Revfin.docx

Omnibus election code BP 881

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Sec. 69-nuisance candidate. Sec. 74. Contents of certificate of candidacy. – (if there is falsity in coc as stipulated here); Sec. 80. Election campaign or partisan political activity outside campaign period.

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XPN: This does not include those cases where the certificate of candidacy of the person to be substituted had been denied due course and canceled under Section 78 of the Omnibus Election Code. While the law enumerated the occasion where a candidate may be validly substituted, there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy

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Substitution can only take place on the first day of campaign period until not later than mid‐ day of election day. (COMELEC Reso. No. 9140)

EXCEPTION TO 2ND PLACER DOCT. 1. If the one who obtained the highest number of votes is disqualified and 2. The electorate is fully aware in fact and in law of the candidate’s disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate. (Grego v. COMELEC, G. R. No. 125955, June 19, 1997) Sec. 68. Disqualifications. - Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. F. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws.

1.

Yellow and orange case:

Yellow and orange are vice presidential candidates, yellow won the election. Orange subsequently filed an mr before the PET who granted it and declared orange the winner. a)

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It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period. (Sec. 80, B.P. 881). . The law is clear as daylight — any election offense that may be committed by a candidate under any election law cannot be committed before the start of the campaign period. (Penera v. COMELEC, G.R. No. 181613, Nov. 25, 2009);

Two remedies available for questioning the qualifications of the candidate: Distinction between the two proceedings under Section 78 and Section 253 under B.P. 881, thereof (1) Before elections under Section 78 and (2) After elections under Section 253(p QW).

SUBSTITUTION. If after the last day for the filing of certificates of candidacy, an official candidate of a political party: (1) dies, (2) withdraws or is (3) disqualified for any cause— a person belonging to, and certified by, the same political party may file a certificate of candidacy not later than mid‐day of election day to replace the candidate who died, withdrew or was disqualified.

b)

Would your answer be the same if they are senatorial candidates and it was the SET who issued the assailed ruling? R: no, sc has jurisdiction; L: Decisions and resolutions of the Tribunal may be questioned before the Supreme Court via a Petition for Certiorari.

c)

What is the composition of the PET?

Note: However, no substitution shall be allowed for any independent candidate REQUISITES •

GR: –

1. The substitute must belong to the same party

Aggrieved YELLOW FILED A PETITION FOR CERTIRARI. Does SC have jurisdiction to rule on the petition for certiorari on the decision of the PET? R:NO. L: Sec. 2(1793)- The Presidential Electoral Tribunal shall hear and decide in banc all presidential election contests brought under this Act and the concurrence of at least seven members of the Tribunal shall be necessary for a final decision thereon. Sec. 3 (2) The party who, in the judgment, has been declared elected, shall have the right to assume the office as soon as the judgment becomes final which shall be ten days after promulgation. The promulgation shall be made on a date previously fixed, of which notice shall be served in advance upon the parties or their attorneys, personally or by registered mail or by telegraph. No motion shall be entertained for the reopening of a case but only for the reconsideration of a decision under the evidence already of record, No party may file more than one motion for reconsideration, copy of which shall be served upon the adverse party who shall answer it within five days after the receipt thereof. Any petition for reconsideration shall be resolved within ten days after it is submitted for resolution. As soon as a decision becomes final, a copy thereof shall be furnished both houses of the Congress.

Premature campaigning •

2. The deceased, disqualified or withdrawn candidate must have duly file a valid certificate of candidacy. (Ibid.)

REPUBLIC ACT No. 1793- ACT CONSTITUTING AN INDEPENDENT PRESIDENTIAL ELECTORAL TRIBUNAL

Section 1. There shall be an independent Presidential Electoral Tribunal to be composed of eleven members which shall be the sole judge of all contests relating to the election, returns, and qualifications of the president-elect and the vice-president-elect of the Philippines. It shall be composed of the Chief Justice and the other ten members of the Supreme Court. The Chief Justice shall be its chairman. If on account of illness, absence, or incapacity upon any of the grounds mentioned in section one, Rule one hundred and twenty-six of the Rules of Court, of any member of the Tribunal, or whenever, by reason of temporary disability of any member thereof, or vacancies occurring therein the requisite number of members of the Tribunal necessary to constitute a quorum or to render a judgment in any given contest, as hereafter provided, is not present, or for any other good reason for the early disposal of the contest, the Chief Justice may designate any retired justice or justices of the Supreme Court as may be necessary, to sit temporarily as Member of the Tribunal, in order to form a quorum or until a judgment in said contest is reached: Provided, however, That if no retired justices of the Supreme Court are available or the number available is not sufficient, justices of the Court of Appeals and retired justices of the Court of Appeals may be designated to act as Member of the Tribunal. 2.

The law expressly declares that a candidate disqualified by final judgment before an election cannot be voted for, and votes cast for him shall not be counted. This is a mandatory provision of law.Section 6 of Republic Act No. 6646, The Electoral Reforms Law of 1987, states: Sec. 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. (Emphasis added)

PMP case: Can a major political party who fielded candidates for leislative districts join the party list system? Political parties can participate in partly-list elections provided they register under the party-list system and do not field candidates in legislative district elections. A political party, whether major or not, that field candidates in legislative district elections can participate in party-list elections only through its sectoral wing that can separately register under the party-list system. The sectoral wing is by itself an independent sectoral party, and is linked to a political party through a coalition.(ATONG PAGLAUM VS. COMELEC, 2013)

3.

Labo, Jr. v. COMELEC,[22] which enunciates the doctrine on the rejection of the second placer, does not apply to the present case because in Labo there was no final judgment of disqualification before the elections. The doctrine on the rejection of the second placer was applied in Labo and a host of other cases[23] because the judgment declaring the candidates disqualification in Labo and the other cases[24] had not become final before the elections. To repeat, Labo and the other cases applying the doctrine on the rejection of the second placer have one common essential condition the disqualification of the candidate had not become final before the elections. This essential condition does not exist in the present case.

CAYAT case: can a second placer to a winning candidate who was disqualified due to conviction for acts of lasciviousness, be proclaimed the winner?

There is no doubt as to the propriety of Palilengs proclamation for two basic reasons. First, the COMELEC First Divisions Resolution of 12 April 2004 cancelling Cayats certificate of candidacy due to disqualification became final and executory on 17 April 2004[21] when Cayatfailed to pay the prescribed filing fee. Thus, Palileng was the only candidate for Mayor of Buguias, Benguet in the 10 May 2004 elections. Twentythree days before election day, Cayat was already disqualified by final judgment to run for Mayor in the 10 May 2004 elections. As the only candidate, Palileng was not a second placer. On the contrary, Palileng was the sole and only placer, second to none. The doctrine on the rejection of the second placer, which triggers the rule on succession, does not apply in the present case because Palileng is not a second-placer but the only placer. Consequently, Palilengs proclamation as Mayor of Buguias, Benguet is beyond question.

Second, there are specific requirements for the application of the doctrine on the rejection of the second placer. The doctrine will apply in Bayacsans favor, regardless of his intervention in the present case, if two conditions concur: (1) the decision on Cayats disqualification remained pending on election day, 10 May 2004, resulting in the presence of two mayoralty candidates for Buguias, Benguetin the elections; and (2) the decision on Cayats disqualification became final only after the elections.

Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when the disqualification becomes final before the elections, which is the situation covered in the first sentence of Section 6. The second is when the disqualification becomes final after the elections, which is the situation covered in the second sentence of Section 6. The present case falls under the first situation. Section 6 of the Electoral Reforms Law governing the first situation is categorical: a candidate disqualified by final judgment before an election cannot be voted for, and votes cast for him shall not be counted. The Resolution disqualifying Cayat became final on 17 April 2004, way before the 10 May 2004 elections. Therefore, all the 8,164 votes cast in Cayats favor are stray. Cayat was never a candidate in the 10 May 2004 elections. Palilengs proclamation is proper because he was the sole and only candidate, second to none.

4.

JOEL MIRANDA SUBSTITUTION CASE: Can a candidate whose the certificate of candidacy had been denied due course and cancelled under Section 78 of the Code be validly substituted?

While there is no dispute as to whether or not a nominee of a registered or accredited political party may substitute for a candidate of the same party who had been disqualified for any cause, this does not include those cases where the certificate of candidacy of the person to be substituted had been denied due course and cancelled under Section 78 of the Code. Expressio unius est exclusio alterius. While the law enumerated the occasions where a candidate may be validly substituted, there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy. Under the foregoing rule, there can be no valid substitution for the latter case, much in the same way that a nuisance candidate whose certificate of candidacy is denied due course and/or cancelled may not be substituted. If the intent of the lawmakers were otherwise, they could have so easily and conveniently included those persons whose certificates of candidacy have been denied due course and/or cancelled under the provisions of Section 78 of the Code. More importantly, under the express provisions of Section 77 of the Code, not just any person, but only an official candidate of a registered or accredited political party may be substituted. In Bautista vs. Comelec (G.R. No. 133840, November 13, 1998) this Court explicitly ruled that a cancelled certificate does not give rise to a valid candidacy (p.13).

A person without a valid certificate of candidacy cannot be considered a candidate in much the same way as any person who has not filed any certificate of candidacy at all can not, by any stretch of the imagination, be a candidate at all.

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The law clearly provides: • •

SEC. 73. Certificate of candidacy No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein. (miranda vs abaya, 1999);

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What is the effect of a death of a party in an election protest? Should it warrant the dismissal of the protest?

SEC. 5. Election protest. - A petition contesting the election or returns of an elective municipal or barangay official shall be filed with the proper regional trial court or municipal trial court by any candidate who was voted for the same office and who received the second or third highest number of votes or, in a multi-slot position, was among the next four candidates following the last-ranked winner duly proclaimed, as reflected in the official results of the election contained in the Statement of Votes By Precinct. The party filing the protest shall be designated as the protestant; the adverse party shall be known as the protestee. Poe v. Arroyo. The Court as the Presidential Electoral Tribunal held

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therein:

Rule 3, Section 16 is the rule on substitution in the Rules of Court. This rule allows substitution by a legal representative. It can be gleaned from the citation of this rule that movant/intervenor seeks to appear before this Tribunal as the legal representative/substitute of the late protestant prescribed by said Section 16. However, in our application of this rule to an election contest, we have every time ruled that a public office is personal to the public officer and not a property transmissible to the heirs upon death. Thus, we consistently rejected substitution by the widow or the heirs in election contests where the protestant dies during the pendency of the protest. In Vda. de De Mesa v. Mencias, we recognized substitution upon the death of the protestee but denied substitution by the widow or heirs since they are not the real parties in interest. Similarly, in the later case of De la Victoria v. Commission on Elections, we struck down the claim of the surviving spouse and children of the protestee to the contested office for the same reason. Even in analogous cases before other electoral tribunals, involving substitution by the widow of a deceased protestant, in cases where the widow is not a real party in interest, we denied substitution by the wife or heirs. This is not to say that death of the protestant necessarily abates the pending action. We have held as early as Vda. de De Mesa (1966) that while the right to a public office is personal and exclusive to the public officer, an election protest is not purely personal and exclusive to the protestant or to the protestee such that the death of either would oust the court of all authority to continue the protest proceedings. Hence, we have allowed substitution and intervention but only by a real party in interest. A real party in interest is the party who would be benefited or injured by the judgment, and the party who is entitled to the avails of the suit. In Vda. de De Mesa v. Mencias and Lomugdang v. Javier, we permitted substitution by the vice-mayor since the vice-mayor is a real party in interest considering that if the protest succeeds and the protestee is unseated, the vice-mayor succeeds to the office of the mayor that becomes vacant if the one duly elected cannot assume office. In contrast, herein movant/intervenor, Mrs. FPJ, herself denies any claim to the august office of President. Thus, given the circumstances of this case, we can conclude that protestant's widow is not a real party in interest to this election protest. 6.

Does GO bong go violate sec. 80. Of the OEC?

7.

Sec. 80- It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period; When the applicable provisions of RA 8436, as amended by RA 9369, are read together, these provisions of law do not consider Penera a candidate for purposes other than the printing of ballots, until the start of the campaign period. However, it is no longer enough to merely file a certificate of candidacy for a person to be considered a candidate because "any person who files his certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy." Any person may thus file a certificate of candidacy on any day within the prescribed period for filing a certificate of candidacy yet that person shall be considered a candidate, for purposes of determining one’s possible violations of election laws, only during the campaign period. Indeed, there is no "election campaign" or "partisan political activity" designed to promote the election or defeat of a particular candidate or candidates to public office simply because there is no "candidate" to speak of prior to the start of the campaign period. The law is clear as daylight — any election offense that may be committed by a candidate under any election law cannot be committed before the start of the campaign period. (Penera v. COMELEC, G.R. No. 181613, Nov. 25, 2009);

JURISDICTION OF HRET AND COMELEC. Once a winning candidate has been 1. proclaimed, 2. taken his oath and 3. assumed office as a member of the House of Representatives, the jurisdiction of the Comelec over election contests relating to his election, returns and qualifications ENDS and the HRET own jurisdiction BEGINS.

The Court has invariably held that once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, the COMELEC's jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRET's own jurisdiction begins.8 It follows then that the proclamation of a winning candidate divests the COMELEC of its jurisdiction over matters pending before it at the time of the proclamation. The party questioning his qualification should now present his case in a proper proceeding before the HRET, the constitutionally mandated tribunal to hear and decide a case involving a Member of the House of Representatives with respect to the latter's election, returns and qualifications. The use of the word "sole" in Section 17, Article VI of the Constitution and in Section 2509 of the OEC underscores the exclusivity of the Electoral Tribunals' jurisdiction over election contests relating to its members.10 Section 17, Article VI of the 1987 Constitution provides: Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the 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. The senior Justice in the Electoral Tribunal shall be its Chairman. (LIMKAICHONG VS COMELEC 2009)