2012 REVIEWER IN ELECTION LAW

By: Atty. Enrique V. dela Cruz, Jr.

GENERAL PRINCIPLES

 What is the right of Suffrage?

ANSWER: It is the right to vote in the election of officers chosen by the people and in determination of questions submitted to the people. It includes: Election Plebiscite Initiative and Referendum

 Who may vote? Filipino citizenship At least 18 years of age Resident of the Philippines for at least one year Resident of the place where he proposes to vote for at least 6 months; and Not otherwise disqualified by law

 Is registration a qualification to vote? No. It is but a condition precedent to the exercise of the right. The act of registration is an indispensable precondition to the right of suffrage. For registration is part and parcel of the right to vote and an indispensable element in the election process. Registration is a regulation, not a qualification. (Akbayan Youth vs. COMELEC, G.R. No. 147066, 26 March 2001)

 Is failure to sign an application for registration a valid ground to cancel a voters registration? YES. Failure to affix his signature to the application for registration will necessarily invalidate his application for registration. Section 10 of RA 8189, explicitly provides: x x x To register as a voter, he shall personally accomplish an application form for registration x x x in three (3) copies x x x The application for registration shall contain three (3) specimen signatures of the applicant x x x . Gunsis application for registration did not comply with the minimum requirements of RA No. 8189. This leads to only one conclusion: that Gunsi, not having demonstrated that he duly accomplished an application for registration, is not a registered voter. Gunsi v. COMELEC, G.R. No. 168792, 23 February 2009

 Who are disqualified from voting?

Persons convicted by final judgment to suffer imprisonment for not less than 1 year, pardoned or granted amnesty; but right is reacquired after expiration of 5 years after service of sentence; Person adjudged by final judgment as having committed any crime against national security; but right is reacquired upon expiration of 5 years after service of sentence; and Insane or incompetent persons as declared by competent authority (Sec. 118, OEC)

 May the conduct of exit polls transgress the sanctity and the secrecy of the ballot? NO. In exit polls, the contents of the official ballot are
not actually exposed. Furthermore, the revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may also choose not to reveal their identities. Indeed, narrowly tailored countermeasures may be prescribed by the Comelec, so as to minimize or suppress incidental problems in the conduct of exit polls, without transgressing the fundamental rights of our people. (ABS-CBN Broadcasting Corporation v. COMELEC, G.R. No. 133486, Jan. 28, 2000)

 Who are not qualified to vote?

Those convicted by final judgment to suffer imprisonment for not less than one (1) year; unless pardoned or granted amnesty. Those convicted by final judgment of crimes involving disloyalty to government or against national security.
Note: Right to vote is only reacquired upon the expiration of five (5) years after service of sentence.

Those who are insane or incompetent persons as declared by competent authority.

 Q: What is absentee voting? A: It 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).

 Who are qualified to vote under the Absentee Voting Act? ANSWER: All citizens of the

Philippines residing abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on the day of the elections, may vote for president, vice-president, senators and party-list representatives. (Sec. 4, RA 9189)

 Is an immigrant or permanent resident abroad qualified to vote under the Absentee Voting Act?
GR: An immigrant or permanent resident may vote if 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. (Section 5-d, RA 9189)

 Q: Is Section 5-D of RA 9189 Constitutional?

A: Yes. Congress enacted the law prescribing a system of overseas absentee voting in compliance with the constitutional mandate. Such mandate expressly requires that Congress provide a system of absentee voting that necessarily presupposes that the "qualified citizen of the Philippines abroad" is not physically present in the country. He is presumed not to have lost his domicile by his physical absence from this country. His having become an immigrant or permanent resident of his host country does not necessarily imply an abandonment of his intention to return to his domicile of origin, the Philippines. (Macalintal v. Romulo, G.R. No. 157013, July 10, 2003)

 Who are NOT qualified to vote under the Absentee Voting Act? Those who have lost their Filipino citizenship laws; Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country; Those convicted of an offense punishable by imprisonment of not less than one (1) year, including those found guilty of Disloyalty as defined under Art. 137 of the Revised Penal Code.

 Is an immigrant or permanent resident abroad qualified to vote under the Absentee Voting Act?
GR: An immigrant or permanent resident may vote if 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.

 May an immigrant or permanent resident (green card holder) ABROAD be qualified to run for an elective position in the Philippines? ANSWER: NO. Acquisition of a lawful

permanent resident status abroad amounts to an abandonment and renunciation of one s status as a resident of the Philippines; it constituted a change from ones domicile of origin to a new domicile of choice. (Ugdoracion v.
COMELEC, 18 April 2008 Nachura ponente)

PARTY-LIST

What groups are disqualified for registration under the party-list system?

1. Religious denominations or sects. 2. Those who seek to achieve their goals through violence or unlawful means. 3. Those who refuse to uphold and adhere to the Constitution; and 4. T h o s e s u p p o r t e d b y f o r e i g n governments

What are the grounds for the cancellation of registration?

1. Accepting financial contributions from foreign governments or agencies; and 2. Failure to obtain at least 10% of the votes casts in the constituency where the party fielded candidates.

Can major political parties participate in the party-list elections?

No. It is not open to all but only to the marginalized and the under represented. Allowing all individuals and groups, including those which now dominate district elections, to have the same opportunity to participate in the party-list elections would desecrate this lofty objective and mongrelize the social justice mechanism into an atrocious veneer for traditional politics. (Ang Bagong Bayani-OFW Labor Party v. COMELEC, G.R. No. 147589, Jun. 26, 2001)

CAN THE LGBT COMMUNITY FORM A PARTY LIST? Yes. Not only those sectors specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals) may be registered under the party-list system. The enumeration in the law of marginalized and underrepresented sectors is not exclusive. Morality is not a criterion. The Courts role is not to impose its own view of acceptable behavior. Rather, it is to apply the Constitution and laws as best as it can, uninfluenced by public opinion, and confident in the knowledge that our democracy is resilient enough to withstand vigorous debate. Ang Ladlad LGBT Party v. COMELEC, G.R. No. 190582, Apr. 8, 2010

What is a political party? It is an organized group of citizens advocating ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates and supports certain of its leaders and members as candidate in public office (Bayan Muna v. COMELEC, G.R. No. 147612, Jun. 28, 2001)

RULES ON DISTRICT RE-APPORTIONMENT

Elected from legislative districts which are apportioned in accordance with the number of inhabitants of each area and on the basis of a uniform and progressive ratio; Uniform Every representative of Congress shall represent a territorial unit with more or less 250,000 population. All the other representatives shall have the same or nearly the same political constituency so much so that their votes will constitute the popular majority. Each city with a population of at least 250,000 or each province shall at least have one representative. Legislative districts shall be re-apportioned by Congress within 3 years after the return of each census.

 Q: What is gerrymandering? Is it allowed? A: Formation of one legislative district out of separate territories for the purpose of favoring a candidate or a party. Gerrymandering is not allowed

Guidelines for screening party-list participants The political party, sector, organization or coalition must represent the marginalized and the underrepresented groups identified in Sec. 5 of RA 7941. Majority of its membership should belong to the marginalized and underrepresented; While even major political parties are allowed by RA 7941 and the Constitution, they must comply with the declared statutory policy of Filipino citizens belonging to the 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;

Guidelines for screening party-list participants Religious sector may not be represented in the party-list system; except that priests, imams or pastors may be elected should they represent not their religious sects but the indigenous community sector; A party or an organization must not fall under the disqualifications provided for under Sec. 6 of RA 7941 The party or organization must not be an adjunct of, or a project organized or an entity funded or assisted by the government; The party, including its nominees must comply with the qualification requirements of Sec. 9, RA 7941

Is it necessary for a party-list nominee to actually belong to the marginalized sector that he seeks to represent?
Yes. The law requires that the nominees must belong to the sector that they represent. A representative of the senior citizen must be a senior citizen; the youth sector must be represented by a nominee who is not more than 30 years old on election day. Since the party list represent the marginalized and underrepresented sectors, so also must the nominees belong to the marginalized and underrepresented sectors. (Ang Bagong Bayani-OFW Labor Party v. COMELEC, G.R. No. 147589, Jun. 26, 2001)

 Q: In the party-list elections, who are elected into office? A: It is the party-list representatives who are elected into office, not their parties or organizations. Thus, the age qualification pertains to them as a person
(Amores v. Joel Villanueva CIBAC, G.R. No. 189600, 29 June 2010)

These representatives are elected, however, through that peculiar party-list system that the Constitution authorized and that Congress by law established where the voters cast their votes for the organizations or parties to which such party-list representatives belong. (Abayon v. HRET, G.R. No. 189466, Feb. 11, 2010)

 Q: Should the names of nominees be published? YES. There is absolutely nothing in R.A. 7941 that prohibits COMELEC from disclosing or even publishing through mediums other than the Certified List the names of the party-list nominees. As may be noted, the candidates qualifications are a matter of public concern. The disclosure of their names is, therefore, mandated by law (Bantay RA 7941 v. COMELEC, G.R. No. 177271; G.R. No. 177314, May 4, 2007)

 Q: What is the formula mandated by the Constitution in determining the number of party-list representatives? A: The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law. (Section 5 (1), Article VI of the 1987 Constitution). The number of seats available to party-list representatives is based on the ratio of party-list representatives to the total number of representatives.

Number of seats available to legislative districts

-------------------------------.80

.20

= Number of seats available to party-list representatives

This formula allows for the corresponding increase in the number of seats available for party-list representatives whenever a legislative district is created by law. After prescribing the ratio of the number of party-list representatives to the total number of representatives, the Constitution left the manner of allocating the seats available to party-list representatives to the wisdom of the legislature. (Barangay Association for National Advancement and Transparency (BANAT v. COMELEC, G.R. No. 179271, Apr. 21, 2009)

FOUR INVIOLABLE PARAMETERS TO DETERMINE WINNERS IN THE PARTY-LIST ELECTIONS:

(1) 20% allocation. The Party-List representatives shall constitute 20% of total number of the members of the House including those under the Party-List; (2) 2% threshold. Only those parties garnering a minimum of 2% of the total valid votes cast for the Party-List system are qualified to have a seat in the House of Representatives;

3. Three-seat limit. Each qualified party, regardless of the number of votes it actually obtained, provided that it has secured more than 2% of the total valid votes cast for party list system, is entitled only to a maximum of 3 seats; and 4. Proportional representation. The additional seats which a qualified party is entitled to shall be computed in proportion to their total number of votes
(Veterans Federation Party v. Comelec, G.R. No.136781, October 6, 2000).

How do we determine the number of seats in the House of Representative allotted for party list representatives?

BANAT V. COMELEC (2009)

Party-list representatives constitute 20% of the total number of members of the House of Representative. (Total number means inclusive of those under the party-list). From there, the following formula is derived: According to the BANAT Case, there are 55 party-list seats available. THIS MUST BE FILLED-UP.

 BANAT V. COMELEC (2009) Parties receiving at least 2% of the total votes cast for the party-list system shall be entitled to one seat each (one seat for every 2%); No party shall be entitled to more than 3 seats; The remaining parties (with less than 2%) will be ranked according to their total votes garnered and will be entitled to a seat each until the vacant party-list seats are all filledup.

INCLUSION & EXCLUSION

 Q: Which court has jurisdiction over inclusion and exclusion proceedings? A: MTC - original and exclusive RTC - appellate jurisdiction SC - appellate jurisdiction over RTC on question of law

PETITION FOR INCLUSION Any person whose application for registration has been disapproved by the Board or whose name has been stricken out from the list may file with the court a petition to include his name in the permanent list of voters in his precinct at any time EXCEPT 105 days prior to a regular election or 75 days prior to a special election. The petition shall be decided within 15 days after its filing. (Sec. 34, RA 8189)

PETITION FOR EXCLUSION Any registered voter, representative of a political party or the Election Officer, may file with the court 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 at any time EXCEPT 100 days prior to a regular election or 65 days prior to a special election. The petition shall be decided within 10 days from its filing. (Sec. 35, RA 8189)

 Q: Who may file a petition in an inclusion or exclusion proceedings? A: Inclusion Any private person whose application was disapproved by the Election Registration Board or whose name was stricken out from the list of voters COMELEC Exclusion Any registered voter in the city or municipality Representative of political party Election officer COMELEC (BP 881 Omnibus Election Code)

 Q: Do decisions in an inclusion or exclusion proceedings acquire the nature of res judicata? A: No. The proceedings for the exclusion or inclusion of voters in the list of voters are summary in character. Except for the right to remain in the list of voters or for being excluded therefrom for the particular election in relation to which the proceedings had been held, a decision in an exclusion or inclusion proceeding, even if final and unappealable, does not acquire the nature of res judicata. In this sense, it does not operate as a bar to any further action that a party may take concerning the subject passed upon in the proceeding. Thus, a decision in an exclusion proceeding would neither be conclusive on the voters political status, nor bar subsequent proceedings on his right to be registered as a voter in any other election. (Domino vs. COMELEC, G.R. No. 134015, July 19, 1999)

 Q: Can a voter be excluded for stating a fake address? A: NO. The right to vote is a most precious political right, as well as a bounden duty of every citizen, enabling and requiring him to participate in the process of government to ensure that it can truly be said to derive its power solely from the consent of its constituents. A citizen cannot be disenfranchised for the flimsiest of reasons. Only on the most serious grounds, and upon clear and convincing proof, may a citizen be deemed to have forfeited this precious heritage of freedom. (Asistio v. Aguirre, G.R. No. 191124, April 27,
2010)

 Q: Can a voter be excluded for stating a fake address?

A: That Asistio allegedly indicated in his Certificate of Candidacy for Mayor, both for the 2007 and 2010 elections, a non-existent or false address, or that he could not be physically found in the address he indicated when he registered as a voter, should not operate to exclude him as a voter of Caloocan City. These purported misrepresentations in Asistios COC might serve as basis for an election offense under the Omnibus Election Code (OEC), or an action to deny due course to the COC. They do not serve as proof that Asistio has abandoned his domicile in Caloocan City, or that he has established residence outside of Caloocan City. (Asistio v. Aguirre, G.R. No. 191124, April 27, 2010)

 Q: What is the effect of transfer of residence? A: Any person, who transfers residence solely by reason of his occupation, profession or employment in private or public service, education, etc., shall not be deemed to have lost his original residence. (Asistio v. Aguirre, G.R. No. 191124, April 27, 2010)

EFFECTS OF FILING A CERTIFICATE OF CANDIDACY

Q. CAN YOU FILE 2 CERTIFICATES OF CANDIDACY? A: Filing of two (2) certificates of candidacy, disqualifies the person to run for both elective positions. Q: Can you withdraw the CoC? A: Yes. A person who has filed a CoC may, prior to the election, withdraw the same by submitting to the office concerned (COMELEC) a written declaration under oath. (Sec. 73, Omnibus Election Code)

Q: What is the effect of filing a certificate of candidacy on the tenure of incumbent government officials? A:

Appointive official Sec. 66 of the OEC provides that any person holding an appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in GOCCs, shall be RESIGNED from his office upon the start of the campaign period. (Quinto v. COMELEC, Feb. 22, 2010, G.R. 189698) Elective official No effect. The candidate shall continue to hold office, whether he is running for the same or a different position. (Sec. 14, Fair Elections Act expressly repealed Sec. 67 of BP 881)

Q: What is the duty of the COMELEC in receiving CoCs? GR: When a candidate files his COC, the COMELEC has a ministerial duty to receive and acknowledge its receipt pursuant to Section 76, of the Election Code. The COMELEC may not, by itself, without the proper proceedings, deny due course to or cancel a COC filed in due form. (Luna vs. COMELEC, G.R. No. 165983, April 24, 2007) XPN: (i) Nuisance candidatesSec. 69 of the OEC; (ii) Petition to deny due course or to cancel a COCSec. 78 of the OEC; (iii) Filing of a disqualification case on any of the grounds enumerated in Section 68, OEC.

Q: When can a person be considered a candidate? A: A 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. 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 ones possible violations of election laws, only during the campaign period. (Penera v. COMELEC, G.R. No. 181613, Nov. 25, 2009)

SAMPLE TEST QUESTION: The Vice Mayor of a municipality filed his certificate of candidacy for the same office in the last elections. The Municipal Mayor was also running for re-election. Both were official candidates of the same political party. After the last day for the filing of certificates of candidacy, the Mayor died. Under these facts 1. Can the Vice Mayor succeed to the office of the deceased Mayor pursuant to the provisions of the Local Government Code? Explain.

2. Assuming that the Vice-Mayor succeeds to the position of Mayor after the incumbent died, which position is now different from the one for which he has filed his certificate of candidacy, can he still continue to run as Vice-Mayor? Explain. 3. Is there any legal impediment to the Vice Mayor to substitute for the re-electionist Mayor who died? Explain.

Suggested Answer:

1. Yes, the vice mayor can succeed to the office of mayor. Under Section 44 of the Local Government Code, he stands next in line to the office of mayor in case of a permanent vacancy in it. His filing of a Certificate of Candidacy for Mayor did not automatically result to his being considered resigned (Sec. 67, Omnibus Election Code).

2. Assuming that the Vice-Mayor succeeds to the position of Mayor after the incumbent died, can he still continue to run as ViceMayor? Explain. Yes, the vice mayor can continue to run as vice mayor. At the time that he filed his certificate of candidacy, the vice mayor ran for the same office he was holding. The mere filing of a certificate of candidacy of an incumbent elective official does not result to his automatic resignation.

3. Can the Vice Mayor substitute for the re-electionist Mayor who died? Explain. YES. Under Section 77 of the Omnibus Election code, if a candidate dies after the last day for filing certificates of candidacy, he may be replaced by a person belonging to his political party. However, it is required that he should first withdraw his Certificate of Candidacy for Vice-Mayor and file a new Certificate of Candidacy for Mayor.

SAMPLE QUESTION On 01 December 2009, A City Legal Officer, and B, a City Vice-Mayor, filed certificates of candidacy for the position of City Mayor in the May 11, 2010 elections. a. Was A ipso facto considered resigned and, if so, effective on what date? b. Was B ipso facto considered resigned and, if so, effective on what date? In both cases, state the reason or reasons for your answer.

Suggested Answer: a. No. A was not considered ipso facto resigned upon the filing of his certificate of candidacy even if he is an appointive official. Because it is not yet the start of the campaign period. (Quinto v. COMELEC, 12/09) Section 66 of the Omnibus Election Code was amended by the Automated Elections Law.

b. B, on the other hand, is not also considered ipso facto resigned. Under the Fair Elections Act, an incumbent elective official is NOT CONSIDERED IPSO FACTO RESIGNED upon his filing of a certificate of candidacy for any elective office.

SAMPLE QUESTION

a. Pedro Reyes is an incumbent ViceMayor of Quezon City. He intends to run in the regular elections for the position of City Mayor of Quezon City whose incumbent mayor would have fully served three consecutive terms by 2004. Would Pedro Reyes have to give up his position as Vice-Mayor?

SHOULD HE RESIGN AS VICE-MAYOR? 1. Once he files his certificate of candidacy; 2. When the campaign period starts; or 5. Once and if he is proclaimed winner in the election; or 6. Upon his assumption to the new elective office;

ANSWER: None of the above. Pedro Reyes can run for Mayor without giving up his position as Vice-Mayor. He will have to give up his position as Vice-Mayor upon expiration of his term as Vice-Mayor on June 30, 2004.

SUBSTITUTION OF CANDIDATES? 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 causea 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. - Substitute must belong to the same party.

Q: What are the requisites for valid substitution? GR: The substitute must belong to the same party The deceased, disqualified or withdrawn candidate must have duly file a valid certificate of candidacy. (Ibid.) 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. (Ong v. Alegre & COMELEC, G.R. No. 163295, January 23, 2006)

Q: On the last day of filing a CoC, March 31, Jose Monsale withdrew his CoC. April 1, campaign period started. On April 2, he wanted to run again so he filed a written declaration withdrawing his withdrawal. Is his act of withdrawing the withdrawal valid? A: No. The withdrawal of the withdrawal of the CoC made after the last day of filing is considered as filing of a new CoC. Hence, it was not allowed since it was filed out of time. (Monsale v. Nico, G.R. No. L-2539, May 28, 1949)

May a disqualified candidate be substituted? Q: In the 1998 election, Mayor Miranda already served 8 consecutive terms, yet he still filed a CoC. As a result, Abaya filed a disqualification case. COMELEC then disqualified Miranda and cancelled his CoC. The son of Miranda, Joel, upon nomination of their political party, filed a certificate of substitute. Joel Miranda won. Was the substitution valid?

May a disqualified candidate be substituted? A: There was no valid substitution. COMELEC did not only disqualify Miranda but also cancelled his CoC. Therefore, he cannot be validly substituted. A disqualified candidate may only be substituted if he had a valid CoC because if the disqualified candidate did not have a valid and seasonably filed CoC, he is and was not a candidate at all. (Miranda v. Abaya, G.R. No. 136351, July 28, 1999)

Q: Since there was no valid substitution, should the candidate who obtained the second highest vote be proclaimed? Who will then assume the position of mayorship? A: No. Under the doctrine on the rejection of second placer, the second placer is just like thatsecond placer. He was not the choice of the electorate. The wreath of victory cannot be transferred to the repudiated loser. Following the rule on succession, it is the Vice-Mayor who will assume the position of mayor. (Cayat v. COMELEC, G.R. No. 163776, Apr. 24, 2010)

Q: Martin de Guzman died while campaigning. His son substituted him. Voters on the day of the election wrote Martin de Guzman instead of casting the same in the name of his son, Joel de Guzman. Should the votes be counted in favor of Joel? A: Yes. As a general rule, the same will be considered as stray votes but will not invalidate the whole ballot. Exception is when the substitute carries the same family name. (Sec. 12, R.A 9006)

Q: May a second placer be declared elected? GR: No. XPN: If the one who obtained the highest number of votes is disqualified and The electorate is fully aware in fact and in law of the candidates 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)

PRE-ELECTION DISPUTES

What is a petition for disqualification?

It 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. Note: A petition for disqualification must be filed any day after the last day for filing of certificates of candidacy BUT not later than the date of proclamation. The petition is heard summarily. However, the COMELEC cannot disqualify a candidate without hearing and affording him opportunity to adduce evidence to support his side and taking into account such evidence

What are the effects of disqualification?

Any candidate who has been declared by final judgment to be disqualified shall not be voted for. The votes cast in his favor shall not be counted. If the candidate is not disqualified by final judgment before the election and receives the highest number of votes in the election, the court or COMELEC will continue with the trial and hearing of the action, inquiry or protest. Upon motion of the complainant or intervenor, the court or COMELEC may order the suspension of the proclamation of the candidate whenever the evidence of guilt is strong.

Petition to Declare a Nuisance Candidate

1. The COC has been filed to put the election process in mockery or disrepute; 2. The COC has been filed to cause confusion among the voters; 3. That the filing of the COC clearly demonstrates that the candidate has no bona fide intention to run for office. Note: The petition may be filed within five (5) days after the last day of filing of COCs.

Petition to Cancel Certificate of Candidacy A petition to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained in certificate of candidacy as required by law is false. The petition should be filed not later than 25 days from the filing of the certificate of candidacy. It should be decided not later than 15 days before the election, after due notice and hearing.

Q: What are the requisites for the grant of a petition to deny due course to or cancel a certificate of candidacy? A:Material misrepresentation in the qualifications for elective office, which includes age, residency, citizenship, and any other legal qualifications necessary to run for an elective office; Deliberate attempt to mislead, misinform or hide a fact which would otherwise render a candidate ineligible. Note: These two requirements must concur to warrant the cancellation of the certificate of candidacy.

Material Misrepresentation Material misrepresentation in a COC refers to the qualification for elective office, which includes false statement as to age, residency, citizenship, being a registered voter and any other legal qualifications necessary to run for an elective office. Note: A misrepresentation which does not affect ones qualification to run or hold public office will not suffice for the cancellation of a COC.

Material Misrepresentation Actor Daniel Fernando used his screen name in his certificate of candidacy, instead of his real name Cezar Ramirez. A petition to cancel his COC was filed on the ground of material misrepresentation. Will the suit prosper? Note: The COMELEC en banc dismissed the petition ruling that a misrepresentation which does not affect ones qualification to run or hold public office will not suffice for the cancellation of a COC.

May the COMELEC matu proprio deny or cancel a certificate candidacy? NO. The Commission may not, by itself, without the proper proceedings, deny due course to or cancel a certificate of candidacy filed in due form. When a candidate files his certificate of candidacy, the COMELEC has a ministerial duty to receive and acknowledge its receipt (Sec. 76 of the OEC). While the Commission may look into patent defects in the certificates, it may not go into matters not appearing on their face. The question of eligibility or ineligibility of a candidate is thus beyond its usual motu propio powers. Nonetheless, Section 78 of the Omnibus Election Code allows any person to file before the COMELEC a petition to deny due course to or cancel a certificate of candidacy on the ground that any material representation therein is false. Cipriano v. COMELEC, G.R. No. 158830 (August 10, 2004)

QUESTION: Q. Penera and Andanar ran for mayor of Sta. Monica, Surigao Del Norte during the May 14, 2007 elections. Peneras political party held a motorcade preceding the filing of her certificate of candidacy announcing her candidacy for mayor. Because of this, Andanar filed a petition to disqualify Penera for engaging in premature campaigning in violation of Sec.80 and 68 of the Omnibus Election Code. Does the act of campaigning for votes immediately preceding the filing of certificate of candidacy violate the prohibition against premature campaigning?

ANSWER:
A. The campaign period for local officials begin on 30 March 2007 and ends on 12 May 2007. Penera filed her certificate of candidacy on 29 March 2007. Penera was thus a candidate on 29 March 2009 only for purposes of printing the ballots under Sec.11 of R.A. 8436. Penera became a candidate only at the start of the campaign period on 30 March 2007. Thus, all her actions prior to the start of the campaign period are not punishable under Section 80 of the Omnibus Election Code. Such acts are within the realm of a citizens protected freedom of expression. In laymans language, this means that a candidate is liable for an election offense only for acts done during the campaign period, not before. 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)

Q: What are pre-proclamation controversies? A: They refer to any question pertaining to or affecting the proceedings of the board of canvassers, and the preparation, transmission, receipt, custody and appreciation of election returns which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the COMELEC. (Sec. 241, B.P. 881 Omnibus Election Code) Note: The purpose of this kind of controversy is to ascertain winners in the elections on basis of election returns duly authenticated by board of inspectors and admitted by the board of canvassers. (Abella v. Larrazabal, G.R. No. 87721-30, December 21, 1989)

Q: Are pre-proclamation controversies allowed under the new Automated Elections Law? A: GR: For purpose of the elections for president, vice president, senator, and member of the House of Representatives, no pre-proclamation cases shall be allowed on matters relating to the preparation, transmission, receipt, custody and appreciation of election returns or the certificates of canvass, as the case may be. (Sec. 38, R.A. No. 9369) XPNS: (i) Illegal composition of the Board of Canvassers (BOC); (ii) Illegal proceedings of the BOC. (Sec. 1, Rule 3, COMELEC Resolution No. 8804, March 22, 2010)

Q: Are there pre-proclamation cases in elections for President, Vice-president and Members of the House of Representatives on matters relating to the preparation, transmission, receipt, custody, and appreciation of the election returns or the certificates of canvass? A: GR: No (Sec. 15, Synchronized Election Law). No pre-proclamation cases are allowed in case of barangay election. (Sec. 9, R.A. No. 6679)

EXCEPTIONS:

Correction of manifest errors (ii) Questions affecting the composition or proceedings of the board of canvassers and (iii) Determination of the authenticity and due execution of certificates of canvass as provided in Sec. 30 of R.A. 7166, as amended by R.A. 9369.
(i)

POST ELECTION REMEDIES

BAR QUESTION 1996 (Q14) 1. As counsel for the protestant, where will you file an election protest involving a contested elective position in: a. the barangay? b. the municipality? c. the province? d. the city? e. the House of Representatives?

Suggested Answer: 1. In accordance with Section 2(2), Article IX-C of the Constitution an election protest involving the elective position enumerated below should be filed in the following courts or tribunals: a. Barangay - Metropolitan Trial Court, Municipal Circuit Trial Court, or Municipal Trial Court b. Municipality - Regional Trial Court c. Province - COMELEC d. City - COMELEC e. Under Section 17. Article VI of the Constitution, an election protest involving the position of Member of the House of Representatives shall be filed in the House of Representatives Electoral Tribunal.

ELECTION CONTESTS An election protest is initiated by filing a protest containing the following allegations: a. The protestant is a candidate who duly filed a certificate of candidacy and was voted for in the election: The protestee has been proclaimed; The date of the proclamation, (Miro vs. COMELEC, 121 SCRA 466)

b. c.

The following have jurisdiction over election contests: a. b. c. d. e. f. Barangay officials - Inferior Court; Municipal officials -Regional Trial Court; Regional, provincial, and city officials COMELEC Congressman -House of Representatives Electoral Tribunal. Senators - Senate Electoral Tribunal. President and Vice President - Supreme Court

The decision of the inferior court in election contests involving barangay officials and of the Regional Trial Court in election contests involving municipal officials are appealable to the COMELEC. (Section 2(2). Article IX-C of the Constitution.) The decision of the COMELEC may be brought to the Supreme Court on certiorari on questions of law. (Rivera vs. COMELEC, 199 SCRA 178)

The decision of the COMELEC in election contests involving regional, provincial and city officials may be brought to the Supreme Court on certiorari (Section 7, Article IX-A and Section 2(2), Article IX-C of the Constitution.) The decisions of the Senate Electoral Tribunal and of the House of Representatives Electoral Tribunal may be elevated to the Supreme Court on certiorari if there was grave abuse of discretion. (Lazatin vs COMELEC 168 SCRA 391)

Q: What are the grounds for the filing of election protests? A: 1. Fraud; 2. Vote-buying; 3. Terrorism; 4. Presence of flying voters; 5. Misreading or misappreciation of ballots; 6. Disenfranchisement of voters; 7. Unqualified members of board of election inspectors; and Other election irregularities.

Note: Pendency of election protest is not sufficient basis to enjoin protestee from assuming office. A protestant has the right to withdraw his protest or drop polling places from his protest. The protestee, in such cases, has no cause to complain because the withdrawal is exclusive prerogative of the protestant.

Q: When the protestant dies during the pendency of his/ her election protest, may his/her spouse substitute in his/ her stead to avoid dismissal of the protest? A: No right of substitution can inure in favor of a surviving spouse, for the right to hold the disputed public office is a personal right which cannot be transmitted to the latters legal heirs. The rule on substitution as applied to election contest must only be in favor of a person who is a real party in interest, e.g. the party who would be benefited or injured by the judgment, and the party who is entitled to avail of the suit. A wife cannot substitute for her deceased husbands protest, for she will not, in any way, be directly or substantially affected by the possible resolution of the protest. (Poe v. Macapagal-Arroyo, PET Case 002, Mar. 29, 2005)

SAMPLE QUESTION:

Under the Omnibus Election Code, briefly differentiate an election protest from a quo warranto case, as to who can file the case and the respective grounds therefore.

Suggested Answer: An ELECTION PROTEST maybe filed by a losing candidate for the same office for which the winner filed his certificate of candidacy. A QUO WARRANTO CASE may be filed by any voter who is a registered voter in the constituency where the winning candidate sought to be disqualified ran for office. In an election contest, the issues are: (a) who received the majority or plurality of the votes which were legally cast and (b) whether there were irregularities in the conduct of the election which affected its results. In a quo warranto case, the issue is whether the candidate who was proclaimed elected should be disqualified because of ineligibility or disloyalty to the Philippines.

SAMPLE QUESTION: Discuss the disputable presumptions (a) of conspiracy to bribe voters and (b) of the involvement of a candidate and of his principal campaign managers in such conspiracy.

Suggested Answer:

Under Sec. 28 of the Electoral Reforms Law -- proof that at least one voter in different precincts representing at least 20% of the total precincts in any LGU was offered, promised or given money, valuable consideration or other expenditure by the relatives, leader or sympathizer of a candidate for the purpose of promoting the candidacy of such candidate, --- gives rise to a disputable presumption of conspiracy to bribe voters.

Under Sec. 28 --- if the proof affects at least 20% percent of the precincts of the LGU to which the public office aspired for by the favored candidate relates, this shall constitute a disputable presumption of the involvement of the candidate and of his principal campaign managers in each of the municipalities concerned, in the conspiracy.

Petition to Annul Proclamation May be filed based on manifest errors in the transmitted results or variance of results from the election returns and the COC. COMELEC is required to hear the petition immediately and the ballots may be ordered manually re-counted to verify the manifest errors or alleged variance. Note: This remedy is much faster than an election protest.

Is a petition to declare failure of election different from a petition to annul the election results?

Held: A prayer to declare failure of elections and a prayer to annul the election results x x x are actually of the same nature. Whether an action is for declaration of failure of elections or for annulment of election results, based on allegations of fraud, terrorism, violence or analogous, the Omnibus Election Code denominates them similarly. (Banaga, Jr. v.
COMELEC, 336 SCRA 701, July 31, 2000, En Banc [Quisumbing])

What conditions must concur before the Comelec can act on a verified petition seeking to declare a failure of election? Is low turn-out of voters enough basis to grant the petition?
Held: Before COMELEC can act on a verified petition seeking to declare a failure of election, two (2) conditions must concur: first, no voting has taken place in the precinct or precincts on the date fixed by law or, even if there was voting, the election nevertheless results in failure to elect; and, second, the votes not cast would affect the result of the election. All the law requires is that a winning candidate must be elected by a plurality of valid votes, regardless of the actual number of ballots cast. Thus, even if less than 25% of the electorate in the questioned precincts cast their votes, the same must still be respected. (Mitmug v. COMELEC,
230 SCRA 54, Feb. 10, 1994, En Banc [Bellosillo])

What are the two conditions that must concur before the COMELEC can act on a verified petition seeking to declare a afailure of election?

Held: Before the COMELEC can act on a verified petition seeking to declare a failure of election two conditions must concur, namely: (1) no voting took place in the precinct or precincts on the date fixed by law, or even if there was voting, the election resulted in a failure to elect; and (2) the votes not cast would have affected the result of the election. Note that the cause of such failure of election could only be any of the following: force majeure, violence, terrorism, fraud or other analogous causes. Banaga, Jr. v. COMELEC (336 SCRA 701)

SUSPECTED QUESTION: LOREN filed a protest questioning the election of NOLI as Vice President. While the case was pending, LOREN won as senator. May LOREN continue with her election protest in order to determine the real winner in the said elections? ANSWER: The purpose of the protest is simply to seek the removal of NOLI from office. LOREN forfeited her claim to the position by filing her certificate of candidacy for senator. The protest has become moot. Nothing will be gained by resolving it. (Legarda v. De Castro, 18 January 2008)

PROSECUTION OF ELECTION OFFENSES

Q: Who has the authority to prosecute election offenses? A: The COMELEC is vested with the power of a public prosecutor with the exclusive authority to conduct the preliminary investigation and prosecution of election offenses punishable under the Omnibus Election Code. (Sec. 265, B.P. 881 Omnibus Election Code) Q: May the COMELEC delegate such authority? A: Yes. The COMELEC en banc may delegate such authority to any public prosecutor but always subject to the control and supervision of the COMELEC. (People v. Delgado, G.R. No. Nos. 93419-32, September 18, 1990)

Q: In cases where the prosecutor exercises delegated authority to conduct preliminary investigation of election offenses and such officer, after investigation, already resolves the issue of probable cause, where should one appeal the resolution? A: From such resolution, appeal to the COMELEC lies, and the latters ruling on the appeal would be immediately final and executory. However, if the preliminary investigation is conducted by the COMELEC itself, appeal to the COMELEC is unavailing, but the respondent may file a motion for reconsideration of the resolution of the COMELEC en banc finding probable cause. (Faelnar v. People, G.R. Nos. 140850-51. May 4, 2000)

Q: What are the election offenses? A: 1. Vote buying and vote selling; 2. Conspiracy to bribe voters; 3. Wagering upon result of election; 4. Coercion of subordinates; 5. Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion; 6. Coercion of election officials and employees; 7. Appointment of new employees, creation of new position, promotion, giving of salary increases; 8. Intervention of public officers and employees; 9. Undue influence; 10. Unlawful electioneering; 11. Others. (Sec. 261, B.P. 881 Omnibus Election Code)

Q: What is the prescriptive period of election offenses? A: 5 years from the date of their commission. (Sec. 267, B.P. 881 Omnibus Election Code) Q: Which court has jurisdiction to hear and decide election offenses? A: GR: The RTC has the exclusive and original jurisdiction to hear and decide any criminal action or proceedings for violation of the OEC. XPN: The MTC has jurisdiction over offenses relating to failure to register or failure to vote.