Election Law

ELECTION LAW

 ¤   SUFFRAGE

§  The right to vote in the election of officers chosen by the people and in the determination of questions submitted to the people.

§  Includes within its scope, election, plebiscite, initiative and referendum.

A Right and A Privilege

§  A right because it is the expression of the sovereign will of the people.

§  A privilege because its exercise is granted not to everybody but to such persons or class of persons as are most likely to exercise it for the purpose of the public good.

 Theories on Suffrage

1.     Natural Right Theory: Suffrage is a natural and inherent right of every citizen who is not disqualified by reason of his own reprehensible conduct or unfitness.

2.     Social Expediency: Suffrage is a public office or function conferred upon citizens who are fit and capable of discharging it.

3.     Tribal Theory: It is a necessary attribute of membership in the State.

4.     Feudal Theory: It is an adjunct of a particular status, generally tenurial in character. A vested privilege usually accompanying ownership of land.

5.     Ethical Theory: It is a necessary and essential means for the development of society.

Election- the means by which the people choose their officials for a definite and fixed period and to whom they entrust for the time being the exercise of the powers of government.

KINDS:

a.     Regular - one provided by law for the elections of officers either nationwide or in certain subdivisions thereof, after the expiration of the full term of the former officers.

b.    Special - one held to fill a vacancy in office before the expiration of the full term for which the incumbent was elected.

 PLEBISCITE – is an electoral process by which an initiative on the constitution is approved or rejected by the people.

INITIATIVE – is the power of the people to propose amendments to the constitution or to propose and enact legislation through an election called0 for the purpose.

REFERENDUM – is the power of the electorate to approve or reject legislation through an election called for the purpose.

ELECTION PERIOD

§  Shall commence 90 days before the day of the election and shall end 30 days thereafter.

§  The campaign period does not include the day before and the day of the election.

§  The campaign period in special election is 45 days.

HOW ELECTIONS LAWS ARE CONSTRUED

1.     Conduct of Election Officials.

Before elections- mandatory

After elections- directory

2.     Conduct of Candidates.

Before, after and during elections- mandatory

3.     On Election Disputes.

Are construed liberally so as not to defeat the will of the electorate.

¤   VOTERS

I.  QUALIFICATIONS FOR SUFFRAGE 

§  Citizenship:  Citizen of the Philippines, not otherwise disqualified by law.

§  Age: At least 18 years of age

§  Residence

1.     He /she should have resided in the Philippines for one year and 

2.     Resided in the city/municipality wherein he proposes to vote for at least 6 months immediately preceding the election.

§  Registered: Must be a duly registered voter and whose name appears in the list of voters

§  No literacy, property or other substantive requirements shall be imposed on the exercise of suffrage.

§  Transfer of residence due to work or occupation, profession or employment in private or public service, education, etc., shall not be deemed to have lost his original residence (B.P. 881, Sec.117).

Q: Y filed a petition for the cancellation of the certificate of candidacy (COC) of X. Essentially, Y sought the disqualification of X for Mayor of Z municipality alleging that X was not a registered voter in that municipality since he failed to sign his application for registration, and that the unsigned application for registration has no legal effect. X countered that his failure to sign his application did not affect the validity of his registration since he possesses the qualifications of a voter set forth in the Omnibus Election Code as amended by Section 9 of R.A. 8189. Y insists that the signature in the application for registration is indispensable for its validity as it is an authentication and affirmation of the data appearing therein. Should X be disqualified?

 A: Yes. R.A. 8189 (The Voter’s Registration Act) specifically provides that an application for registration shall contain specimen signatures of the applicant as well as his/her thumbprints, among others. The evidence shows that X failed to sign very important parts of the application, which refer to the oath which X should have taken to validate and swear to the veracity of the contents appearing in the said application. From the foregoing, the irregularities surrounding X’s application proclaims that he did not comply with the minimum requirements of R.A. 8189. Thus, not having demonstrated that he duly accomplished an application for registration, X is not a registered voter. Hence, he must be disqualified to run for Mayor. (Gunsi, Sr. v. COMELEC, G.R. No. 168792, Feb. 23, 2009).

ABSENTEE VOTING – is a process by which qualified citizens of the Philippines abroad exercise their right to vote pursuant to the constitutional mandate that Congress shall provide a system for absentee voting by qualified Filipinos abroad (Sec. 2, Art. V, 1987 Constitution).

ABSENTEE VOTING (EXCEPTION TO RESIDENCY REQUIREMENT): It is in pursuance of that intention that the Commission provided for Section 2 immediately after the residency requirement of Section 1.  By the doctrine of necessary implication in statutory construction, which may be applied in construing constitutional provisions (Marcelino v. Cruz, 121 SCRA 51, 56), the strategic location of Section 2 indicates that the Constitutional Commission provided for an exception to the actual residency requirement of Section 1 with respect to qualified Filipinos abroad.  The same Commission has in effect declared that qualified Filipinos who are not in the Philippines may be allowed to vote though they do not satisfy the residency requirement in Section 1, Article V of the Constitution.

That Section 2 of Article V of the Constitution is an exception to the residency requirement found in Section 1 of the same Article was in fact the subject of debate when Senate Bill No. 2104, which became R.A. No. 9189, was deliberated upon on the Senate floor x x x (Makalintal v. COMELEC, G.R. No. 157013, July 10, 2003).

WHO ARE QUALIFIED (SEC. 4, R.A. 9189)

1.   All citizens of the Philippines abroad

2.   Not otherwise disqualified by law

3.   At least eighteen (18) years of age

may vote for the following:

1.   President

2.   Vice president

3.   Senators

4.   Party-list representatives

WHO ARE DISQUALIFIED (SEC. 5, R.A. 9189)

1.     Those who have lost their Filipino citizenship in accordance with Philippine laws;

2.     Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country;

3.     Those who have committed and are convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not less than one (1) year, including those who have committed and found guilty of Disloyalty as defined under Art. 137 of the Revised Penal Code (RPC); such disability not having been removed by plenary pardon or amnesty.

Provided, however, that any person disqualified to vote under this subsection shall automatically acquire the right to vote upon expiration of five (5) years after service of sentence;

Provided, further, That the Commission may take cognizance of final judgments issued by foreign courts or tribunals only on the basis of reciprocity and subject to the formalities and processes prescribed by the Rules of Court on execution of judgments;

4.     An immigrant or a permanent resident who is recognized as such in the host country.

Unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be the cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia.

5.     Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority in the Philippines or abroad, as verified by the Philippine embassies, consulates or Foreign Service establishments concerned.

Unless such competent authority subsequently certifies that such person is no longer insane or incompetent.

II.    DISQUALIFICATION FOR SUFFRAGE

         (SEC. 118, B.P. 881)

a.     Persons sentenced by final judgment to suffer imprisonment for not less than 1 year, not having been pardoned or granted amnesty (right to vote is automatically reacquired 5 years after service of sentence).

b.    Persons adjudged by final judgment by a competent court or tribunal of having committed a crime involving disloyalty to the government or a crime against national security, not restored to full civil and political rights by law (right to vote is automatically reacquired 5 years after service of sentence).

c.     Persons insane or incompetent as declared by competent authority.

III.   REGISTRATION OF VOTERS

§  The 1987 Constitution repealed B.P. 881, Sec. 4 [“It shall be the duty of every citizen to register and cast his vote.”] thus making the duty DIRECTORY.

§  In order that a qualified elector may vote in any election, plebiscite or referendum, he must be registered in the Permanent List of Voters for the city or municipality in which he resides (B.P. 881, Sec. 115).

§  Elector- has all the qualifications and none of the disqualifications of a voter, but not registered, and therefore cannot exercise the right of suffrage

§  Voter- an individual qualified and not disqualified, registered and thus capable of exercising his right of suffrage

a.     Registration – does not confer the right to vote. It is but a condition precedent to the exercise of the right to vote (Yra vs. Abaño, 52 Phil. 380 [1929]).

-  It is the system of regulation of an individual’s right to suffrage as conferred by the inherent police power of the Government.

b.    System of Continuing Registration – the personal filing for registration of voters shall be conducted daily in the office of the Election Officer during regular office hours. No registration shall, however, be conducted during the period starting 120 days before the regular election and 90 days before a special election (Sec. 8, R.A. 8189).

Note: The SC upheld COMELEC’s denial of the request for two additional registration days in order to enfranchise more than 4 million youth who failed to register on or before Dec. 27, 2000. It is an accepted doctrine in administrative law that the determination of administrative agencies as to the operation, implementation and application of a law is accorded greatest weight, considering that these specialized government bodies are, by their nature and functions, in the best position to know what they can possibly do or not do under prevailing circumstances. (Akbayan Youth v. COMELEC, G.R. No. 147066, March 26, 2001).

c.     Disqualification – the same grounds as disqualification for suffrage.

d.    Illiterate or disabled voters – Any illiterate person may register with the assistance of the Election Officer or any member of an accredited citizen’s arms. 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. (R.A. 8189, Sec. 14).

e.     Election Registration Board (ERB) – There shall be in each city and municipality as many Election Registration Boards as there are election officers therein. The Board shall be composed of the Election Officer as chairman, and as members, the public school official most senior in rank and the local civil registrar, or in his absence, the city or municipal treasurer. (R.A. 8189, Sec. 15).

f.      Challenges to the right to register – any MEMBER, VOTER, CANDIDATE or WATCHER may challenge in writing the right of an applicant to register. The board must then rule within 3 days after the challenge was made.

g.    Preparation and Posting of the Certified List of Voters – The Board shall prepare and post a certified list of voters 90 days before a regular election and 60 days before a special election and furnish copies thereof to the provincial, regional, and national central files. Copies of the certified list, along with a list of deactivated voters categorized by precinct per barangay shall also be posted in the office of the Election Officer and in the bulletin board of each city/municipal hall.

GROUNDS WHEN THE LIST OF VOTERS WILL BE ALTERED

1.     Deactivation/ Reactivation

2.     Exclusion/ Inclusion

3.     Cancellation of Registration in case of Death

4.     New voters

5.     Annulment of Book of Voters

6.     Transfer of Residence

DEACTIVATION OF REGISTRATION

Removing the registration records of persons from the precinct book of voters and place the same, properly marked and dated in indelible ink, in the inactive file after entering the cause of deactivation.

Causes for Deactivation (R.A. 8189, Sec. 27)

1.     Having been sentenced by final judgment to suffer imprisonment for not less than one year, such disability not having been removed by plenary pardon or amnesty (this right shall be automatically reacquired upon the expiration of five years after service of sentence).

2.     Having been adjudged by final judgment, by a competent court or tribunal, of having committed any crime involving disloyalty to the duly constituted government, unless restored to his full civil and political rights in accordance with law (Provided that the right to vote shall be reacquired automatically upon the expiration of five years from service of sentence).

3.     Declaration by competent authority to be insane or incompetent unless such disqualification has been subsequently removed by a declaration by the proper authority that such person is no longer insane or incompetent.

4.     Failure to vote in the two successive preceding regular elections as shown by their voting records.

5.     Registration has been ordered excluded by the court.

6.     Loss of Philippine citizenship.

REACTIVATION OF REGISTRATION

(Sec. 28, R.A. 8189)

Who may file?

§  Any voter whose registration has been deactivated.

How?

§  Sworn application for reactivation of his registration in the form of an affidavit stating that the ground for the deactivation no longer exists.

When?

§   At any time but not later than 120 days before a regular election and 90 days before a special election.

INCLUSION AND EXCLUSION PROCEEDINGS

Common Rules Governing Judicial Proceedings in the Matter of Inclusion, Exclusion and Correction of Names of Voters

a.     Petition shall be filed during office hours.

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

c.     Petition shall refer only to one precinct and implead the board as respondent.

d.    No cost shall be assessed against any party in the proceedings. (Exception: if it was filed to harass the adverse party and cause him to incur expenses, the culpable party shall pay the cost and incidental expenses.)

e.     Any voter, candidate or political party affected may intervene and present his evidence.

f.     Decision is based on the evidence presented and not on stipulation of facts. Non-appearance on the day set for hearing shall be prima facie evidence that the challenged voter is fictitious.

g.    It 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.

Petition for inclusion

Who may file?  Any person whose:

§  Application for registration has been disapproved by the board; or

§  Name has been stricken out from the list.

How?

§  Filed with a court a petition to include his name in the permanent list of voters in his precinct.

§  Supported by a certificate of disapproval of his application and proof of service of notice of his petition upon the Board. The petition shall be decided within 15 days after its filing.

When?

§  At any time except 105 days prior to a regular election or 75 days prior to a special election.

Petition for exclusion

Who may file?

§  Any registered voter, representative of a political party or the Election Officer.

Form

§  A sworn petition for the exclusion of a voter from the permanent list of voters giving the name, address and the precinct of the challenged voter.

When?

a.     At any time except 100 days prior to a regular election or 65 days prior to special election

b.    COMELEC can annul an election

Jurisdiction in inclusion and exclusion cases

1.     Exclusive Original Jurisdiction: Municipal or Metropolitan Trial Courts

2.     Appeal:

• Directly to the proper Regional Trial Court within 5 days from receipt of notice.
• The RTC shall decide the appeal within 10 days from receipt.

ANNULMENT OF BOOK OF VOTERS

How?

§  Upon verified petition of any voter or election officer or duly registered political party, and after notice and hearing.

Grounds for Annulment

a.     It was not prepared in accordance with the provisions of the election law, or

b.    It was prepared through fraud, bribery, forgery, impersonation, intimidation force or any similar irregularity, or

c.     It contains data that are statistically improbable.

▪     No order, ruling or decision annulling a book of voters shall be executed within 90 days before an election (R.A. 8189, Sec. 39).

& Annulment of the list of voters shall not constitute a ground for a pre-proclamation contest (Ututalum v. COMELEC, G.R. Nos. 84843-44, January 22, 1990.).

¤   POLITICAL PARTIES

Party – means either a political party or a sectoral party or a coalition of parties.

Sectoral Party - an organized group of citizens belonging to any of the sectors enumerated in Sec. 5 hereof whose principal advocacy pertains to the special interest and concerns of their sector (Sec. 3, RA 7941).

COALITION - an aggrupation of duly registered national, regional, sectoral parties or organizations for political and/or election purposes.

SECTORAL ORGANIZATION - a group of citizens or a coalition of groups of citizens who share similar physical attributes or characteristics, employment, interests, or concerns.

POLITICAL PARTY - 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 certain of its leaders and members as candidates for public office.

§  MUST first be duly registered with the COMELEC before it can acquire juridical personality.

Kinds of Political Parties:

a.     National party – constituency is spread over the geographical territory of at least a majority of the regions.

b.    Regional party – constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising the region.

TYPES OF POLITICAL PARTIES

1.   Registered Parties:

a.     Dominant Majority Party – usually the administration party; entitled to a copy of election return.

b.    Dominant Minority Party – entitled to a copy of election return.

c.     Majority Political Party

d.    Top 3 Political Parties – entitled to appoint principal watcher and a copy of the certificate of canvass.

e.     Bottom 3 political parties – entitled to appoint principal watcher.

2.   Non-registered parties

Criteria to Determine the Type of Political Party

a.     Established Record of the said parties, showing in past elections.

b.    Number of Incumbent Elective Officials.

c.     Identifiable political organizations and strengths.

d.    Ability to fill a complete slate of candidates.

e.     Other analogous circumstances.

FORFEITURE OF STATUS AS A REGISTERED POLITICAL PARTY

§  The status shall be deemed forfeited if the political party, singly or in coalition with others, fails to obtain at least 10% of the votes cast in the constituency in which it nominated and supported a candidate/s in the election next following its registration.

§  There shall be notice and hearing.

§  Political parties registered under the Party-list system shall be entitled to appoint poll watchers in accordance with law (Sec. 8, Art. IX-C, 1987 Constitution).

§  Sectors shall include labor, peasant, fisher folks, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals (Sec. 4, RA 7941).

ELECTION OF PARTY-LIST SYSTEM:

The party-list system is a mechanism of proportional representation in the election of representatives to the House from national, regional and sectoral parties or organizations or coalitions thereof registered with the COMELEC. (Sec. 3[a], R.A. 7941).

REGISTRATION:

Any organized group of persons may register as a party, organization or coalition for purposes of the party-list system by filing with the COMELEC not later than ninety (90) days before the election, a petition verified by its president or secretary stating its desire to participate in the party-list system as a national, regional or sectoral party or organization or a coalition of such parties or organizations. (Sec. 5, R.A. 7941).

1.     No votes cast in favor of political party, organization or coalition shall be valid except for those registered under the party-list system. (Sec. 7, Art. IX-C, 1987 Constitution).

2.     Purposes:

§  To acquire juridical personality;

§  To entitle it to rights and privileges granted to political parties; and

§  To participate in the party-list system.

3.     Groups which cannot be registered as political parties (Sec. 3, R.A. 7941):

a.     Religious denominations or sects;

b.    Those who seek to achieve their goals through violence or unlawful means;

c.     Those who refuse to uphold and adhere to the Constitution; and

d.    Those supported by foreign governments.

4.     Grounds for cancellation of registration (Sec. 6, R.A. 7941):

a.     It is a religious sect or denomination, organization or association organized for religious purposes;

b.    It advocates violence or unlawful means to seek its goal;

c.     It is a foreign party or organization;

d.    It 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;

e.     It violates or fails to comply with laws, rules or regulations relating to elections;

f.     It declares untruthful statements in its petition;

g.    It has ceased to exist for at least one (1) year; or

h.     It fails to participate in the last two (2) preceding elections or fails to obtain at least two percentum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered.

ELECTION OF PARTY-LIST REPRESENTATIVES

The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. (Sec. 5[2], Art. VI. 1987, Constitution).

Nomination of Party-List Representatives:

Each registered party, organization or coalition shall submit to the COMELEC not later than forty-five (45) days before the election a list of names, not less than five (5), from which party-list representatives shall be chosen in case it obtains the required number of votes.

§  A person may be nominated in one (1) list only.

§  Only person who have given their consent in writing may be named in the list.

§  The list shall not include any candidate for any elective office or a person who has lost his bid for an elective office in the immediately preceding election.

§  No change of names or alteration of the order of nominees shall be allowed after the same shall have been submitted to the COMELEC, except:

a.     Nominee dies or

b.    Withdraws in writing his nomination

c.     Becomes incapacitated, in which case the name of the substitute nominee shall be placed last in the list

§   Incumbent sectoral representatives in the House of Representatives who are nominated in the party-list system shall not be considered resigned. (Section 8, R.A. 7641).  

Qualifications of Party-List Representatives:

1.     natural-born citizens of the Philippines;

2.     a registered voter

3.     a registered voter of the Philippines for a period of not less than one (1) year immediately preceding the day of the election;

4.      able to read and write;

5.     a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election;

6.     at least twenty (25) years of age on the day of the election; in case of a nominee of the youth sector, he must at least be twenty (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue in office until the expiration of his term. (Section 9, R.A. 7941).

The guidelines for determining whether party-list groups have complied with the requirements of law; (See also Ang Bagong Bayani-OFW Labor Party v. COMELEC, G.R. Nos. 147589 and 147613, June 26, 2001).

1.     The political party, sector, organization or coalition must represent the marginalized and the underrepresented groups identified in Section 5 of R.A. 7941. Majority of its membership should belong to the marginalized and underrepresented;

2.     While even major political parties are expressly allowed by R.A. 7941 and the Constitution, they must comply with the declared statutory policy of “Filipino citizens belonging to marginalized and underrepresented sectors to be elected to the House of Representatives.” Thus, they must show that they represent the interest of the marginalized and underrepresented;

3.     Religious sector may nto be represented in the party-list system; except that priests, imams or pastors may be elected should they represent not their religious sect but the indigenous community sector;

4.     A party or an organization must not be disqualified under Sec. 6, R.A. 7941;

5.     The party or organization must not be an adjunct of, or a project organized or an entity founded or assisted by, the government;

6.     The party, including its nominees must comply with the qualification requirements of Sec. 9, R.A. 7941;

7.     Not only the candidate party or organization must represent the marginalized and underrepresented sectors, so also must its nominees;

8.     While lacking a well-defined political constituency, the nominee must likewise be able to contribute to the formation and enactment of appropriate legislation that will benefit the nation as a whole.

 

¤   CERTIFICATE OF CANDIDACY

CANDIDATE: The term "candidate" refers to 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(a), B.P. 881].

&   Qualifications prescribed by law are continuing requirements and must be possessed for the duration of the officer’s active tenure. Once any of the required qualifications is lost, his title to the office may be seasonably challenged. (Frivaldo v. COMELEC, G.R. No. 87193, June 23, 1989]; (Labo, Jr. v. COMELEC, G.R. No. 86564, August 1, 1989)

Rules on Filing of Certificates of Candidacy

1.     No person shall be elected into public office unless he files his certificate of candidacy within the prescribed period.

2.     No person shall be eligible for more than one office. If he/she files for more than one position, he shall not be eligible for all unless he cancels all and retains one.

3.     The certificate of candidacy shall be filed by the candidate personally or by his duly authorized representative.

4.     Upon filing, an individual becomes a candidate, he is already covered by rules, restrictions and processes involving candidates.

 

Appointive officials; filing of certificate of candidacy.

Under Section 13 of RA 9369, which reiterates Section 66 of the Omnibus Election Code, any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

On the other hand, pursuant to Section 14 of RA 9006 or the Fair Election Act, which repealed Section 67 of the Omnibus Election Code and rendered ineffective Section 11 of R.A. 8436 insofar as it considered an elected official as resigned only upon the start of the campaign period corresponding to the positions for which they are running, an elected official is not deemed to have resigned from his office upon the filing of his certificate of candidacy for the same or any other elected office or position. In fine, an elected official may run for another position without forfeiting his seat.

& “Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369 are not violative of the equal protection clause of the Constitution and does not suffer from overbreadth.” (Quinto v.. Commission on Elections, G.R. No. 189698, February 22, 2010)

§  This includes employees of GOCC’s without original charter.

& “Formal defects in certificate of candidacy, such as lack of the required oath does not annul the election of a candidate (De Guzman v. Board of Canvassers, 48 Phil 211, [1926])”

& Failures to indicate in his certificate of candidacy his precinct number and particular barangay where he is a registered voter is not a sufficient ground to disqualify a candidate. It is enough that he is a registered voter in the precinct where he intends to vote which should be within the district where he is running for office” (Jurilla v. COMELEC, G.R. No. 105435, June 2, 1994).

SUBSTITUTION OF CANDIDACY

The concept of substitution of candidacy states that 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 (COC) not later than mid-day of election day to replace the candidate who died, withdrew, or was disqualified.

As to DEATH, a deceased candidate is required to have duly filed valid COC, otherwise his political party will not be allowed to file a substitute candidate in his stead.

As to WITHDRAWAL OF CANDIDACY, the withdrawing candidate is required to have duly filed a valid COC in order to allow his political party to file a substitute candidate in his stead.

§  The withdrawal of the withdrawal, for the purpose of reviving the certificate of candidacy, must be made within the period provided by law for the filing of certificates of candidacy.

& There is nothing in Sec. 73, B.P. 881, which mandates that the affidavit of withdrawal must be filed with the same office where the certificate of candidacy to be withdrawn was filed. Thus, it can be filed directly with the:

1.    main office of the COMELEC;

2.    the office of the regional election director concerned;

3.    the office of the municipal election supervisor of the province to which the municipality belongs; or

4.   the office of the municipal election officer of the municipality.(Loreto-Go v. COMELEC, G.R. No. 147741, May 10, 2001)

EFFECT OF FILING TWO (2) CERTIFICATES OF CANDIDACY

§  Renders a candidate ineligible for either position.

§  Withdrawal of one of the certificates at any time before election renders him eligible for election to the office sought in the remaining certificate of candidacy.

§  Sec.73, B.P. 881 requires that the withdrawal of one of the certificates must be made through a sworn declaration filed with the Commission before the deadline for the filing of certificates of candidacy.

§  Effect if the winning candidate is not qualified and cannot qualify for the office to which he was elected: a permanent vacancy is created.

& As to DISQUALIFICATION, it does not include those cases where the COC of the person to be substituted has been denied due course and canceled under Section 78 of the Omnibus Election Code. While the law enumerated the occasion where a candidate may validly be 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 COC.

THEREFORE, a valid COC is likewise an indispensable requisite in the case of a substitution of a disqualified candidate. (Miranda v. Abaya, G.R. No. 136351, July 28, 1999).

DISQUALIFICATIONS

1.     Under the Omnibus Election Code:

a.     Declared as incompetent or insane by competent authority;

b.    Convicted by final judgment for subversion, insurrection, rebellion or any offense for which he has been sentenced to a penalty of 18 months imprisonment;

c.     Convicted by final judgment for a crime involving moral turpitude;

§  Violation of B.P. 22

§  Violation of the Anti-Fencing Law

§  Direct bribery

d.    Any person who is a permanent resident of or immigrant to a foreign country

2.     Election offenses under Sec 68 of the Omnibus Election Code (OEC).

3.     Not possessing qualifications and possessing disqualifications under the Local Government Code:

a.     Sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one year or more of imprisonment within two years after serving sentence;

Note: Those who have not served their sentence by reason of the grant of probation, which should not be equated with service of sentence, should not be disqualified from running for a local elective office because the two-year period of ineligibility does not even begin to run. (Moreno v. COMELEC, G.R. No. 168550, Aug. 10, 2006).

b.    Removed from office as a result of an administrative case;

c.     Convicted by final judgment for violating the oath of allegiance to the Republic;

d.    Dual citizenship (more specifically, dual allegiance);

e.     Fugitives from justice in criminal or non-political cases here or abroad;

Note: 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, G.R. No. 127318, April 25, 1999.)

f.     Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right;

Note: “Green Card” is ample evidence to show that the person is an immigrant to, or a permanent resident of, the United States of America. (Caasi v. CA, G.R. No. 88831, Nov. 8, 1990).

g.    Insane or feeble-minded.

4.     Nuisance candidate;

5.     Violation of Sec. 73 of OEC with regard to certificate of candidacy; and

6.     Violation of Sec. 78 which is material   misrepresentation of requirements under Sec. 74.

DIFFERENT TYPES OF ELECTION DISPUTES

a.     Pre-election disputes

a.     Petition for Disqualification

b.    Petition to Deny Due Course or to Cancel a Certificate of Candidacy

c.     Petition to Declare a Nuisance Candidate

b.    Pre-proclamation controversies – disputes concerning questions pertaining to:

a.     The proceedings before the board of canvassers; or

b.    The preparation, transmission, receipt, custody and appreciation of election returns

c.     Post election disputes

a.     Election protest

b.    Quo warranto

c.     Criminal prosecution

PRE-ELECTION DISPUTES

a. Petition for Disqualification – is the remedy against any candidate who does not possess all the qualifications required by the Constitution or law, or who commits any act declared by law to be grounds for disqualification. 

When to file: The petition may be filed after the filing of COC but not later than the date of proclamation.

Effects of Disqualification of Candidates:

“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” (R.A. 6646, Sec. 6).

& Note that the COMELEC can suspend proclamation only when evidence of the winning candidate’s guilt is strong (Codilla, Sr. v. De Venecia, et. al., G.R. No. 150605, Dec. 10, 2002).

& The use of the word may indicates that the suspension of the proclamation is merely permissive. If the COMELEC does not find any sufficient ground to suspend proclamation, then a proclamation may be made. (Grego v. COMELEC, G.R. No. 125955,  June 19, 1997)

&  It is incorrect to say that since a candidate has been disqualified, the votes intended for the disqualified candidate should in effect, be null and void. This would amount to disenfranchising the electorate in whom sovereignty reside. (Ortega v. COMELEC, G.R. No. 105111, July 3, 1992).

·         The ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected (Labo, Jr. v. COMELEC, G.R. Nos. 105111 and 105384,  July  3, 1992).

Exceptions:

1.   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)

Jurisdiction: While the COMELEC is vested with the power to declare valid or invalid a certificate of candidacy, its refusal to exercise that power following the proclamation and assumption of the position by Farinas is recognition of the jurisdictional boundaries separating the COMELEC and the Electoral Tribunal of the House of Representatives (HRET).  Under Article VI, Section 17 of the Constitution, the HRET has sole and exclusive jurisdiction over all contests relative to the election, returns, and qualifications of members of the House of Representatives.  Thus, once a winning candidate has been proclaimed, taken his oath, and assumed office as a member of the House of Representatives, COMELEC’s jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRET’s own jurisdiction begins.  Thus, the COMELEC’s decision to discontinue exercising jurisdiction over the case is justifiable, in deference to the HRET’s own jurisdiction and functions (Guerrero v. COMELEC, G.R. No. 137004,[July 26, 2000).

COMELEC Resolution No. 2050

If a complaint is filed with the COMELEC against a candidate who has already been proclaimed winner, charging an election offense under Sec. 261 of the Omnibus Election Code, as amended by Republic Act nos. 6646 and 8436 and praying for the disqualification of the said candidate, the COMELEC shall determine the existence of probable cause for the filing of an Information against the candidate for the election offense charged.

§ However, if the COMELEC finds no probable cause, it is mandated to dismiss the complaint for the disqualification of the candidate.

§ If the COMELEC finds that there is probable cause, it shall order its Law Department to file the appropriate Information with the RTC which has territorial jurisdiction over the offense, but shall, nonetheless, order the dismissal of the complaint for disqualification, without prejudice to the outcome of the criminal case.

& If the trial court finds the accused guilty beyond reasonable doubt of the offense charged, it shall also order his disqualification pursuant to Sec. 264 of the Omnibus Election Code, as amended by amended by Section 46 of Republic Act No. 8189 (Albana, Et. Al. v. COMELEC, Et. Al., G.R. No. 163302, July 23, 2004).

b.  Petition to Deny Due Course or to Cancel a Certificate of Candidacy – the COMELEC, upon proper petition may cancel a certificate of candidacy on the ground that any material representation contained therein as required under Section 74 of the B.P. 881 is false (Sec. 78, B.P. 881), provided that:

§   The false representation pertains to material matter affecting substantive rights of a candidate; and

§   The false representation must consist of deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. (Salcedo II v. COMELEC, G.R. No. L-16835, July 26, 1960)

& These two requirements must concur to warrant the cancellation of the certificate of candidacy.

When to file:

§  The petition may be filed not later than 25 days from the filing of the certificate of candidacy.

§  It shall be decided not later than 15 days before the election, after due notice and hearing. 

Jurisdiction: over the petition lies with the COMELEC in division, not with the COMELEC en banc (Garvida v. Sales, G.R. No. 122872, Sept. 10, 1997).

c.  Petition to Declare a Nuisance Candidate – COMELEC may motu proprio or upon petition of an interested party, refuse to give due course to or cancel a certificate of candidacy if shown that said certificate was filed to:

1.     Put the election process in mockery or disrepute;

2.     Cause confusion among the voters by the similarity of the names of the registered candidates; and

3.     By other circumstances or acts clearly demonstrating that the candidate has no bona fide intention to run and thus prevent a faithful determination of the true will of the electorate.

§  The proclamation of the winning candidate renders moot and academic a motion for reconsideration filed by a candidate who had been earlier declared by the COMELEC to be a nuisance candidate (Garcia v. COMELEC, G.R. 121139, July 12, 1996)

PRE-PROCLAMATION CONTROVERSIES

§  Refers any question pertaining to or affecting the proceedings of the Board which may be raised by any candidate or by any registered political party or coalition of parties before the board or directly with the COMELEC.

§   Also refers to any matter raised under Secs. 233, 234, 235 and 236 relating to the preparation, transmission, receipt, custody and appreciation of the election returns (Sec. 241, B.P. 881).

 

When Pre-Proclamation Cases Not Allowed 

General Rule: Pre-proclamation cases on matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns or the certificates of canvass NOT allowed in elections of:

1.     President

2.     Vice-President

3.     Senator

4.     Member of the House of Representatives

Exceptions:

1.     Determination of the authenticity and due execution of certificates of canvass as provided in Sec. 30, R.A. 7166, as amended by R.A. 9369;

2.     Correction of manifest errors in the certificate of canvass or election return; and

3.     Matters relating to the composition or proceedings of the Board of Canvassers

COMELEC Jurisdiction: The COMELEC has exclusive jurisdiction over pre-proclamation cases.

Note: COMELEC is with authority to annul any canvass and proclamation illegally made. The fact that a candidate illegally proclaimed has assumed office is not a bar to the exercise of such power. It is also true that as a general rule, the proper remedy after the proclamation of the winning candidate for the position contested would be to file a regular election protest or quo warranto. This rule, however, admits of exceptions and one of those is where the proclamation was null and void. In such a case, the proclaimed candidate’s assumption of office cannot deprive the COMELEC of the power to declare such proclamation a nullity. (Raymond P. Espidol v. COMELEC, et. al., G.R. No. 164922, Oct. 11, 2005).

Issues Which May Be Raised in Pre-Proclamation Controversies:

      Illegal composition or proceedings of the Board of Canvassers;

& By participating in the proceedings, the petitioner is deemed to have acquiesced in the composition of the board of canvassers. A petition based on illegal composition of the board of canvassers should be filed immediately when the Board begins to act. A petition filed 5 days after proclamation is filed out of time (Laodenio v. COMELEC, G.R. No. 122391, August 7, 1997).

      The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code;

§  While the duty of the Board of Canvassers is ministerial and, as a general rule, it may not inquire into the issues beyond the election return, the situation contemplated in Secs. 234, 235 and 236 allow the Board of Canvassers to order the opening of the ballot box and recount the votes of the candidates affected.

      The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and

      When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates.

When Pre-Proclamation Cases are deemed TERMINATED (under RA 7166)

General Rule:  All pre-proclamation cases pending before the COMELEC shall be deemed terminated at the beginning of the term of the officer involved and the rulings of the boards of canvassers concerned deemed affirmed.

§  This is without prejudice to the filing of a regular election protest by the aggrieved party.

Exceptions:

1.     The COMELEC determines that the petition is meritorious and issues an order for the proceedings to continue; or

2.     The Supreme Court issues an order for the proceedings to continue in a petition for certiorari.

Nature of Pre-proclamation Controversy:

1.     Pre-proclamation controversies shall be heard summarily by the COMELEC.

2.     Its decision shall be executory after the lapse of 5 days from receipt by the losing party of the decision, unless restrained by the SC.

PROCEDURE:

1.     Commencement of pre-proclamation controversy - questions affecting the composition or proceedings of the board of canvassers may be initiated in the board or directly with the Commission. However, matters raised under Sections 233, 234, 235 and 236 of the Omnibus Election Code in relation to the preparation, transmission, receipt, custody and appreciation of the election returns, and the certificates of canvass shall be brought in the first instance before the board of canvassers only.  (Sec. 17, R.A. 7166).

2.     Summary disposition of pre-proclamation controversies - All pre-proclamation controversies on election returns or certificates of canvass shall, on the basis of the records and evidence elevated to it by the board of canvassers, be disposed of summarily by the Commission within seven (7) days from receipt thereof. Its decisions shall be executory after the lapse of seven (7) days for receipts by the losing party of the decision of the Commission.  (Sec. 18, R.A. 7166).

3.     Disposition of contested election return. (Sec. 20, R.A. 7166).

4.     Partial proclamation - Notwithstanding the pendency of any pre-proclamation controversy, the Commission may summarily order the proclamation of other winning candidates whose election will not be affected by the outcome of the controversy. (Sec. 21, R.A. 7166).

Doctrine of Statistical Improbability -

It appearing therein that contrary to all statistical probabilities in the first set, in each precinct the number of registered voters equalled the number of ballots and the number of votes reportedly cast and tallied for each and every candidate of the Liberal Party, the party in power; whereas, all the candidates of the Nacionalista Party got exactly zero; and in the second set, again contrary to all statistical probabilities all the reported votes were for candidates of the Liberal Party, all of whom were credited with exactly the same number of votes in each precinct, ranging from 240 in one precinct to 650 in another precinct; whereas, all the candidates of the Nacionalista Party were given exactly zero in all said precincts.

We opined that the election result to said precincts as reported was utterly improbable and clearly incredible. x x x These returns were obviously false or fabricated. x x x that the returns show "prima facie" that they do not reflect true and valid reports of regular voting (Lagumbay v. COMELEC, L-25444, January 31, 1966).

&  Where the objections to the inclusion of the election returns are directed primarily at the ballots reflected in the returns, the issue involves appreciation of ballots and cannot be raised in a pre-proclamation controversy. (Patoray v. COMELEC, G.R. No. 120823, October 24, 1995).

&  The technical examination of the signatures and thumb marks of the voters runs counter to the nature and scope of a pre-proclamation contest; the remedy is to raise these issues in an election contest. (Balindong v. COMELEC G.R. Nos. 153991-92, October 16, 2003).

&  Padding of the Registry List of Voters of a municipality is not a listed ground for a pre-proclamation controversy (Ututalum v. COMELEC, G.R. No. 84843-44, January 22, 1990).

&  Because the petitioner had already been proclaimed, had taken his oath and had assumed his duties as Member, House of Representatives, the issue of invalidity of his proclamation and irregularities connected therewith, is a matter properly addressed to the House of Representatives Electoral Tribunal (Lazatin v. COMELEC, G.R. No. 80007, January 25, 1988).

&  The filing with the COMELEC of a petition to annul or to suspend proclamation shall suspend the running of the period to file an election protest (Tan v. COMELEC, G.R. Nos. 166143-47.  November 20, 2006).

POST ELECTION DISPUTES OR ELECTION CONTESTS

§  Any matter involving title or claim of title to an elective office, made before or after the proclamation of the winner, whether or not contestant is claiming office in dispute.

& Election contests involve public interest, and technicalities and procedural barriers must yield if they constitute an obstacle to the determination of the true will of the electorate in the choice of their elective officials. The Court frowns upon any interpretation of the law that would hinder in any way not only the free and intelligent casting of the votes in an election but also the correct ascertainment of the results (O’Hara v. COMELEC, G.R. No. 139008.  March 13, 2002).

Jurisdiction over Election Contests

1.     Original and Exclusive

a.     President/Vice-President – Supreme Court en banc

b.    Senator – Senate Electoral Tribunal

c.     Representatives – House of Representatives Electoral Tribunal

d.    Regional/Provincial/City – COMELEC

e.     Municipality – Regional Trial Court

f.     Barangay/SK – Municipal Trial Court

2.     Appellate Jurisdiction

a.     From decisions of the RTC and MTC – appeal exclusively to COMELEC, decisions shall be final and executory.

b.    From decisions of COMELEC – petition for review by certiorari filed with the Supreme Court within 30 days on the ground of grave abuse of discretion amounting to lack of or in excess of jurisdiction or violation of due process.

c.     From decisions of the Electoral Tribunal – petition for review by certiorari filed with Supreme Court on the ground of grave abuse of discretion amounting to lack of or in excess of jurisdiction or violation of due process.

& In the exercise of its exclusive appellate jurisdiction, the COMELEC has the power to issue writs of prohibition, mandamus, or certiorari, because of the last paragraph of Sec. 50, B.P. 881 (Relampagos v. Cumba, G.R. No. 118861, April 27, 1995).

Distinctions between Pre-Proclamation Controversy and Election Contest

Dividing line: Proclamation of a candidate

Jurisdiction

Pre-Proclamation Controversy	Election Contest
Jurisdiction of COMELEC is administrative / quasi-judicial.	Jurisdiction of COMELEC is judicial.
Governed by requirements of                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                administrative due process.	Governed by the requirements of judicial due process.

§  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.

§  However, in some cases, the Supreme Court recognized the jurisdiction of COMELEC over municipal cases even after proclamation. 

§  Relate to the provision in RA 7166 allowing pre-proclamation controversy proceedings to continue even after a proclamation has been made.

ACTIONS THAT MAY BE FILED

a. Election Protest

• A contest between the defeated and winning candidates based on grounds of election frauds or irregularities.
• Can only be filed by a candidate who has filed a certificate of candidacy and has been voted for.

      Requisites:

1.     Filed by any candidate who has filed a certificate of candidacy and voted for the same office.

2.     On grounds of

a.     fraud

b.    terrorism

c.     irregularities or

d.    illegal acts committed before, during or after casting and counting of votes.

Time to file: within 10 days from proclamation of results of election.

& 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 (Bulaong v. COMELEC G.R. No. 107987,  March 31, 1993).

& As a general rule, the filing of an election protest or quo warranto precludes the subsequent filing of a pre-proclamation controversy or amounts to an abandonment of one earlier filed (Samad v. COMELEC, G.R. No. 107854, July 16, 1993).

b.   Quo Warranto

• Refers to questions of disloyalty or ineligibility of the winning candidate; a proceeding to unseat the ineligible person from office but not to install the protestant in his place; may be filed by any voter.

Requisites: 

1.     Filed by a registered voter

2.     On grounds of

a.     ineligibility or   

b.    disloyalty to the Republic;

     

Time to file: within 10 days from proclamation of results of election.

N.B.: The 2 remedies (Election Protest and Quo Warranto) may not be joined in one petition.

Election Protest	Quo Warranto
Strictly a contest between the defeated and winning candidates, based on grounds of election frauds or irregularities, as to who actually obtained the majority of the legal votes and therefore is entitled to hold the office.	Refers to questions of disloyalty or ineligibility of the winning candidate. It is a proceeding to unseat the ineligible person from office, but not to install the protestant in his place.
Can only be filed by a candidate who has duly filed a certificate of candidacy and has been voted for.	Can be filed by any voter. It is for this reason that it is not considered a contest where the parties strive for supremacy.
A protestee may be ousted and the protestant seated in the office vacated.	While the respondent may be unseated, the petitioner will not be seated. (Luison v. Garcia, G.R. No. L-10981,  April 25, 1958

Award of Damages – Actual or compensatory damages may be granted in all election contests or in quo warranto proceedings.

General Rule: The filing of an election protest or quo warranto PRECLUDES the subsequent filing of a pre-proclamation controversy or amounts to an abandonment of one earlier filed, thus depriving the COMELEC of the authority to inquire into and pass upon the title of the protestee or the validity of his proclamation.

Exceptions:

1.     The Board of Canvassers was improperly constituted.

2.     Quo warranto is not the proper remedy.

3.     What was filed was not really a petition for quo warranto or an election protest but a petition to annul a proclamation.

4.     The filing of an election contest was expressly made without prejudice to the pre-proclamation controversy, or was made ad cautelam.

5.     The proclamation was null and void (Dumayas, Jr. v. COMELEC, G.R. No. 141952-53, April 20, 2001).

& The death of the protestant does not extinguish an election protest. Election protest is imbued with public interest which raises it onto a plane over and above ordinary civil actions, because it involves 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, G.R. No. 125249, February 7, 1997).

& The widow of the protestant has no status of real party in interest to substitute or intervene for the latter who died during the pendency of the election protest. (Poe v. Arroyo, P.E.T. Case No. 002, March 29, 2005).

¤   ELECTION CAMPAIGN / PARTISAN POLITICAL ACTIVITY

      The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include:

1.   Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate;

2.   Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate;

3.   Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office;

4.   Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or

5.   Directly or indirectly soliciting votes, pledges or support for or against a candidate (Sec. 79[b], B.P. 881)

§  Any person, including officers and employees in civil service, which shall be understood to include officers and employees of GOCC’s, are not prevented from expressing his views on current political problems or issues or, from mentioning names of candidates for public office, which he supports.

Lawful Election Propaganda under the Fair Election Act

1.     Pamphlets, leaflets, cards, decals, stickers, or other written or printed materials the size of which does not exceed eight and one-half inches in width and fourteen inches in length.

2.     Handwritten or printed letters urging voters to vote for or against any particular political party or candidate for public office.

3.     Cloth, paper or cardboard posters, whether framed or posted, with an area not exceeding 2 feet by 3 feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding 3 feet by 8 feet in size, shall be-allowed: Provided, That said 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.

4.     Paid advertisements in print or broadcast media: Provided, that the advertisements shall follow the requirements set forth in Sec. 4 of Fair Election Act.

5.     All other forms of election propaganda not prohibited by the Omnibus Election Code or Fair Election Act (Sec. 3, R.A. 9006,).

Prohibited Forms of Election Propaganda (RA 9006, Sec. 10)

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 the due process of law” (Badoy v. COMELEC 35 SCRA 285 [1970]).

Important Features of Fair Election Act (RA 9006):  Repeal of Sec. 67 of the OEC

Now, any ELECTIVE official, whether national or local, running for any office other than the one which he is holding in a permanent capacity shall not be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

ELECTION EXPENSES

Limitations

1.     For candidates:

a.     President and Vice-President = P10/voter;

b.     Other candidates, if with party = P3/voter;

c.     Other candidates, if without party = P5/voter.

2.     For political parties = P5/voter.

Statement of Contribution and Expenses

Every candidate and treasurer of political party shall, within 30 days after the day of election, file with the COMELEC the full, true and itemized statement of all contributions connected with election (R.A. 7166, Sec. 14).

¤   BOARD OF ELECTION INSPECTORS

Composition of Board of Election Inspectors (BEI)

a.     Chairman

b.    2 members

Qualifications 

1.     All must be public school teachers. 

2.     Must be of good moral character and irreproachable reputation.

3.     Registered voters of the city or municipality.

4.     Have never been convicted of election offense or crime punishable by more that 6 months imprisonment. 

5.     No pending information for an election offense.

6.     Must be able to speak and write English or the local dialect.

Disqualification of BEI

1.     Must not be related within the 4^th civil degree of consanguinity or affinity to any member of the BEI or to any candidate to be voted for in the polling place.

2.     Must not engage in any partisan political activity.

Powers of the BEI

1.     Conduct the voting and counting of votes.

2.     Acts as deputies of COMELEC in the supervision and control of election.

3.     Maintain order within the polling place and its premises.

4.     To keep access thereto open and unobstructed.

5.     To enforce obedience with its lawful orders.

6.     Perform other functions prescribed.

Proceedings of BEI

1.     Meetings of the BEI shall be public and held only in the authorized polling place.

2.     BEI has authority to maintain order within the polling place and its premises, to keep access thereto open and unobstructed and to enforce obedience to its lawful orders.

¤   WATCHERS

§  (Sec. 178 of B.P. 881 as amended by Sec. 26 of RA 7166)

Qualifications    

1.     Voter of city or municipality.

2.     Good reputation.

3.     Not have been convicted of any election offense of any kind.

4.     Know how to read and write.

5.     Not related within 4^th civil degree of consanguinity or affinity to any member of BEI.

Rights and Duties of Watchers

1.     Stay in the space reserved for them inside the polling place.

2.     Witness and inform themselves of the proceedings of the BEI.

3.     Take notes and photographs of proceedings.

4.     File protests against any irregularity or violation of law.

5.     Be furnished with the certificate of the number of votes cast for each candidate, duly signed and thumb marked by the members of the BEI.

KINDS OF BALLOTS

1.     Official Ballots

2.     Emergency Ballots - used when official ballots were not received on time or not sufficient for all registered voters or destroyed at such time as shall render it impossible to replace them, in which cases, the city/municipal treasurer concerned shall procure from any available source which shall be similar to official ones.

3.     Excess Ballots – found in ballot box which exceed number of registered voters who cast their votes.

4.     Marked ballots – contain signs or marks intended to identify ballot.

Kinds:

a.     Containing impertinent expressions;

b.    Containing drawings, identical features and characteristics;

c.     Containing names of important personages; and

d.    Containing common and qualifying expressions, which are patently irrelevant.

5.     Submarine Ballots – those prepared, under a system of election frauds, by persons other than the real voters. 

RULES IN APPRECIATION of BALLOTS

a.    Idem sonam – a name or surname incorrectly written which when read has a sound similar to the name or surname of a candidate when correctly written shall be counted in his favor.

b.    When 2 or more words written on the same line all of which are the surname of 2 or more candidates, it shall not be counted for any of them unless 1 is a surname of an incumbent who has served for at least 1 year in which case it shall be counted in favor of the latter (equity of the incumbent).

c.    When a single word is written which is the first name of a candidate at the same time the surname of another, the vote shall be counted in favor of the latter.

d.    When 2 words are written on the ballot, one of which is the 1^st name of the candidate and the other is the surname of his opponent, the vote shall not be counted for either.

e.     Ballots containing prefixes such as “Sr.”, “Mr.”, “Datu”, “Don” are valid.

f.     Nicknames and appellations if accompanied by the 1^st name or surname of the candidate are valid EXCEPT when they are used as a means to identify the voter.

g.    If the candidates voted for exceeded the number of those to be voted for, the ballot is valid.

h.     If it cannot be determined, considered as STRAY VOTE

& “Appreciation of ballots” is a function of the BEI, not of the Board of Canvassers (Sanchez v. COMELEC, 153 SCRA 67 [1987])”

& “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. Thus, the name of the candidate preceded by the words “Bo. Barangay” should be interpreted to mean “Po. (or Punong) Barangay”, and should be counted for the candidate. (Bautista v. Castro, 206 SCRA 305 [1992])”.

& The ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. The votes intended for the disqualified candidate should not be considered null and void, as it would amount to disenfranchising the electorate in whom sovereignty resides. (Albana, et al., v. COMELEC, G.R. No. 163302, July 23, 2004)

& There must be a final judgment before the election in order that the votes of a disqualified candidate can be considered “stray”, the obvious rationale behind the foregoing ruling is… the people voted for him bona fide, without any intention to misapply their franchise, and in the honest belief that the candidate was then qualified to be the person to whom they would entrust the exercise of the powers of government (Pablo Ocampo v. HRET, G.R. No. 158466.  June 15, 2004).

¤   CANVASS AND PROCLAMATION

CANVASSING BY THE BOARD OF CANVASSERS

Composition

a.     Provincial – A Provincial Election Supervisor or a Senior Lawyer in the Regional Office of COMELEC as Chairman, the Provincial Fiscal as Vice-Chairman and the Provincial Superintendent of Schools and one representative from each ruling party as members.

b.    City – the City Election Registrar or a Lawyer of COMELEC as Chairman, the City Fiscal and the City Superintendent of Schools and one representative from each ruling party and the dominant opposition political party as members.

c.     District – a Lawyer of COMELEC as Chairman and a Ranking Fiscal in the district and the most senior district School Supervisor to be appointed and one representative from each ruling party and the dominant opposition political party as members.

d.    Municipal – The Election Registrar or a representative of COMELEC as Chairman, the Municipal Treasurer and the District Supervisor or in his absence, any Public School Principal and one representative from each ruling party and the dominant opposition political party as members.

Powers & Duty of Board of Canvassers

a.     To meet immediately after the election and to count the votes cast for the candidate from the election returns submitted to it.

b.    It is empowered to accept as correct those returns which are in due form and to ascertain and declare the result as it appears therefrom.

c.     The Board of Canvassers is a ministerial body. Its powers are limited generally to the mechanical or mathematical function of ascertaining and declaring the apparent result of the election by adding or compiling the votes cast for each candidate and then declaring or certifying the result so ascertained.

d.    Prepares the Statement of Votes, which I.D. tabulation per precinct of the votes obtained by the candidates as reflected in the election returns.

§  It is the Statement of Votes which form the basis of the Certificate of Canvass and of proclamation.

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

&  By conducting such “unofficial” tabulation of the results of the election, the COMELEC descends to the level of a private organization, spending public funds for the purpose.  Besides, it is absurd for the COMELEC to conduct two kinds of electoral counts – a slow but “official” count, and an alleged quicker but “unofficial” count, the results of each may substantially differ. This not only violates the exclusive prerogative of NAMFREL to conduct an “unofficial” count, but also taints the integrity of the envelopes containing the election returns, as well as the returns themselves, by creating a gap in its chain of custody from the Board of Election Inspectors to the COMELEC. Thus, if the COMELEC is proscribed from conducting an official canvass of the votes cast for the President and Vice-President, the COMELEC is, with more reason, prohibited from making an “unofficial” canvass of said votes (Brillantes v. COMELEC, G.R. No. 163193, June 15, 2004).

Nature of Proceedings: Canvass of Proceedings is administrative and summary in nature.

§  A majority vote of all the members of the board shall be necessary to render decision (B.P. 881, Sec.225).

 

PROCLAMATION

§  Canvassing completed ONLY after the completion of the canvass, separate statements of all the votes received AND the proclamation of winners. After the proclamation, the existence of the Board is terminated.

§  Incomplete canvass of votes is illegal and cannot be made the basis of proclamation.

§  A canvas cannot be reflective of the true vote unless all returns are considered and none are omitted.

& 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 (Utto v. COMELEC G.R. No. 150111, January 31, 2002).

& No law provides for a reglementary period within which to file a petition for annulment of election if there is, as yet, no proclamation. (Loong v. COMELEC, 257 SCRA 1 [1996]).

COMELEC Jurisdiction

      EXCLUSIVE Jurisdiction on ALL pre-proclamation controversies

RECOUNT OF VOTES

Upon proper petition, the COMELEC may order the recount of votes in the specific precincts when the following requisites are present:

1.   Grounds for recount:

a.     Omission of the name of a candidate and/or his votes in the election returns which cannot be ascertained by any other means under Sec 234 of the OEC.

b.    All copies of the election returns are tampered with or falsified under Sec 235 of the OEC

c.     Material discrepancies in all of the election returns in the votes of a candidate in words and figures, under Sec 236.

2.  The election returns involved will affect the result of the election

3. The integrity of the ballot has been preserved.

§  A proceeding for recount is summary in character and merely consists in mathematical counting of the votes received by each candidate. It does not involve any appreciation of the ballots or the determination of their validity as required in an election contest.

¤   ELECTION OFFENSES

Prohibited Acts (BP 881 and RA 6646)

1.     Vote-buying or vote selling.

2.     Wagering of results.

Note: Any money or thing of value put up as a bet or wager shall be forfeited in favor of the Government.

3.     Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion.

4.     Appointment of new employees (except in case of urgent need, with notice given to the COMELEC within three days from the appointment), creation of new positions, promotion or giving salary increases 45 days before a regular election and 30 days before a special election EXCEPT when so authorized.

5.     Carrying of deadly weapons within a radius of 100 meters from the precincts.

Note: It is not necessary that the deadly weapon be seized from the accused while he was in the precinct or within a radius of 100 meters therefrom; it is enough that the accused carried a deadly weapon within the prohibited radius during any of the days and hours specified in the law. (Mappala v. Judge Nunez, A.M. No. RTJ-94-1208, Jan. 26, 1995).

6.     Transfer or detail of government officials/employees without COMELEC approval.

Note: To prove violation, two elements must concur:

a.     The fact of transfer or detail within the election period as fixed by COMELEC; and

b.    The transfer or detail was made without prior approval of the COMELEC in accordance with its implementing rules and regulations. (People v. Reyes, G.R. No. 115022, Aug. 14, 1995).

Note: The transfer or detail of government officer or employee will not be penalized if done to promote efficiency in the government service. (People v. Reyes, supra).

7.     Printing of official ballots and election returns by any printing establishment which is not under contract with the COMELEC.

8.     Any member of the BEI or BOC who tampers, increases, or decreases the votes received by a candidate in any election or any member of the board who refuses, after proper verification and hearing, to credit the correct votes or deduct such tampered votes.

9.     Refusal to issue to duly accredited watchers the certificate of voters.

10.  Violation of the rules regarding prohibited forms of election propaganda;

11.  Any chairman of the board of canvassers who fails to give notice of meetings to other members of the board, candidate or political party as required under Sec. 23 hereof.

12.  Any person declared a nuisance or disqualified candidate who continues to misrepresent himself out, as a candidate.

VOTE BUYING AND VOTE-SELLING

A.   Covered Acts

1. Give, offer or promise money or anything of value.
2. Making or offer to make any expenditure, directly or indirectly, or cause expenditure to be made to any person, association, corporation, entity or community.
3. Soliciting or receiving, directly or indirectly, any expenditure or promise of any office or employment, public or private.

B.   Purpose of Acts

1.     To induce any one or the public in general to vote for or against any candidate or withhold his vote in the election.

2.     To vote for or against any aspirant for the nomination or choice of a candidate in a convention or similar selection.

C. Under RA 6646 (Prosecution of Vote-Buying/Selling)

1. Presentation of a complaint supported by affidavits of complaining witnesses attesting to the offer or promise by or the voters acceptance of money or other consideration from the relatives, leaders or sympathizers of a candidate is sufficient basis for an investigation by the COMELEC, directly or through its duly authorized legal officers.

2.    Disputable presumption of conspiracy:  Proof that at least one 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, relatives, leaders and/or sympathizers for the purpose of promoting the election of such candidate.

3.    Disputable presumption of involvement:  Proof affects at least 20% of the precincts of the municipality, city or province to which the public office aspired for by the favored candidate relate. This will constitute a disputable presumption of the involvement of such candidate and of his principal campaign managers in each of the municipalities concerned in the conspiracy.

COERCION OF A SUBORDINATE

A.   Who are liable?

1. Public officer
2. Officer of a public/private corporation/association
3. Heads/superior/administrator of any religious organization
4. Employer/landowner

B.  Prohibited Acts

1.   Coercing, intimidating or compelling or influencing, in any manner, any subordinates, members, parishioners or employees or house helpers, tenants, overseers, farm helpers, tillers or lease holders to aid, campaign or vote for or against a candidate or aspirant for the nomination or selection of candidates.

2.    Dismissing or threatening to dismiss, punishing or threatening to punish by reducing salary, wage or compensation or by demotion, transfer, suspension etc.  

    

APPOINTMENT OF NEW EMPLOYEES, CREATION OF NEW POSITION, PROMOTION OR GIVING SALARY INCREASES

A.   Who are liable?

Any head/official/appointing officer of a government office, agency or instrumentality, whether national or local, including GOCCs.

B.   Prohibited Acts:

1.     Appointing or hiring a new employee (provisional, temporary or casual);

2.     Creating or filling any new position;

3.     Promoting/giving an increase in salary, remuneration or privilege to any government official or employee. 

C.   Period when Acts are Prohibited

1.     45 days before a regular election

2.     30 days before a special election

D.   Exceptions

1.     Upon prior authority of COMELEC if it is satisfied that the position to be filled is essential to the proper functioning of the office/agency concerned and that the position is not filled in a manner that may influence the election.

2.     In case of urgent need, a new employee may be appointed. Notice of appointment should be given to COMELEC within 3 days from appointment.

PROHIBITION AGAINST RELEASE, DISBURSEMENT OR EXPENDITURE OF PUBLIC FUNDS

A.   Who can be held liable?

      Any public official or employee including barangay officials and those of GOCCs/subsidiaries.

          

B.  Prohibited Acts

      The release, disbursement or expenditure of public funds for any and other kinds of public works.

C.   Period when Acts are Prohibited

1.     45 days before a regular election

2.     30 days before a special election

D.   Exceptions

1.     Maintenance of existing/completed public works project.

2.     Work undertaken by contract through public bidding or by negotiated contract awarded before the 45 day period before election.

3.     Payment for the usual cooperation for working drawings, specifications and other procedures preparatory to actual construction including the purchase of material and equipment and incidental expenses for wages.

4.     Emergency work necessitated by the occurrence of a public calamity but such work shall be limited to the restoration of the damaged facility.

5.     Ongoing public work projects commenced before the campaign period or similar projects under foreign agreements.

SUSPENSION OF ELECTIVE, PROVINCIAL, CITY, MUNICIPAL OR BARANGAY OFFICER

General Rule: Public official CANNOT suspend any of the officers enumerated above during the election period.

Exceptions:

1.     With prior approval of COMELEC.

2.     Suspension is for the purpose of applying the Anti-Graft and Corrupt Practices Act.

a.     Violations In relation to registration of voters/voting

§  Unjustifiable refusal to register and vote.

§  Voting more than once in the same election/voting when not a registered voter.

§  Voting in substitution for another with or without the latter’s knowledge and/or consent etc.

b.    Other Election Offenses under RA 6646

1.     Causing the printing of official ballots and election returns by printing establishments not on contract with COMELEC and printing establishments which undertake unauthorized printing.

2.     Tampering, increasing or decreasing the votes received by a candidate or refusing after proper verification and hearing to credit the correct votes or deduct the tampered votes (committed by a member of the board of election inspectors)

3.     Refusing to issue the certificate of voters to the duly accredited watchers (committed by a member of the BEI).

4.     Person who violated provisions against prohibited forms of election propaganda.

5.     Failure to give notice of meetings to other members of the board, candidate or political party (committed by the Chairman of the board of canvassers).

6.     A person who has been declared a nuisance candidate or is otherwise disqualified who continues to misrepresent himself as a candidate (Ex. by continuing to campaign) and any public officer or private individual who knowingly induces or abets such misrepresentation by commission or omission.

7.     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). 

JURISDICTION OVER ELECTION OFFENSES

§  The COMELEC has exclusive jurisdiction to investigate and prosecute cases involving violations of election laws, but it may validly delegate the power to the Provincial Prosecutor as it did when it promulgated Resolution No. 1862, dated March 2, 1987.

& The RTC has exclusive original jurisdiction to try and decide any criminal actions or proceedings for violation of election laws. The metropolitan or municipal trial courts, by way of exception, exercises jurisdiction only over offenses as a matter of exception to the general provisions on jurisdiction over criminal cases found under B.P. 129 as amended (Naldoza v. Lavilles, 254 SCRA 286 [1996]).

Preferential disposition of election offenses The COMELEC shall investigate without delay election offenses and resolve them within 5 days from submission. The courts shall likewise give preference to these offenses over all other cases EXCEPT petitions for writ of habeas corpus.

Prescriptive Period for Election Offenses

§  5 years from date of commission.

§  If the discovery of the offense is made in an election contest proceeding, the period of prescription commences on the date on which judgment becomes final and executory.

GENERAL POWERS OF THE COMELEC

1.     Executive – enforcement and administration of election laws.

2.     Legislative – issuance of rules and regulations to implement the election laws and other legislative functions as may be expressly delegated by Congress.

& A draft resolution does not operate as a final resolution of a case until the proper resolution is duly signed and promulgated (Calingin v. Court of Appeals, Et. Al., G.R. No. 154616, July 12, 2004).

3.     Judicial – resolution of controversies that may arise in the enforcement of election laws and to be the sole judge of all pre-proclamation disputes and contests relating to the elections, returns and qualifications of all regional, provincial and city officials.

Failure of election:

Instances:

1. The election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes;
2. The 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;
3. After the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in failure to elect on account of force majeure, violence, terrorism, fraud, or other analogous causes.

There are only three (3) instances where a failure of election may be declared, namely: (a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes; (b) the 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; (c) 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 an account of force majeure, violence, terrorism, fraud, or other analogous
causes. In all instances there must have been failure to elect; this is obvious in the first scenario where the election was not held and the second where the election was suspended. As to the third scenario, the preparation and transmission of the election returns which give rise to the consequence of failure to elect must as aforesaid be literally interpreted to mean that nobody emerged as a winner.(Typoco, Jr. vs. COMELECen banc; 

G.R. No. 136191 November 29, 1999)

Who has the power to declare?

The COMELEC en banc has the original and exclusive jurisdiction to hear and decide petitions for declaration of failure of election or for annulment of election results (Sec.4, R.A. 7166).

& The proclamation of the winning candidate does not divest the COMELEC of such jurisdiction, where the proclamation is null and void or is claimed to be so. (Ampatuan v. COMELEC, G.R. No. 149803, Jan. 31, 2002).

What are the conditions before COMELEC can act on the petition?

1. No voting took place in the precinct/s on the date fixed by law, or even if there was voting, the election resulted in failure to elect; AND
2. The votes not cast would have affected the result of the election.(Tan v. COMELEC, G.R. No. 148575-76, Dec. 10, 2003). 

&  The cause of such failure may arise before or after the casting of votes or on the day of the election. (Batabor v. Commission on Elections, et al., G.R. No. 160428, July 21, 2004)

COMELEC Rules of Procedure

Where the COMELEC, in division, allegedly committed grave abuse of discretion or acted without or in excess of jurisdiction in issuing an interlocutory order, Sec. 5(c), Rule 3 of the 1993 COMELEC Rules of Procedure applies.

&  Only final orders of the COMELEC in Division may be raised before the COMELEC en banc. Sec. 3, Art. IX-C of the 1987 Constitution mandates that only motions for reconsideration of final decisions shall be decided by the COMELEC en banc. Under this constitutional provision, the COMELEC en banc shall decide motion for reconsideration only of “decisions” of a Division, meaning those acts having a final character. Clearly, the assailed status quo ante Order, being interlocutory, should first be resolved by the COMELEC First Division via a motion for reconsideration (Repol v. COMELEC, et al., G.R. No. 161418, April 28, 2004).

&  The provision of the Constitution is clear that it should be the majority vote of all the members of the COMELEC en banc and not only those who participated and took part in the deliberations. Under the rules of statutory construction, it is to be assumed that the words in which constitutional provisions are couched express the objective sought to be attained. (Estrella v. Commission on Elections, et al., G.R. No. 160465, May 27, 2004)

POSTPONEMENT of election

      An election may be postponed motu propio or upon verified petition by any interested party when there is violence, terrorism, loss or destruction of election paraphernalia or records, force majeure or other analogous causes 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)

&  (we) clarified that, "Under the pertinent codal provision of the Omnibus Election Code, there are only three (3) instances where a failure of elections may be declared, namely: (a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes; (b) the 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; or (c) 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." (Sison v. COMELEC, G.R. No. 134096,  March 3, 1999)