the locality and UNACCOMPANIED by a first name or surname of the candidate

Vote counted for the candidate IF there is no other candidate for the SAME OFFICE with the SAME NICKNAME

CORRECTLY written FIRST NAME of the candidate with a DIFFERENT SURNAME

Vote NOT counted in favor of any candidate having such first name BUT the ballot is considered valid for other candidates

Candidates voted for EXCEED the number of those to be elected

Ballots totally written in ARABIC in localities where it is of GENERAL USE

VALID (to read such ballots, the board of election inspectors can use an interpreter who has shall taken an oath to read them correctly)

Note that a vote for the President is no longer considered a vote for the Vice-President running under the same ticket as the 1987 Constitution already prohibits block voting. (Although the party-list system may be deemed as an exemption to that prohibition.) Election Returns

Shall NOT annul the vote EXCEPT when such is used to identify the voter in which case, the whole ballot is VOID

2 or more candidates are voted for an office which the law authorizes election of only ONE

FIRST WRITTEN by the voter until the authorized number is covered

Vote NOT counted in favor of any of them BUT the ballot is considered valid for other candidates Valid ballot BUT the votes counted are those names which were

Definition The election returns are the official document containing the date of the election, the province, municipality and the precinct in which it is held, and the votes received by each candidate written in figures and in words. It is the document on which the Certificates of Canvass are based, and is the only document that constitutes sufficient evidence of the true and genuine results of the elections. (See Garay v. COMELEC, 261 SCRA 222) Number of Copies and Their Distribution (Sec. 27, R.A. 7166, as amended by R.A. 8045 and R.A. 8173) The board of election inspectors shall prepare in their handwriting the returns in their polling places, in the number of copies herein provided and in the form to be prescribed and provided by the COMELEC. In the election of President, VicePresident, Senators, and Members of the House of Representatives, the copies of the election returns shall be distributed as follows: 1st Copy: City or municipal board of canvassers 2nd Copy: Congress, directed to the Senate President 3rd Copy: COMELEC 4th Copy: Dominant majority party, as determined by the COMELEC 5th Copy: Dominant minority party, as determined by the COMELEC 6th Copy: Citizens' arm authorized by the COMELEC to conduct an unofficial

107 count 7th Copy: Deposited inside the compartment of the ballot box for valid ballots In the election of local officials, the copies of the election returns shall be distributed as follows: 1st Copy: 2nd Copy: 3rd Copy: 4th Copy:

City or municipal board of canvassers COMELEC Provincial board of canvassers Dominant majority party, as determined by the COMELEC 5th Copy: Dominant minority party, as determined by the COMELEC 6th Copy: Citizens' arm authorized by the COMELEC to conduct an unofficial count 7th Copy: Deposited inside the compartment of the ballot box for valid ballots Announcement of Results of Elections The chairman of the Board of Election Inspectors shall make an ORAL and PUBLIC ANNOUNCEMENT of the TOTAL number of votes in the polling place for EACH candidate by the upon the completion of the election returns. Issuance of the Certificate of Votes Certificate of votes defined The certificate of votes is a document which contains the number of votes obtained by each candidate written in words and figures, the number of the precinct, the name of the city or municipality and province, the total number of voters who voted in the precinct, and the date and time issued. It must be signed and thumb marked by each member of the Board. (Sec. 16, R.A. 6646) Duty of Board to issue certificate It is the duty of the board of election inspectors to issue a certificate of the number of the votes received by a candidate upon request of the duly-accredited watchers. (Sec. 16, R.A. 6646) Refusal to do so constitutes an election offense. (Sec. 27, R.A. 6646) Admissibility in evidence The certificate of votes is admissible in evidence to prove tampering, alteration, falsification or any anomaly committed in the election returns concerned, when duly authenticated by testimonial or documentary evidence presented to the Board of Canvassers by at least 2 members of the Board of Election Inspectors who issued the certificate. This is notwithstanding the provisions of Secs. 235 and 236 of BP 881.

The Certificate of Votes is evidence likewise of the votes obtained by the candidates. (Balindong v. COMELEC, 27 SCRA 567) However, it was held in the case of Garay v. COMELEC (261 SCRA 222) that a Certificate of Votes can never be a valid basis for canvass, and does not constitute sufficient evidence of the true and genuine results of the elections; only election returns are. Failure to present any certificate of votes shall be a bar to the presentation of other evidence to impugn the authenticity of the election returns. (Sec. 17, R.A. 6646) CANVASS Canvass and Certificate of Canvass defined The canvass of votes refers to the process by which the results in the election returns are tallied and totaled. Certificates of canvass are official tabulations of votes accomplished by district, municipal, city and provincial canvassers based on the election returns, which are the results of the ballot count at the precinct level. Nature of canvass proceedings Canvass proceedings administrative and summary in nature.

are

A majority vote of all the members of the board shall be necessary to render a decision. (Sec 255 BP 881) Any registered political party, coalition of parties, through their representatives, and any candidate has a right to be present and to counsel during the canvass of election returns. They shall have the right to examine the returns being canvassed without touching them, to make their observations thereon, and file their charges in accordance with the rules and regulations of the COMELEC. ( sec 25, RA 6646) It shall be unlawful for any officer or member of the AFP, including the national police, or any peace officer or any armed or unarmed persons belonging to an extra-legal police agency, special forces, reaction forces, strike forces, home defense forces, barangay self defense units, etc. to enter the room where the canvassing of the election returns are held, and within a radius of 50 meters from such room. ( sec 232, BP881) Grand Alliance for Democracy COMELEC ( 150 SCRA 665)

vs.

108 Where it has been determined by the COMELEC that actual voting and election by the registered voters had taken place, the election returns can not be disregarded and excluded – with the corresponding disenfranchisement of voters – but must be accorded prima facie status as bona fide reports of the result of the voting for canvassing and proclamation purposes. The summary nature of the proceedings require that written objections ( to the returns) be filed only during this stage, because it is only at this time that the inclusion or exclusion of any return is in issue; mere allegations of duress, coercion, fraud, can not invalidate the election returns which are otherwise clean on their face.

The COMELEC may order the annulment of the certificate of canvass which it found to be tampered after examining the copies of the election returns of the municipal judge and COMELEC – because all the copies of the election returns are original copies although the copy of the Municipal Board of Canvassers is the original copy. Sec 15 RA 7166, does not specify that the COMELEC shall use the copy of the election return of the Municipal Board of Canvassers in correcting a manifest error. Composition of the Board of Canvasser

(Sec. 221, BP 881, as amended by Sec. 20, RA 6646)

Mastura vs. COMELEC (285 SCRA 493) PROVINCIAL

CITY

MUNICIPAL

Provincial election supervisor or lawyer in the regional office of the COMELEC

City election registrar or a lawyer of COMELEC;

Election registrar or a representative of COMELEC

Vice Chair

provincial fiscal

city fiscal

Member

provincial of schools

city superintendent schools

Chairman

superintendent

In cities with more than 1 election registrar, COMELEC shall designate the election registrar who shall act as chairman

However, in case of non-availability, absence, disqualification due to relationship, or incapacity for any cause of any of the members

PROVINCIAL of

municipal treasurer of

of the Board of Canvassers, the COMELEC may appoint the following as substitutes, in the order named:

CITY the

most senior district school supervisor or in his absence a principal of the school district or the elementary school

Ranking lawyer COMELEC

MUNICIPAL

Chairman

Ranking lawyer COMELEC

of

the

Ranking lawyer COMELEC

of

the

Vice Chairman

(1)Provincial auditor (2)Registrar of Deeds (3)Clerk of Court nominated by the Executive Judge of the RTC; (4)Any other available appointive provincial official

(1)City auditor or equivalent; (2)Registrar of Deeds; (3)Clerk of Court nominated by the Executive Judge of the RTC; (4)Any other available appointive city official

(1)Municipal Administrator; (2)Municipal Assessor; (3)Clerk of Court nominated by the Executive Judge of the MTC; (4)Any other available appointive municipal official

Member

Same as for Vice-Chairman

Same as for Vice-Chairman

Same as for Vice-Chairman

When Ministerial

Prohibitions on the Board of Canvassers

•The

chairman and the members of the Board of Canvassers shall not be related within the 4th civil degree of consanguinity or affinity to any of the candidates whose votes will be canvassed by said board, or to any member of the said board. (Sec. 222, B.P. 881)

•No

member or substitute member of the different boards of canvassers shall be transferred, assigned or detailed outside of his official station, nor shall he leave said station without prior authority of the COMELEC during the period beginning election day until the proclamation of the winning candidates. (Sec. 223, B.P. 881)

•No

member of the board of canvassers shall feign illness in order to be substituted on election day until the proclamation of the winning candidates. Feigning of illness constitutes an election offense. (Sec. 224, B.P. 881) Jurisdiction of COMELEC over the Board of Canvassers COMELEC has direct control and supervision over the board of canvassers. Any member of the Board may, at any time, be relieved for cause and substituted motu propio by the COMELEC. (Sec. 227, B.P. 881)

If there are no irregularities in the election returns, the duty of the Board in canvassing the votes on the election returns submitted to it consists in the simple matter of arithmetic. Once the COMELEC or the board of canvassers is satisfied in the authenticity of the returns, it has no power to look beyond the face thereof, and its task of tallying is merely ministerial. When there is an error in the computation which is discovered after proclamation, the board of canvassers can simply correct the error; the remedy being purely administrative. When Quasi-Judicial The board of canvassers must be satisfied that the election returns submitted to it are genuine and authentic. Thus, the board of canvassers will not be compelled to canvass the returns when they are found to be: •obviously manufactured; •contrary to probabilities; •clearly falsified; or •not legible Canvass by the Board (Sec. 231, B.P. 881)

A canvassing board's task is to compile and add the results as they appear in the election returns transmitted to it. (Guiao v. COMELEC, 137 SCRA 366)

The Board of Canvassers must meet not later than 6:00 p.m. on election day to receive the election returns and canvass those received. The Board of Canvassers must meet continuously from day to day until the canvass is completed. The Board of Canvassers may adjourn ONLY for the purpose of awaiting other election returns. When it adjourns, it shall make a total of all votes canvassed so far for each candidate for each office furnishing the COMELEC in Manila a certified copy and to make available copies to the media and other interested parties. The Board of Canvassers must resume canvassing once more returns are received.

The COMELEC shall have direct control and supervision over the board of canvassers.

The canvass proceedings must be open and in public.

During the canvass, the Board of Canvassers prepares the Statement of Voters, which is tabulation per precinct of the votes obtain by the candidates as reflected in the election returns. It is this Statement of Votes which forces the basis of the certificate of canvass and of the proclamation.

A majority vote of all the members of the Board of Canvassers is needed in order to render a decision.

COMELEC has the power to investigate and act on the propriety or legality of the canvass of election returns made by the board of canvassers. Nature of the Board of Canvassers’ Duties

Period to Complete Canvass Subject to reasonable exceptions, the

Board of Canvassers is required to complete their canvass within the following periods:

attempts to paralyze proclamation.

the

canvassing

and

To allow a respondent to raise belated questions before the COMELEC as to the returns during the review of a case before the COMELEC, which question has not been raised before the board of canvassers, would mean undue delays in the pre-proclamation proceedings.

legislative district: 36 hours

slative district: 48 hours

Any violation of this requirement is an election offense. (Sec. 231, B.P. 881) Canvassing Committees 6646)

(Sec. 22, R.A.

The Board of Canvassers may constitute such number of canvassing committees as may be necessary for the board to complete the canvass within the period prescribed. Each committee shall be composed of 3 members, each member to be designated by the chairman and members of the board. Before the election, all candidates shall be notified in writing of the number of committees to be constituted so that they can designate their watchers in each committee. The committees shall be under the direct supervision and control of the board. Principles governing canvass proceedings

The Supreme Court can review the decisions of COMELEC ONLY in cases of grave abuse of discretion in the discharge of QUASIJUDICIAL POWERS and not in the exercise of its administrative duties. Conclusiveness of findings The findings of the board of canvassers and the certificate of election issued by them are not conclusive but are merely PRIMA FACIE evidence of the result and title to the office of those declared elected. As to all other collateral matters, the findings of the board are conclusive. However, such findings are not conclusive in a direct proceeding to try title to the office. The fact of having a plurality of votes lawfully cast is what confers title to the office UNLESS one is allowed to go behind the certificate or returns to establish title to the office before the appropriate tribunal.

There must be a strong prima facie case backed up by a specific offer of evidence, and an indication of its nature and importance has to be made out to warrant the reception of evidence aliunde, for the presentation of witnesses and the delays necessarily entailed thereby. When COMELEC has determined after investigation and examination of the voting and registration records that ACTUAL VOTING and ELECTION took place in the questioned precincts, election returns cannot be disregarded but are accorded prima facie status as bona fide reports of the result of voting for canvassing and proclamation purposes. COMELEC should guard PROCLAMATION GRABBING and

against against

Duties of the Provincial, City, District and Municipal Board of Canvassers (Sec. 28, R.A. 7 BOC Municipal

CANVASS President

PREPARE CERTIFICATE OF CANVASS President

PROCLAIM

Elected Municipal Officia

Vice-President

Vice-President

Senators

Senators

Congressmen

Congressmen

Elective Provincial Officials

Elective Provincial Officials

Elective Municipal Officials City – cities which don’t comprise at least legislative district

President

President

Vice-President

Vice-President

Senators

Senators

Congressmen

Congressmen

Elective Provincial Officials

Elective Provincial Officials

Elected City Officials

Elective City Officials City – cities comprising 1 or more legislative districts

President

President

Congress-men

Vice-President

Vice-President

Elected City Officials

Senators

Senators

Congressmen Elective City Officials District BOC – for each municipality in Metro Manila comprising a legislative district

President

President

Congress-men

Vice-President

Vice-President

Elected Municipal Officia

Senators

Senators

Congressmen Elective Municipal Officials Municipal BOC – for each component municipality in a legislative district in Metro Manila

President

President

Vice-President

Vice-President

Senators

Senators

Congressmen

Congressmen

Elected Municipal Officia

Elective Municipal Officials District BOC – in each legislative district comprising 2 municipalities in Metro Manila

President

President

Vice-President

Vice-President

Senators

Senators

Elected Congressmen in Legislative District

Congressmen Provincial

President

President

Elected congressmen

Vice-President

Vice-President

Elected Provincial Officia

Senators

Senators

Plebiscite Results

Congressmen Elective Provincial Officials Plebiscite Results

Preparation of the Certificate of Canvass and Statement of Votes Certificate of canvass The respective board of canvassers shall prepare a certificate of canvass duly signed and affixed with the imprint of the thumb of the right hand of each member, supported by a statement of the votes received by each candidate in each polling place and, on the basis thereof, shall proclaim as elected the returns; its preparation is an administrative function of the board, purely a mechanical act over which COMELEC has direct control and

candidates who obtained the highest number of votes cast in the province, city, municipality or barangay. (Sec. 231, B.P. 881) Failure to comply with this requirement shall constitute an election offense. Statement of votes The statement of votes is a tabulation per precinct of votes garnered by candidates as reflected in the election supervision. The Statement of Votes supports the

certificate of canvass and is the basis of proclamation. Consequently, any error in the Statement of Votes would affect the proclamation made on the basis thereof.

1st copy:

Congress, directed to the Senate President for use in the canvass of election results for President and Vice-President

Failure to object to the Statement of Votes before the Board of Canvassers does not constitute a bar to raising the issue for the first time before the COMELEC, as the law is silent as to when such objection may be raised.

2nd copy:

COMELEC, for use in the canvass of the election results for Senators

3rd copy:

To be kept by the chairman of the board of canvassers

4th copy:

Citizens' arm designated by the COMELEC to conduct mediabased unofficial count

Number of Copies of the Certificates of Canvass and Their Distribution (Sec. 29, R.A. 7166) City or Municipal Board of Canvassers: The City or Municipal Board of Canvassers shall prepare the certificates of canvass for President, Vice-President, Senators, Members of the House of Representatives, and Elective Provincial Officials in 7 copies to be distributed as follows: 1st copy:

Provincial board of canvassers – for canvassing of election results for President, VicePresident, Senators, Members of the House of Representatives and Elective Provincial Officials

2nd copy:

COMELEC

3rd copy:

To be kept by the chairman of the board of canvassers

4th copy:

Citizens' arm designated by the COMELEC to conduct mediabased unofficial count

5th to 7th copies: Representatives of any 3 of 6 major political parties according to the voluntary agreement of the parties; if there is no agreement, COMELEC shall decide based on the criteria under sec. 26 of RA 7166 City Boards of Canvassers of cities comprising one or more legislative districts, Provincial Boards of Canvassers, and District Boards of Canvassers in the Metro Manila area: The foregoing Boards of Canvassers shall prepare the certificates of canvass for President, Vice-President and Senators in 7 copies to be distributed as follows:

5th to 7th copies: Representatives of any 3 of 6 major political parties according to the voluntary agreement of the parties; if there is no agreement, COMELEC shall decide based on the criteria under sec. 26 of RA 7166 Congress as the National Board of Canvassers (Sec. 30, R.A. 7166) Congress shall determine the authenticity and due execution of the certificate of canvass for President and Vice President as accomplished and transmitted by the local board of canvassers, on a showing that:

(1)Each

certificate was executed, signed and thumb marked by the chairman and members of the board of canvassers and transmitted to Congress by them; (2)Each certificate contains the names of all the candidates for President, VicePresident, and their corresponding votes in words and in figures; and (3)There exists no discrepancy in other authentic copies of the certificate or in the votes both in words and figures in the same certificate. Completion of the Certificate of Canvass If the certificate of canvass appears to be incomplete, the Senate President shall require the board of canvassers concerned to TRANSMIT (by personal delivery within 2 days from notice) the election returns from the polling places that were not included in the certificate of canvass and supporting

statements. When there appear erasures or alterations in the certificate of canvass which may cast doubt as to the veracity of the number of votes stated therein and may affect the result of the election, Congress shall, for the sole purpose of verifying the actual number of votes, COUNT the votes as they appear in the copies of the election returns submitted to it, upon request of a presidential or vicepresidential candidate or their party. (Sec. 30, R.A. 7166) Canvass of Votes for the President and Vice-President (Sec. 24, R.A. 8436) The certificates of canvass for President and Vice-President shall be duly certified by the board of canvassers of each province or city. The certificates of canvass for President and Vice-President shall be transmitted to Congress, directed to the Senate President. Upon receipt of the certificates of canvass, the Senate President shall not later than 30 days after the day of the election OPEN all the certificates in the presence of the Senate and the House of Representatives in joint public session. Congress upon the determination of the authenticity and due execution thereof, shall canvass the votes. The person having the highest number of votes shall be proclaimed elected. In case 2 or more persons shall have an equal and highest number of votes, one of them shall be chosen by vote of MAJORITY of all the members of BOTH the Senate and the House of Representatives, voting separately. (To be discussed in the last part of this reviewer.) Makalintal vs. Comelec The Overseas Absentee Voting Act of 2003 insofar as it grants sweeping authority to the Comelec to proclaim all winning candidates, is unconstitutional as it is repugnant to sec 4 art VII of the Constitution, which vests in Congress the authority to proclaim the winning Presidential and Vice Presidential candidates. Ruy Elias Philippines

Lopez

Congress

vs.

Senate

of

the

preliminary determination of the authenticity and due execution of the certificates of canvass to a Joint Congressional Committee constituted under the Rules adopted by the Joint Session of Congress. Pimentel Jr. vs. Joint Committee of Congress to Canvass the Votes Cast for President and Vice President 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. PROCLAMATION Duties of Board of Canvassers After the canvass of election returns, in the absence of a perfected appeal to the COMELEC, the Board of Canvassers shall proclaim the candidates who obtained the highest number of votes cast in the province, city, municipality or barangay, on the basis of the certificates of canvass. Failure to comply with this duty constitutes an election offense. (Sec. 231, B.P. 881) The Board of Canvassers shall not proclaim any candidate as winner unless authorized by the COMELEC after the latter has ruled on any objections brought to it on appeal by a losing party. Any proclamation made in violation hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election. Once the Board of Canvassers has completed its duty, the board cannot meet again and re-canvass the votes or reverse their prior decision and announce different results. When proclamation void A proclamation is void when it is based on incomplete returns (Castromayor v. COMELEC, 250 SCRA 298) or when there is yet no complete canvass (Jamil v. COMELEC, G.R. No. 123648, Dec. 15, 1997). A void proclamation is no proclamation at all, and the proclaimed candidate’s assumption into office cannot deprive the COMELEC of its power to annul the proclamation. Utto vs. Comelec (Gr 150111 Jan 31, 2002)

may

validly

delegate

the

An incomplete canvass of votes is

illegal and cannot be made the basis of a proclamation. A canvass cannot be reflective of the true vote of the electorate unless all returns are considered and none is omitted. The fact that a candidate illegally proclaimed has assumed office is not a bar to the exercise by the Comelec of the authority to annul any canvass and proclamation illegally made. Where a proclamation is null and void, the proclaimed candidate’s assumption of office cannot deprive the Comelec of the power to declare such a proclamation a nullity. Partial proclamation (Sec. 21, R.A. 7166) Notwithstanding the pendency of any pre-proclamation controversy, the COMELEC may summarily order the proclamation of other winning candidates whose election will not be affected by the outcome of the controversy. Election Resulting in a Tie (Sec. 240, B.P. 881) A tie occurs when: (a) 2 or more candidates receive an equal and highest number of votes; or (b) 2 or more candidates are to be elected for the same position and 2 or more candidates received the same number of votes for the LAST PLACE in the number to be elected. The board of canvassers, by resolution, upon 5 days notice to all tied candidates, shall hold a special PUBLIC MEETING at which the board shall proceed to the DRAWING OF LOTS of the candidates who have tied and shall proclaim as elected the candidates who may be favored by luck. The candidates so proclaimed shall have the right to assume office in the same manner as if he had been elected by plurality of vote. The board of canvassers shall forthwith make a certificate stating the name of the candidate who had been favored by luck and his proclamation on the basis thereof. Nothing in the above shall be construed as depriving a candidate of his right to contest the election. Proclamation of a Lone Candidate 8295)

(R.A.

Upon the expiration of the deadline for the filing of certificates of candidacy in a special election called to fill a vacancy in an elective position other than for President and Vice-President, when there is only one (1) qualified candidate for such position, the lone candidate shall be proclaimed elected to the position by proper proclaiming body of the COMELEC without holding the special election upon certification by the COMELEC that he is the only candidate for the office and is therefore deemed elected. (Sec. 2) In the absence of any lawful ground to deny due course or cancel the certificate of candidacy in order to prevent such proclamation, as provided for under Sec. 69 and 78 of the Omnibus Election Code, the lone candidate shall assume office not earlier than the scheduled election day. (Sec. 3) The COMELEC shall decide petitions for disqualification not later than election day. Otherwise, such petitions shall be deemed dismissed. (Sec. 3) MODES OF CHALLENGING CANDIDACY & ELECTION RESULTS

NUISANCE CANDIDATES & CANCELLATION OF CERTIFICATE OF CANDIDACY Declaration of Nuisance Candidacy (Sec. 5, R.A. 6646) Grounds for candidacy

declaration

of

nuisance

See discussion under Certificate of Candidacy. Nature of proceedings Proceedings to have a candidate declared as a nuisance candidate are summary in nature. In lieu of oral testimonies, the parties may be required to submit position papers together with affidavits or counteraffidavits and other documentary evidence. Procedure for declaration of candidate as nuisance candidate WHAT FILED: Verified petition WHO MAY FILE: Any registered candidate for the same office

WHEN FILED: Within 5 days from the last day for the filing of certificates of candidacy WHERE FILED: With the COMELEC PROCEDURE:

(1)False material representation in the certificate of candidacy;

(2)If

the certificate filed is a substitute Certificate of Candidacy, when it is not a proper case of substitution under Sec. 77 of BP 881 (Sec. 2, Rule 24, COMELEC Rules of Procedure)

(1)The petition is filed with the COMELEC personally or through duly-authorized representative within 5 days from the last day for the filing of certificates of candidacy. Filing by mail is not allowed.

Nature of proceedings

(2)Within 3 days from the filing of the petition, the COMELEC shall issue summons to the respondent candidate, together with a copy of the petition and its enclosures, if any.

Procedure

(3)The

respondent shall then have 3 days from receipt of the summons to file his verified answer (not a motion to dismiss) to the petition, serving copy thereof upon the petitioner. Grounds for a motion to dismiss may be raised as an affirmative defense. (4)The COMELEC may then designate any of its officials who are lawyers to hear the case and receive evidence. In lieu of oral testimonies, the parties may be required to submit position papers together with affidavits or counter-affidavits and other documentary evidence. The hearing officer shall immediately submit to the COMELEC his findings, reports, and recommendations within 5 days from the completion of such submission of evidence. (5)The COMELEC shall then render its decision within 5 days from receipt of the findings of the hearing officer. This decision shall be disseminated by the COMELEC to the city or municipal election registrars, boards of election inspectors, and the general public in the political subdivision concerned within 24 hours through the fastest available means. (6)After 5 days from receipt of the parties, the decision becomes final and executory unless stayed by the Supreme Court. Cancellation of Certificate of Candidacy Grounds for cancellation of certificate of candidacy A certificate of candidacy may be cancelled or denied due course on either of the following grounds:

Proceedings for cancellation or denial of due course of a certificate of candidacy are summary in nature.

WHO MAY FILE: Any citizen of voting age, or A duly registered political party, organization, or coalition of political parties WHEN FILED: Within 5 days from the last day for the filing of certificates of candidacy WHERE FILED: With the Law Department of the COMELEC PRE-PROCLAMATION CONTROVERSIES Meaning of Pre-Proclamation Controversy A pre-proclamation controversy refers to any question or matter pertaining to or affecting the proceedings of the board of canvassers, or any matter raised under Sec. 233-236 of BP 881 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns. (Sec. 241, BP 881) The institution of the pre-proclamation controversy was intended to prevent the nefarious practice known as “grab-theproclamation, prolong-the-protest”. Jurisdiction The COMELEC has exclusive jurisdiction over pre-proclamation cases. It may order, motu propio or upon written petition, the partial or total suspension of the proclamation of any candidate-elect or annul partially or totally any proclamation, if one has been made. (Sec. 242, BP 881) Olfato vs. Comelec ( 103 SCRA 741) While the Comelec has merely appellate jurisdiction over election contests

involving municipal offices, it cannot be deprived of its exclusive jurisdiction over preproclamation contests. It is immaterial if some of the grounds adduced are grounds for an election contest rather than for a pre-proclamation controversy. When not allowed Pre-proclamation controversies on matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns or the certificates of canvass, are not allowed for the following positions: •President •Vice President •Senator

•Member

of the House of Representatives (Sec. 15, R.A. 7166) However, this 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 returns before it. Nature of proceedings All pre-proclamation controversies shall be heard summarily by the COMELEC after due notice and hearing. This is because canvass and proclamation should be delayed as little as possible. Questions which require more deliberate and necessarily longer consideration are left for examination in the corresponding election protest. (Sison v. COMELEC, G.R. No. 134096. March 3, 1999) Parties adversely affected by a ruling of the board of canvassers on questions affecting the composition or proceedings of the board may appeal the matter to the Commission with 3 days from a ruling thereon. The Commission shall summarily decide the case within 5 days from the filling thereof ( Sec 19 RA 7166)

shortening of the period during which no winners are proclaimed, a period commonly fraught with tension and danger for the public. For those who disagree with the policy, the recourse is with the legislature. The mandatory requirement to comply with the procedure for a pre-proclamation controversy is in view of the policy to have a quick determination of the election results. Manifest errors The Comelec may entertain petitions for the correction of “manifest errors” in the Certificate of Canvass or in the election returns. To be “manifest”, the errors must appear on the face of the Certificates of Canvass or election returns sought to be corrected, and objections thereto must have been made before the Board of Canvassers and specifically noted in the minutes of their respective proceedings (Chavez vs. Comelec 211 SCRA 315) 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 no. 148941-42 Mar 12, 2002) Bince vs. Comelec A petition for correction of errors in the Certificate of Canvass may be filed at any time before proclamation. Torres vs. Comelec Although the provision applies to a preproclamation controversy, there is nothing to prevent its application to cases in which the validity of the proclamation is in question. Since the Statement of Votes is the basis of the Certificate of Canvass and of the proclamation, any error in the Statement affects the validity of the proclamation.

Dimaporo v. COMELEC

Ramirez vs. Comelec

The policy behind limiting the issues of the pre-proclamation controversy is to determine as quickly as possible the results of the elections on the basis of the canvass. It may well be true that the public policy may occasionally permit the occurrence of grab the proclamation and prolong the protest situations; that public policy however, balances the possibility of such situations against the

Corrections should be made by inserting the corrections in the Statement of Votes or by preparing a new Statement of Votes incorporating the corrections. Pre-proclamation cases

Cases of Actions for Annulment of Election Results

Restricted to an examination of the lection returns on their face. Without jurisdiction to go beyond or behind elections returns and investigate election irregularities

or Declaration of Failure of Elections Comelec may conduct technical examination of election documents and compare and analyze voters’ signatures and fingerprints in order to determine whether or not the elections had indeed been free, honest and clean

Lee vs. Comelec Where there is a prima facie showing that the return is not genuine, the principle that in pre-proclamation cases, the Comelec is without jurisdiction to go beyond or behind the election returns and investigate irregularities, does not apply. Issues that may be Raised (1)Illegal composition or proceedings of the board of election canvassers Laodeno vs. Comelec ( 276 SCRA 705) By participating in the proceedings, the petitioner is deemed to have acquiesced in the composition of the Board of Canvassers. (2) Canvassed election returns are either: •incomplete •contain material defects •appear to be tampered with or falsified •contain discrepancies in the same returns or in other authentic copies Patoray vs. Comelec (249 SCRA 440) It is an error for the Comelec to exclude from the canvass election returns where the defect in the return refers only to some incomplete data. Where the Certificate of Votes shows tampering, alteration and falsification, or any other anomaly in the preparation of the election return, the Comelec should order a recount of the votes cast in the precinct, after determining that the ballot box has not been tampered with. The failure of the Comelec to do so, after excluding the return, will result in the disenfranchisement of the voters in the particular precinct.

Neither can the Certificate of Votes be used for the canvass because it was signed only by the Chairman. (3) The election returns were: •prepared under duress, threats, coercion, intimidation or •obviously manufactured or not authentic Lagumbay v. Comelec (16 SCRA 175), The Supreme Court empowered the Commission on Elections to nullify certain contested returns on the ground of "statistical improbabilities", when WE sustained the authority of the Commission to examine voting records, the number of ballots and the number of votes reportedly cast and tallied for each and every candidate, when the returns are obviously false or fabricated. In said case, WE, adopted "a practical approach to the Commissions mission to insure a free and honest elections" by denying prima facie recognition to the election returns on the ground that they were manifestly manufactured or falsified. (4) Substituted or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate(s). (5)

Manifest errors in the Certificates of Canvass or Election Returns (Sec. 15, R.A. 7166; Chavez v. COMELEC, 211 SCRA 315)

It must be noted that this enumeration is restrictive and exclusive. The complete election returns whose authenticity is not questioned must be prima facie considered valid for purposes of canvass and proclamation. To allow a re-count or a reappreciation of the votes in every instance would paralyze canvass and proclamation. Issues that cannot be raised Jurisprudence has held that the following issues are not proper in a preproclamation controversy:

•Appreciation

of ballots, as this is performed by the Board of Election Inspectors at the precinct level and is not part of the proceedings of the Board of Canvassers (Sanchez v. COMELEC, 153 SCRA 67, reiterated in Chavez v. COMELEC, 211 SCRA 315);

Canvassers.

•Technical

examination of the signatures and thumb marks of voters (Balindong v. COMELEC, 260 SCRA 494; Matalam v. COMELEC, 271 SCRA 733);

•Prayer

for re-opening of ballot boxes (Alfonso v. COMELEC, G.R. No. 107847, June 2, 1994);

•Padding

of the Registry List of Voters of a municipality, massive fraud and terrorism (Ututalum v. COMELEC, 181 SCRA 335);

•Challenges

directed against the Board of Election Inspectors (Ututalum v. COMELEC, supra)

•Fraud,

terrorism and other illegal electoral practices. These are properly within the office of election contests over which electoral tribunals have sole, exclusive jurisdiction. (Loong v. COMELEC)

Procedure The procedure for filing a preproclamation controversy depends on the issue being raised:

(b)If

the petition is for correction, it must be filed not later than 5 days following the date of proclamation, and must implead all candidates who may be adversely affected thereby. (Sec. 5(b), Rule 27, COMELEC Rules of Procedure) PROCEDURE: If filed with the Board first: (1)Petitioner submits his / her objection to the chairman of the board of canvassers. (2)The Board makes its ruling. (3)Within 3 days from the ruling, the parties adversely affected may appeal the matter to the COMELEC.

(4)Upon

appeal, the COMELEC shall summarily decide the case within 5 days from the filing thereof. (Sec. 19, R.A. 7166) If initiated directly with the COMELEC: (1)Petitioner COMELEC.

files

petition

with

the

(a)Questions involving the composition or proceedings of the board of canvassers, or correction of manifest errors

(2)Upon the docketing of such petition, the Clerk of Court concerned shall issue summons with a copy of the petition to respondents.

WHERE:

The controversy may be initiated either in the Board of Canvassers or directly with the COMELEC. (Sec. 17, R.A. 7166)

(3)The

WHEN:

It depends:

(a)If

petition involves the illegal composition or proceedings of the board, it must be filed immediately when the board begins to act as such (Laodeno v. COMELEC, 276 SCRA 705), or at the time of the appointment of the member whose capacity to sit as such is objected to if it comes after the canvassing of the board, or immediately at the point where the proceedings are or begin to be illegal. Otherwise, by participating in the proceedings, the petitioner is deemed to have acquiesced in the composition of the Board of

Clerk of Court concerned shall immediately set the petition for hearing. The COMELEC shall hear and decide the petition en banc. The Board of Canvassers shall not commence, proceed or resume canvass unless otherwise ordered by the COMELEC. (Sec. 5, Rule 27, COMELEC Rules of Procedure) (b)Matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns and certificates of canvass WHERE: Only with Canvassers

the

Board

of

WHEN: At the time the questioned return is presented for inclusion in the canvass.

WHO:

Any candidate, political party or coalition of political parties

PROCEDURE: (1)The contesting party makes an oral objection to the chairman of the Board of Canvassers at the time the questioned return is presented for inclusion in the canvass. Such objection is recorded in the minutes of canvass. Simultaneous with the oral objection, the objecting party enters his objection in the form for written objections prescribed by the COMELEC. (2)Upon receipt of such objection, the Board automatically defers the canvass of the contested returns and proceeds to canvass the returns which are not contested by any party. (3)Within 24 hours from and after the presentation of such objection, the objecting party submits the evidence in support of the objection, which shall be attached to the form for written objections. Within the same 24-hour period, any party may file a written and verified opposition to the objection in the prescribed COMELEC form, attaching supporting evidence, if any. The Board shall not entertain any objection or opposition unless reduced to writing in the prescribed forms. (4)The Board chairman immediately and formally admits the evidence attached to the objection or opposition by affixing his signature at the back of each and every page thereof. (5)Upon receipt of the evidence, the Board considers the objection and the opposition, and summarily rules on the objection. The Board then enters its ruling on the prescribed form and authenticates the same by entering the signatures of all its members. (6)The parties adversely affected by the ruling immediately inform the Board if they intend to appeal the ruling. Such information is then entered in the minutes of canvass. (7)The Board then sets aside the returns and proceeds to consider the other returns. The Board then suspends the

canvass after all the uncontested returns have been canvassed and the contested return ruled upon by it. (8)Within 48 hours from the ruling, the party adversely affected files a written and verified notice of appeal with the Board. The party then files an appeal with the COMELEC within a nonextendible period of 5 days thereafter. (9)Immediately upon receipt of the notice of appeal, the Board makes an appropriate report to the COMELEC, elevating therewith the complete records and evidence submitted in the canvass, and furnishing the parties with copies of the report. (10)The COMELEC summarily decides the appeal within 7 days from receipt of the record and evidence elevated to it by the Board. (11)The COMELEC's decision becomes executory after the lapse of 7 days from receipt thereof by the losing party.

(12)The

COMELEC then authorizes the Board of Canvassers to proceed with the proclamation of the winner. Any proclamation made without COMELEC authorization is void ab initio, unless the contested returns do not adversely affect the results of the election. (Sec. 20, R.A. 7166) This procedure is mandatory. Noncompliance with any of the steps above is fatal to the pre-proclamation petition. Effect of filing controversy

of

pre-proclamation

The period to file an election contest shall be SUSPENDED during the pendency of the pre-proclamation contest in the COMELEC or the Supreme Court. (Alangdeo v. COMELEC, June 1989) The right of the prevailing party in the pre-proclamation contest to the execution of COMELEC’s decision does not bar the losing party from filing an election contest. Despite the pendency of a preproclamation contest, the COMELEC may order the proclamation of other winning candidates whose election will not be affected by the outcome of the controversy.

Effect of candidate

proclamation

of

winning

A pre-proclamation controversy shall no longer be viable after the proclamation and assumption into office by the candidate whose election is contested. The remedy is an election protest before the proper forum. (Mayor v. COMELEC, January 1989) The prevailing candidate may still be unseated even though he has been proclaimed and installed in office if: 1.The opponent is adjudged the true winner of the election by final judgment of court in an election contest; 2.The prevailing party is declared ineligible or disqualified by final judgment of a court in a QUO WARRANTO case; or 3.The incumbent is removed from office for cause. Abella v. Larrazabal Pre-proclamation controversies are summary in nature. The policy behind election law is that pre-proclamation controversies should be summarily decided, consistent with the law’s desire that the canvass and proclamation be delayed as little as possible. Thus, questions as to the appreciation of ballots and the conduct of the campaign and balloting, which require more deliberate and necessarily longer consideration are proper for an election contest. The dismissal of a pre-proclamation controversy does not mean that the disqualification case is moot and academic. The two are independent of each other. The purpose of the pre-proclamation controversy is to ascertain the winners in the elections on the basis of election returns duly authenticated by the board of inspectors and admitted by the board of canvassers. The purpose of the disqualification proceeding is to prevent the candidate from running, or if elected, from serving, or to prosecute him for violation of election laws. The mere fact that a candidate has been proclaimed does not signify that his disqualification is deemed condoned and may no longer be the subject of a separate investigation. Agbayani v. COMELEC The

proclamation

of

a

winning

candidate makes a pre-proclamation controversy no longer viable. The remedy is an election protest, but this is only true where there is a valid proclamation or where the proclamation is based on a complete canvass. Where it is claimed that there was an incomplete canvass or that certain returns should have been omitted because they were manufactured and other returns cannot be included because they have been irretrievably lost, the pre-proclamation controversy should still be continued despite the proclamation of the supposed winner. COMELEC may in such a pre-proclamation controversy determine if the proclamation should be annulled. The proclamation of the winner does not prevent COMELEC from continuing with the pre-proclamation controversy against the winner and after annulling its proclamation. PETITION TO ANNUL PROCLAMATION

OR

SUSPEND

The filing with the COMELEC of a petition to annul or to suspend proclamation suspends the running of the period to file an election protest. (Alangdeo v. COMELEC, June 1989) No law provides for a reglementary period within which to file a petition for the annulment of an election if there is as yet no proclamation. (Loong v. COMELEC, 257 SCRA 1) There is no fixed time frame within which to file a petition to annul a proclamation, the same being limited only by the standard of reasonableness. DECLARATION OF FAILURE OF ELECTION Nature of petition to declare a failure of election A petition to declare a failure of election is neither an election protest nor a pre-proclamation controversy. (Borja v. COMELEC, 260 SCRA 604) Grounds for declaration See discussion under Election Proper. Jurisdiction of COMELEC The COMELEC, sitting en banc, may declare a failure of election by a majority vote of its members. (Sec. 4, R.A. 71660

The COMELEC, in the case of actions for annulment of election results or declaration of failure of elections, may conduct technical examination of election documents and compare and analyze voters' signatures and fingerprints in order to determine whether or not the elections had indeed been free, honest and clean. (Loong v. COMELEC, supra) Requisites for the declaration of failure of election Before the COMELEC can act on a verified petition seeking a declaration of failure of election, the following conditions must concur: (1)No voting has taken place in the precincts concerned on the date fixed by law, or even if there was voting, the election nonetheless resulted in a failure to elect; and

(2)The

votes cast would affect the results of the election. (Mitmug v. COMELEC, 230 SCRA 54; Loong v. COMELEC, supra; Hassan v. COMELEC, 264 SCRA 125)

evidence to any of its officials who are members of the Philippine Bar. (5)The COMELEC then decides whether to grant or deny the petition. This lies within the exclusive prerogative of the COMELEC. DISQUALIFICATION CASES Grounds for disqualification See discussion under Certificates of Candidacy. Priority of disqualification cases The COMELEC and the courts shall give priority to cases of disqualification for violation of the Omnibus Election Code, to the end that a final decision shall be rendered not later than 7 days before the election in which the disqualification is sought. (Sec. 72, BP 881) Procedure WHO MAY FILE: Any citizen of voting age, or Any duly registered political party, organization or coalition of political parties

The election is only to be set aside when it is impossible from any evidence within reach to ascertain the true result – when neither from the returns nor from other proof can the truth be determined (i.e. where the illegality affects more than 50% of the total number of votes cast and the remainder does not constitute a valid constituency).

WHERE: Law Department of the COMELEC

Procedure

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.

(1)Petitioner files verified petition with the Law Department of the COMELEC. (2)Unless a shorter period is deemed necessary by circumstances, within 24 hours, the Clerk of Court concerned serves notices to all interested parties, indicating therein the date of hearing, through the fastest means available. (3)Unless a shorter period is deemed necessary by the circumstances, within 2 days from receipt of the notice of hearing, any interested party may file an opposition with the Law Department of the COMELEC. (4)The COMELEC proceeds to hear the petition. The COMELEC may delegate the hearing of the case and the reception of

WHEN: Any day after the last day for filing of certificates of candidacy, but not later than the date of proclamation Effect of disqualification case

If for any reason a candidate is not disqualified before an election and he is subsequently voted for and receives the winning number of votes in such election, the COMELEC or the courts shall continue with the trial and hearing of the action, inquiry, or protest and may order the suspension of the proclamation of such candidate during the pendency of the case upon motion of the complainant or any intervenor, provided that evidence of his guilt is strong. (Sec. 6, R.A. 6646) 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.

an election protest.

Sanchez vs Comelec (153 SCRA 67)

Technical examination of signatures and thumb marks of voters runs counter to the nature and scope of a pre-proclamation contest; the remedy is to raise these issues in an election protest.

Supreme Court said Sanchez’ petition for recount and/or re-appreciation of ballots may NOT be considered a pre-proclamation controversy for the ff. reasons: a) An election return is “incomplete” if there is an omission in the election return of the name of any candidate and/or his corresponding votes, or in case the number of votes for a candidate had been omitted. Here, the name of Sanchez as well as the number of votes counted and appreciated in his favor by the BEI. Errors in appreciation of ballots by the BEI are proper subject for an election protest and not for a pre-proclamation contest. b) Appreciation of votes is not part of the proceedings of the Board of Canvassers, it is performed by the BEI at the precinct level. c) Enumeration of issues which may be raised in a pre-proclamation controversy under sec. 243 BP 881 is restrictive and exclusive. The complete election returns whose authenticity is not in question must be prima facie considered valid for the purpose of canvass and proclamation. d) To expand the issues beyond those enumerated in sec. 243 and allow recount or re-appreciation where a claim of misdeclaration of stray votes is made would open the floodgates to such claims and paralyze canvass and proclamation proceedings, given the propensity for the loser to demand a recount. The policy of the law is that a pre-proclamation controversy should be summarily decided. e) The ground for recount relied upon is clearly not among the issues that may be raised in a pre-proclamation controversy. His allegation of invalidation of “Sanchez” votes intended for him bears no relation to the correctness and authenticity of the election returns canvassed. Patoray vs Comelec (279 SCRA 470) Objections to the inclusion of election returns are directed primarily at the ballots reflected in the returns, this involves appreciation of ballots and cannot be raised in

Balindong vs Comelec (260 SCRA 494)

Alfonso vs Comelec (June 2, 1994) The prayer for re-opening of ballot boxes is not a proper issue in a preproclamation controversy but should be threshed out in an election contest Villaroya vs Comelec (155 SCRA 633) In a pre-proclamation contest, the Comelec may order the correction of a clerical error in the Statement of Votes (by Board of Canvassers) to correspond to the figures reflected in the election returns—even if the candidate/ representative failed to file the timely protest during canvassing, as the error in the Statement of Votes was not apparent on its face. Duremdes vs Comelec (178 SCRA 746) Failure to object to the Statement of Votes before the Board of Canvassers is not a bar to raising the issue before the Comelec for the first time; the law is silent as to when they may be raised. Castromayor vs Comelec (250 SCRA 298) Any party dissatisfied with the ruling of the BoC shall have the right to appeal to the Comelec. Since the Statement of Votes which was to be corrected by the Board forms the basis of the Certificate if Canvass and the proclamation, petitioner begs the question by saying that this is not a pre-proclamation controversy and the procedure for PPC cannot be applied to the correction of the computation of the total number of votes obtained by the candidates in the Statement of Votes. Mentang vs Comelec (Feb. 4, 1994) The SC declared it has already ruled that the filing of a petition to annul a proclamation suspends the running of the 10day period within which to file an election contest, provided that the allegations, which when proved, will render the proclamation null and void. Such petition may be filed directly with the Comelec even as a pre-proclamation controversy, provided it is done within ten days

after proclamation Bince vs Comelec (242 SCRA 273) Comelec may annul a proclamation on account of a mathematical error committed by the Board of Canvassers in the computation of votes received. Petition for correction may be filed at any time before proclamation and there is nothing to suggest this cannot be applied when validity of proclamation is precisely in question. Ututalum vs Comelec (181 S 335) Padding of Registry of Voters of a municipality not a listed ground for preproclamation controversy Lazatin vs Comelec (157 SCRA 337) Issue of validity of proclamation and irregularities connected therewith is a matter properly addressed to the HRET. Darantinao vs Comelec (June 1989)

An election contest is imbued with public interest. The election contest must be liberally construed to favor the will of the people. An election contest may not be defeated by mere technical objections. Until and unless the election protest is decided against him, a person who has been proclaimed as duly elected has the lawful right to assume and perform the duties and functions of the office. Distinction between Pre-Proclamation Controversy and Election Contest 1) The Dividing candidate

line:

Proclamation

of

2) Jurisdiction A. Pre-proclamation controversy 1.The jurisdiction of COMELEC is administrative/quasi-judicial

Comelec has the power to inquire whether members of the Board of Canvassers are qualified or not, whether or not an election had been held in a precinct, in order to determine the integrity of the election returns

2.It is governed by the requirements of administrative due process

Alangdeo vs Comelec (June 1989)

judicial

The filing with the Comelec of a petition to annul or suspend the proclamation shall suspend the period to file an election protest.

2.It is governed by the requirements of judicial process

Mayor vs Comelec (Jan. 1989) After proclamation and assumption of office, the proper remedy is an election protest, not a pre-proclamation controversy. ELECTION CONTESTS Election contests, defined These are adversarial proceedings by 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. The purpose of an election contest is to ascertain the candidate lawfully elected to office. Nature of election contests

B. Election contest 1.The jurisdiction of COMELEC is

3) In some cases, even if the case (involving municipal officials) began with the COMELEC before proclamation but a proclamation is made before the controversy is resolved, it ceases to be a pre-proclamation controversy and becomes an election contest cognizable by the RTC. 4) However, in some cases, the SC has recognized the jurisdiction of COMELEC over municipal cases even after proclamation. Jurisdiction over election contests Supreme Court The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and disqualifications of the President, Vice-President, and may promulgate its rules for such purpose. (Art. VII, Sec. 4, 1987 Constitution)

Electoral Tribunals of the Senate and House of Representatives The Senate and the House of Representatives have their own electoral tribunals. Each electoral tribunal has 9 members: 3 Supreme Court Justices, 6 members of the Senate or House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. (Art. VI, Sec. 17, 1987 Constitution) For purposes of election contests cognizable by the Electoral Tribunals, the rules of procedure of such tribunals shall prevail over the provisions of the Omnibus Election Code. (Lazatin v. HRET, 168 SCRA 39) COMELEC The COMELEC has exclusive original jurisdiction over all election contests relating to the elections, returns, and qualifications of all elective: (1)Regional Officials; (2) Provincial Officials; and (3) City Officials Decisions in these cases appealed to the Supreme Court.

may

be

qualifications of candidates for the Sangguniang Kabataan filed before the election are decided by the Election Officer, while those filed after the election are decided by the MTCs. (Nachura, p. 389) Powers of the COMELEC in relation to election contests The power of COMELEC to decide election cases includes the power to determine the validity or nullity of votes. The COMELEC has the power to issue writs of certiorari, prohibition, and mandamus. However, this power can only be exercised in aid of its appellate jurisdiction. (Relampagos v. Cumba, 243 SCRA 690) Kinds of election contests There are 2 kinds of election contests that may be filed: an election protest, and a quo warranto case. Election Protest WHO MAY FILE: Any candidate who has filed a certificate of candidacy and has been voted upon for the same office, and who has not himself caused or contributed to the irregularities or frauds of which he complains

The COMELEC has appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction (i.e., Regional Trial Courts) or involving elective barangay officials decided by trial courts of limited jurisdiction (i.e., the Municipal Trial Courts).

GROUNDS:

Decisions, final orders, or rulings of the COMELEC on election contests involving elective municipal and barangay offices shall be final, executory and not appealable. (Sec. 2, Art. IX-C, 1987 Constitution) Note, however, that this does not preclude a recourse to the Supreme Court by way of a special civil action for certiorari. (Galido v. COMELEC, 193 SCFA 78)

Within 10 days from proclamation of the results of the election

Regional and Municipal Trial Courts The Regional Trial Courts and Municipal Trial Courts have exclusive original jurisdiction over municipal and barangay officials, respectively. It must be noted that cases involving

Fraud, terrorism, irregularities or illegal acts committed before, during or after the casting and counting of votes PERIOD FOR FILING:

Where, after 5 days from the proclamation of the winning candidate, the loser files a motion for reconsideration in the pre-proclamation controversy, there are only 5 days which remain of the period within which to file an election protest. (Roquero v. COMELEC, 289 SCRA 150) PROCEDURE:

A.For

protests filed with the COMELEC (Rule 20 vis-à-vis Rules 10-19, COMELEC Rules of Procedure)

(1)Protestant

files a verified petition with the COMELEC within 10 days from proclamation and pays the required docket fees. Failure to pay the basic docket fee will result in the dismissal of the protest. (Gatchalian v. COMELEC, 245 SCRA 208) (2)The Clerk of Court of the COMELEC or the division concerned issues the corresponding summons to the protestee within 3 days from the filing of the petition. (3)Protestee must file an answer within 5 days from service of summons and a copy of the petition. The protestee may incorporate in his answer a counter-protest or counterclaim. The COMELEC may not entertain a counterprotest filed beyond the reglementary period to file the same. (Kho v. COMELEC, G.R. No. 124033, Sept. 25, 1997) (4)Protestant has 5 days from receipt of the answer or answer with counterclaim or counter-protest to file his reply or answer to counter-protest or counterclaim, respectively. If no answer is filed to the protest or counter-protest, a general denial is deemed to have been entered. (5)After the issues have been joined, the case shall be set for hearing and presentation and reception of evidence.

(6)After

the case has been submitted for decision, the COMELEC shall render its decision. If the case is being heard by a Division, the case shall be decided within 10 days. If it is being heard by the COMELEC en banc, it shall be decided within 30 days. (7)The decision of a division becomes final and executory after the lapse of 15 days following its promulgation. The aggrieved party may file a timely motion for reconsideration within 5 days from promulgation of the decision on the grounds that the evidence is insufficient to justify the decision; or that the said decision is contrary to law. For the COMELEC en banc, the decision becomes final and executory 30 days from its promulgation. Veloria vs Comelec (211 SCRA 907) A motion for the reconsideration of the RTC decision is a prohibited pleading and does not interrupt the 5-day period for appeal.

Garcia vs. De Jesus (206 SCRA 779) But the Comelec cannot deprive the RTC of its competence to order execution of its decision pending appeal, this being a judicial prerogative and there being no law not authorizing the same; besides, the Comelec rules would deprive the prevailing party of a substantial right to move for such relief. Relampagos vs. Cumba (243 SCRA 502) In the exercise of its exclusive appellate jurisdiction, the Comelec has the power to issue writs of prohibition, mandamus or certiorari, because the last par. of sec. 50 BP 697 is still in full force and effect and has not been repealed nor amended by BP 881. (abandons Veloria and Garcia) Galido vs. Comelec (193 SCRA 78) The fact that decisions, final orders or rulings of the Comelec in appealed cases involving elective municipal and barangay officials are final, executory and unappealable does not preclude a recourse to the Supreme Court by way of a special civil action for certiorari. (But only when Comelec’s factual determination is marred by grave abuse of discretion = Alvarez vs. Comelec) Puzon vs. HRET (Feb. 1989) The Supreme Court declared the review of a decision of the Electoral Tribunal is possible only in the exercise of supervisory or extraordinary jurisdiction, and only upon showing that the Tribunal’s error results from a whimsical, capricious, unwarranted, arbitrary or despotic exercise of power. Lazatin vs. HRET (168 SCRA 391) For purposes of election contests cognizable by the Electoral Tribunal, the HRET rules of procedure shall prevail over the provisions of the Omnibus Election Code.

B.For

protests filed with the Regional Trial Courts (Rule 35, COMELEC Rules of Procedure) (1)Protestant files a verified petition with the RTC within 10 days from proclamation. (2)Protestee must file an answer within 5 days after receipt of notice of the filing of the petition and a copy of the petition. Should the protestee desire to impugn the votes received by the protestant in other precincts, he may file a verified counter-

protest within the same period fixed for the filing of the answer. (3)Protestant has 5 days from receipt of the counter-protest to file his answer to such counter-protest. (4)Any other candidate for the same office may intervene in the case within 5 days from filing of the protest by filing a verified petition-inintervention. The protestant or protestee shall answer the protest-in-intervention within 5 days after notice. (5)If no answer is filed to the protest, counterprotest or protest-in-intervention within the specified time limits, a general denial is deemed to have been entered. (6)After the issues have been joined, the case shall be set for hearing. Presentation and reception of evidence shall be completed within 30 days from the date of the commencement thereof. (7)The Court shall decide the election contest within 30 days from the date it is submitted for decision, but in every case within 6 months after its filing. Such decision shall declare who among the parties has been elected, or in a proper case, that none of them has been legally elected. (8)The decision becomes final 5 days after its promulgation. No motion for reconsideration shall be entertained. Should an aggrieved party wish to appeal the decision to the COMELEC, he may do so by filing a notice of appeal within 5 days from promulgation of the decision. EFFECT OF DEATH OF PROTESTANT The death of the protestant does not extinguish an election protest. An election protest is imbued with public interest which raises it onto a plane over and above ordinary civil actions, because it involves not only the adjudication of the private interest of the rival candidates but also the paramount need of dispelling once and for all the uncertainty that beclouds the real choice of the electorate with respect to who shall discharge the prerogatives of the office within their gift. (De Castro v. COMELEC, 267 SCRA 806) However, it is not the heirs of the deceased who shall be the successors-ininterest to the suit, but the succeeding candidate-elect. For example, if the deceased was a candidate for governor, the real party in interest in the continuation of the proceedings

is the Vice-Governor-elect, as he or she will succeed in the event that the protestant is declared to be the person lawfully elected to the office. Arao vs. Comelec (210 SCRA 290) Failure of protestant to raise the question of identical handwriting or of impugning the validity of the ballots on that ground does not preclude the Comelec from rejecting the ballots. Unlike an ordinary suit, an election protest is a public concern. The rights of the contending parties must yield to the far greater interest of the citizens in upholding the sanctity of the ballot. Thus, the Comelec simply cannot close its eyes to the illegality of the ballots even if the protestant omitted to raise the ground in his protest. Emi vs. Comelec (243 SCRA 706) The Court upheld the authority of the Comelec to determine whether ballots had been written by one or two persons, or in groups written by only one hand, without need of calling for the services of handwriting experts, this investigation being more in the nature of an internal process Bulaong vs Comelec (220 SCRA 745) An order regarding the revision of ballots is an interlocutory order because it still requires a party to perform certain acts leading to the final adjudication of the case Miriam Defensor Santiago vs. Fidel Valdez Ramos (253 SCRA 599) Election protest filed by Santiago rendered moot and academic by the election of Santiago as a Senator in the May 1995 elections and assumption of office, thus effectively considered as having abandoned or withdrawn her protest or at the very least, in the language of Moraleja v Relova, abandoned her “determination to protect and pursue the public interest involved on who is the real choice of the electorate.” Gatchalian vs Comelec (245 SCRA 208) The period for filing an election protest is suspended during the pendency of a preproclamation controversy. The protestant has to pay a docket fee of P300.00 and an additional docket fee if there is a claim for damages. For failure to pay the basic docket fee, the protest should be dismissed.

Poe vs. Gloria Macapagal-Arroyo (PET Case No. 002, March 29, 2005) The Supreme Court said that if persons not real parties in the action could be allowed to intervene, proceedings will be unnecessarily complicated, expensive and interminable—and this is not the policy of the law. Inasmuch as no real parties such as the vice-presidential aspirants in the 2004 elections have come forward to intervene, or to be substituted for the deceased protestant, it is far more prudent to abide by the existing and strict limitations on intervention and substitution under the law and the rules.

EVIDENCE ON THE ELECTION The following may be used as evidence in contesting the results of the election: Election Returns Election returns are properly used as evidence in an election contest when what is involved is the correctness of the number of votes of each candidate, and the ballots cannot be produced or are not available. Ballots

Quo Warranto WHO MAY FILE: Any voter in the constituency

warranto proceedings in accordance with law. (Sec. 259, B.P. 881)

registered

GROUNDS: Ineligibility or disloyalty to the Republic of the Philippines PERIOD FOR FILING: Within 10 days from proclamation of the results of the election Sampayan vs. Daza (213 SCRA 807) Petition for prohibition filed by residents of N. Samar in the Supreme Court against Cong. Daza dismissed:

1)

because case already moot and academic, Daza’s term to end in June 30, 1992 2) SC without jurisdiction, HRET proper forum as sole judge of all contests relating to the election, returns and qualifications of House of Rep. members 3) As a de facto officer, Daza cannot be made to reimburse funds disbursed during his term of office, bec. his acts are valid. Frivaldo vs. Comelec (174 SCRA 245) Since Frivaldo’s copy of certificate of naturalization obtained only in Sept. 1988, the petition for disqualification may still be considered as having been seasonably filed even if filed more than seven months from the proclamation.

Ballots are properly used as evidence when the election returns are not available. Poll-Books and Tally Sheets Poll-books and tally sheets may be used as evidence where by law, poll-books or tally sheets are required to be kept. Election Officials Election officials may be called to testify in the absence of ballots, tally sheets or poll-books. Voters Voters may testify where the illegality consists in the casting of votes by persons unqualified, unless it can be shown for whom they voted, it cannot be allowed to change the result. Certificate of Votes The provisions of Sections 235 and 236 of the Omnibus Election Code notwithstanding, the certificates of votes shall be admissible in evidence to prove tampering, alteration, falsification or any anomaly committed in the election returns concerned, when duly authenticated by testimonial or documentary evidence presented to the board of election inspectors who issued the certificate. The failure to present any certificate of votes shall be a bar to the presentation of other evidence to impugn the authenticity of the election returns.

Award of damages ELECTION OFFENSES Actual or compensatory damages may be granted in all election contests or in quo

Jurisdiction over election offenses

The Regional Trial Courts have exclusive original jurisdiction to try and decide any criminal actions or proceedings for violation of election laws. (Sec. 268, B.P. 881; Juan v. People, G.R. No. 132378, January 18, 2000) Prosecution of election offenses The COMELEC has the exclusive power to investigate and prosecute cases involving violations of election laws. (Sec. 2 (6), Art. IX-C, 1987 Constitution; Sec. 268, B.P. 881; De Jesus v. People, 120 SCRA 760) However, it may validly delegate the power to the Provincial Prosecutor or to the Ombudsman. - But it is not the duty of the Comelec as investigator and prosecutor to gather proof in support of a complaint field before it (Kilosbayan vs. Comelec, GR No. 128054, Oct. 16, 1997) In the event that the COMELEC fails to act on any complaint within 4 months from its filing, the complainant may file the complaint with the fiscal or the Department of Justice, if warranted. (Sec. 265, B.P. 881) Preferential offenses

disposition

of

election

Investigation and prosecution of election offenses shall be given priority by the COMELEC. The investigating officer shall resolve the case within 5 days from submission. The courts shall give preference to election cases over all other cases except petitions for writ of habeas corpus. Their trial shall be commenced without delay and shall be conducted continuously until terminated, and the case shall be decided within 30 days from its submission for decision. (Sec. 269, B.P. 881) Election offenses The various election offenses are enumerated primarily under Sec. 261 of B.P. 881. However, other election laws provide for other election offenses. Some of the more significant offenses include the following: Registration

•Failure

of the Board of Election Inspectors to post the list of voters in each precinct. (Sec. 9, R.A. 7166);

•Change

or alteration or transfer of a voter's precinct assignment in the permanent list of voters without the express written consent of the voter (Sec. 4, R.A. 8189) Certificate of Candidacy

•Continued

misrepresentation or holding out as a candidate of a disqualified candidate or one declared by final and executory judgment to be a nuisance candidate (Sec. 27f, R.A. 6646);

•Knowingly

inducing or abetting such misrepresentation of a disqualified or nuisance candidate (Sec. 27f, R.A. 6646);

•Coercing,

bribing, threatening, harassing, intimidating, terrorizing, or actually causing, inflicting or producing violence, injury, punishment, torture, damage, loss or disadvantage to discourage any other person or persons from filing a certificate of candidacy in order to eliminate all other potential candidates from running in a special election (Sec. 5, R.A. 8295); Election Campaign

•Appointment

or use of special policemen, special agents or the like during the campaign period (Sec. 261m, B.P. 881)

•Use

of armored land, water or aircraft during the campaign period (Sec. 261r, B.P. 881)

•Unlawful

electioneering

(Sec.

261k,

B.P. 881)

•Acting

as bodyguards or security in the case of policemen and provincial guards during the campaign period (Sec. 261t, B.P. 881)

•Removal,

destruction, obliteration, or tampering of lawful election propaganda, or preventing the distribution thereof (Sec. 83, B.P. 881 vis-à-vis Sec. 262, B.P. 881)

Voting

Acts of government or public officers

•Vote-buying

and 261a, B.P. 881)

•Conspiracy

vote-selling

(Sec.

to bribe voters (Sec. 261b,

B.P. 881)

A disputable presumption of a conspiracy to bribe voters is created when there is proof that at least 1 voter in different precincts representing at least 20% of the total precincts in any municipality, city or province has been offered, promised or given money, valuable consideration or other expenditure by a candidate's relatives, leaders and/or sympathizers for the purpose of promoting the election of such candidate. (Sec. 28, R.A. 6646)

•Coercion

of subordinates to vote for or against any candidate (Sec. 261d, B.P. 881)

•Dismissal

of employees, laborers, or tenants for refusing or failing to vote for any candidate (Sec. 261d(2), B.P. 881)

•Being

a flying voter (Sec. 261z (2), B.P. 881) Counting of Votes

•Tampering,

increasing, decreasing votes, or refusal to correct tampered votes after proper verification and hearing by any member of the board of election inspectors (Sec. 27b, R.A. 6646)

•Refusal

to issue to duly accredited watchers the certificate of votes cast and the announcement of the election, by any member of the board of election inspectors (Sec. 27c, R.A. 6646) Canvassing

•Any

chairperson of the board of canvassers who fails to give notice of meeting to other members of the board, candidate or political party as required (Sec. 27e, R.A. 6646)

•Appointment

of new employees, creation of new positions, promotion, or giving salary increases within the election period (Sec. 261g, B.P. 881)

•Transfer

of officers and employees in the civil service within the election period without the prior approval of the COMELEC (Sec. 261h, B.P. 881) People v. Reyes (247 SCRA 328) Transfer or detail of a government officer or employee will not be penalized if done to promote efficiency in the government service. To prove violation, two elements must concur: 1) The fact of transfer or detail within the election period as fixed by the Comelec; and 2) The transfer or detail was made without prior approval of the Comelec, in accordance with its IRR. Here the transfer was made 1 day prior to Comelec’s issuance of Res. No. 2333, which prescribed the rules and regulations on how to obtain Comelec approval for such transfers.

•Intervening

of public officers and employees in the civil service in any partisan political activity (Sec. 261i, B.P. 881)

•Use

of public funds for an election campaign (Sec. 261o, B.P. 881)

•Illegal

release of prisoners before and after election (Sec. 261n, B.P. 881)

•Release,

disbursement or expenditure of public funds during the prohibited period (Sec. 261v, B.P. 881)

•Construction

of public works, etc. during the prohibited period (Sec. 261w, B.P. 881)

•Suspension

of elective local officials during the election period without prior approval of the COMELEC (Sec. 261x, B.P. 881) Coercion, intimidation, violence •Coercion of employees

election

officials

and

certificate franchise.

•Threats,

intimidation, terrorism, use of fraudulent devices or other forms of coercion (Sec. 261e, B.P. 881)

•Use

of undue influence B.P. 881)

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; enough that the accused carried the deadly weapon within the prohibited radius during any of the days and hours specified in the law.

•Carrying

convenience

or

in the sale of air time (Sec. 261dd (5), B.P. 881) In addition to the prescribed penalty, such refusal constitutes a ground for cancellation or revocation of the franchise.

•Carrying

Mappala v. Judge Nunez (240 SCRA 200)

public

•Discrimination

(Sec. 261j,

deadly weapons within the prohibited area (Sec. 261p, B.P. 881)

of

Failure to register or vote Art. V, Sec. 1 of the 1987 Constitution states that suffrage "may" be exercised by qualified citizens of the Philippines, as compared to the 1935 and 1973 Constitutions which used the term "shall." Thus, it can be said that under the current Constitution, failure to register or to vote is no longer an election offense. Other election offenses under RA 6646

firearms outside residence or place of business (Sec. 261q, B.P. 881)



Person who violated provisions against prohibited forms of election propaganda

•Organization



If the chairman of the BEI fails to affix his signature at the back of the official ballot, in the presence of the voter, before delivering the ballot to the voter. (under RA 7166)

or maintenance of reaction forces, strike forces, or similar forces during the election period (Sec. 261u, B.P. 881) Other prohibitions

•Unauthorized

printing of official ballots and election returns with printing establishments that are not under contract with the COMELEC (Sec. 27a, R.A. 6646)

•Wagering

upon the results of elections (Sec. 261c, B.P. 881)

•Sale,

etc. of intoxicating liquor on the day fixed by law for the registration of voters in the polling place, or the day before the election or on election day (Sec. 261dd (1), B.P. 881)

•Opening

booths or stalls within 30 meters of any polling place (Sec, 261dd (2), B.P. 881)

•Holding

fairs, cockfights, etc. on election day (Sec. 261dd (3), B.P. 881)

•Refusal to carry election mail during the

election period (Sec. 261dd (4), B.P. 881). In addition to the prescribed penalty, such refusal constitutes a ground for cancellation or revocation of

Good faith not a defense Election offenses are generally mala prohibita. Proof of criminal intent is not necessary. Good faith, ignorance, or lack of malice is not a defense; the commission of the prohibited act is sufficient. (People v. Bayona, 61 Phil. 181; People v. Fuentes, 181 Phil. 186) Penalties For individuals

•Imprisonment

of not less than 1 year but not more than 6 years, without probation (Sec. 264, B.P. 881) •Disqualification to hold public office; •Deprivation of the right of suffrage For a Foreigner •Imprisonment of not less than 1 year but not more than 6 years (without probation);

•Deportation sentence

after

service

of

Grounds for refusing or canceling registration of Party-Lists groups

For a Political Party •Payment of a fine not less than P10,000 after a criminal conviction Persons Required by Law Prisoners in their Custody

to

Keep

For prisoners illegally released from any penitentiary or jail during the prohibited period, where such prisoners commit any act of intimidation, terrorism or interference in the election, the Director of the Bureau of Corrections, provincial warden, jail keeper or persons who are required by law to keep said prisoners in their custody shall, if convicted, be sentenced to suffer prison mayor in its maximum period. (Sec. 264, B.P. 881) Arrests in Connection with the Election Campaign No person shall be arrested or detained at any time for any alleged offense committed during and in connection with any election through any act or language tending to support or oppose any candidate, political party or coalition of political parties under or pursuant to any order of whatever name or nature and by whomsoever issued except only upon a warrant of arrest issued by a competent judge after all the requirements of the Constitution have been strictly complied with.

a.

Religious sect organization

or

denomination,

b.

Advocates violence

c.

Foreign party or organization

d.

Receives foreign support

e.

Violates election law

f.

Untruthful statements in its petition

g.

Ceased to exist for at least one year

h.

Failed to participate in the last two preceding elections or fails to obtain at least 2% of the votes cast under the partylist system in the 2 preceding elections for the constituency in which it has registered

Nomination of party-list reps should 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 Incumbent sectoral representatives in the House of Representatives who are nominated in the party-list system shall not be considered resigned Party List Reps constitute 20% of the total number of the members of the House of Reps including those under the party-list

Prescription

How do we determine the number of party list seats in the House of Reps?

Election offenses prescribe 5 years from the date of their commission.

Formula: (# of District Reps / 0.80) x 0.20 = # of party list reps

If the discovery of the offense be made in an election contest proceeding, the period of prescription shall commence on the date on which the judgment in such proceedings becomes final and executory. (Sec. 267, B.P. 881)

•

The 5 major political parties are now entitled to participate in the party list system

•

Parties receiving at least 2% of the total votes cast for the party-list system shall be entitled to one seat each

•

No party shall be entitled to more than 3 seats

•

Currently, there are 260 (208/0.80) seats. So 20 % of 260 are 52 seats. But this is only a ceiling.

Special Laws RA 7941 – Party-List System Act 

Seeks to representation

promote

proportional



Any party already registered need not register anew. File manifestation not later than 90 days before election.

•

A list with 5 names should be submitted to COMELEC as to who will represent the party in the Congress.

•

Ranking in the list submitted determines who shall represent party or organization.

Q: May political parties participate in the party-list elections? A: Yes, provided that the political parties themselves represent the marginalized and under represented sectors, parties and organizations. (Ang Bagong Bayani-OFW Labor Party v. COMELEC, G. R. No. 147589 26 June 2001).