Suspension of Local Elective Official (Governor down to
Barangay Kagawad) is prohibited during election period. It does not matter whether it is a preventive suspension or suspension as a penalty. Both are not allowed. (It does not include the Congressman because the jurisdiction pertains either to Sandiganbayan or House of Representatives.)
Legal Solutions of Disputes Related to Election Results
Elections are synchronized, meaning simultaneous. Unique
because probably we are the only country with synchronized elections due to budgetary constraints, to save expenses. Except for Barangay elections, it cannot be synchronized because it is non-partisan. If barangay elections is synchronized with all other elective positions, it becomes partisan. These are: 1. City of Municipal Board of Canvassers. Canvassing the votes means to consolidate or add votes of candidates from one precinct to another. After the board has canvassed the votes, in their level, they proclaim the winning candidates for city or municipal positions. They accomplish a form called the certificate of canvass and proclamation. They also prepare a statement of votes by precinct for the other candidates in other positions (i.e. Provincial, congressional, partylist and senatorial). In the event it is a national election, they also canvass the votes for president and vice-president. Attys Discussion: Board of Canvassers. If its the barangay level, it is called the BBOC/ Barangay Board of Canvassers. In which case, if it is the barangay elections, the election officer or the COMELEC for that matter is without jurisdiction to proclaim a candidate. It is only the BBOC in the barangay level that proclaims the barangay officials. If City, CBOC; Municipality, MBOC; Province, PBOC; National, NBOC. The National Board of Canvassers canvass the results for President and Vice-President. It is the Commission on Election in Intramuros that canvasses the results for Senators.
Unique Features of Philippine Elections
- Elections are SYNCHRONIZED hence elections nationwide take place every three years - on the second Monday of May. Attys Discussion:
All winners are proclaimed on the basis of plurality of votes.
Attys Discussion: All winners are proclaim in the basis of plurality of votes because there is no requirement under the law that you have to acquire a 50 percent plus 1 votes; only plurality. In which
There are two exceptions to the prohibitions against
suspension. First is if you secure a written authority from the COMELEC, you can suspend. You just have to convince the COMELEC that theres a case and that case warrants suspension. The other one is if it applies to Graft and Corrupt Practices Act. So if it is an Ombudsman that suspends a Local Elective Official, the COMELEC is divested of its jurisdiction. Campaign is not allowed during the election day. Campaign period vs. Election period. Election period is longer. It starts 90 days prior to election day and ends 30 days thereafter. While campaign period is shorter. Campaign period is part of the election period. Campaign period is 90 days for national officials and 45 days for local officials. For 2016 election, the election period is 120 days. Is it allowed? Yes because the Constitution states that in special cases, the COMELEC may extend the election period. Remember that the determination of whether it is a special case is a question of fact. Once it is a question of fact, the Court normally will not interfere the findings of the COMELEC, unless it is arbitrary or rendered with grave abuse of discretion. Commission on Elections Republic of the Philippines
case, if you run for elective position in a general election, you
need only to get 1 vote to win because 1 vote is already plurality over zero. But for special elections, the candidate may be proclaimed winner without being elected provided that the COMELEC certifies that there is only 1 candidate for the position and that 1 candidate is qualified. Otherwise if that candidate is disqualified, there has to be another special election.
jurisdictional. Thats why in the petition you must allege the
date of proclamation to show timeliness.
After the proclamation of the winning candidates, should
there be any dispute related to election results, the legal solution is through an election protest that may be filed only by a losing candidate for the same position being challenged before a proper electoral tribunal. Attys Discussion: Who is the proper party to file an election protest? The one who is aggrieved, the loser. In other words, you as an ordinary citizen or a voter cannot say that you like to be a hero and file an election protest against the mayor because he committed fraud thats why he won. You cannot do that unless your remedy is something else, which is a quo warranto. But the grounds are disloyalty to the republic and ineligibility. You cannot say fraud or misappreciation of ballot. So remember, the one who can be a protestant in a protest case is the person who lost the election for the same position.
In this case, it seeks to annul the proclamation of the winner
and for the tribunal to proclaim the protestor or protestant the winner. Attys Discussion: What is a manifest error? It is an equivalent of a plain view doctrine; visual search. In other words, when you say manifest error, that error is readily discernable to the naked eye, but only in that document. When you say election returns, probably you can see there a miscalculation; the addition is incorrect, that is a manifest error. Other form of manifest error is when 1 election return is tabulated twice. Manifest error, you only limit yourself to the face of the document. If you go beyond the document, it is no longer manifest error.
When to file election protests:
1. For municipal positions - within 10 days AFTER proclamation. 2. For city/provincial/regional positions - within 10 days AFTER proclamation. 3. For members of the House of Representatives - within 10 days AFTER proclamation. 4. For members of the Senate - within 15 days AFTER proclamation. 5. For President and Vice-President - within 30 days AFTER proclamation. Attys Discussion: If you do not follow the timeliness. For example, if you file an election protest the day after the deadline, it will be dismissed right away because it is mandatory and
The election protest may include correction of manifest
errors in the election returns or a statement of votes by precinct, city and municipality, such that if corrected the results of the election will be altered such that the losing candidate will have more votes than the winning candidate.
For example, in the election returns, how come 50 plus 50 is
150 which is supposed to be 100 only, that is manifest error, for it is an error in the computation. But when you say that 150 should only be 100 because the 50 is the result of ballot misappreciation, you now go to a document other than the election returns, you go back to the ballots. In that case, it is no longer the face of the document that you are trying to examine. That is not manifest error. The election protest may also be grounded on election irregularities or election fraud such as misreading of ballots, padding or shaving of votes, terrorism, violence, or vote buying. In this case, the election protest will entail review or rereading of ballots for the tribunals evaluation for such precincts identified in the election protests. Attys Discussion: But the best ground for an election protest should only be
misreading of ballots and padding or shaving of votes.
Because these terrorism, violence and vote-buying, how do you quantify them? Whereas if you limit your protest to misappreciation of ballots, the ballots are still there. Theres complete evidence and the remedy is just to recount them, same as shaving/padding of votes. An election protest may only be filed against a duly proclaimed winner. It can only be filed by a losing candidate who was voted in the election for the same position. An election protest complaint must comply strictly with procedural requirements under rules: A. It must be filed within the reglementary period; -which is mandatory and jurisdictional B. All fees required must be paid within the same reglementary period; -If you filed it timely but you did not pay the filing fee, such is tantamount to not filing on time. If you pay but not in full is also tantamount to not filing on time. C. It must contain all the allegations required by the rules to make it sufficient in form and substance; - Number one requirement is that allegation must be in so far as timeliness is concerned. And the only evidence to show timeliness is the date of proclamation. You allege the date of proclamation. D. It must be under oath by the protestor or protestant. E. It must contain a certification of non-forum shopping. Answer to an election protest: 1. Protestee or the proclaimed winner shall file an answer within the prescribed period to file it. 2. It may contain a counter-protests. For the counter protest, payment of fees are also required. Attys Discussion: What if theres an election protest against your client, what should you do as a lawyer? You file an answer within the prescribed period to file it but it may contain a counterprotest. What is a counter-protest? If theres an election protest, that election protest specifies the polling places
where the protestant felt that he was cheated. If it will be
proven that he was cheated, it might adverse the effect of the result of the election. So you should also look for the polling places that your client felt that he was cheated so in case the result is changed theres something you can compensate. So there has to be that counter-protest. But that is not mandatory. Procedure 1. After the answer has been filed, the tribunal schedules a pre-trial conference between the parties to determine whether parties can make stipulation of facts or admissions. 2. The court aided by the parties may simplify the issues based on the admissions. 3. Determine the number of witnesses during the pre-trial which the parties may present. 4. Schedule the start of the review of ballots. 5. Revision of ballots is done by a committee of revisers composed of three (3) persons, the chairman of whom is appointed by the tribunal while the 2 members are revisers appointed by each party. 6. During the revision of ballots objections by the revisers of the parties may be made against any ballot. These are all recorded so a revision report per precinct may be made and submission to the court to enable him to know the disputed ballots and to make a ruling there all. 7. When all the protested precincts had been reviewd or revised by the revisers, the protestant is ordered to identify 20% of the entire protested precincts to make a preliminary finding whether, on the basis of the 20% chosen, there is enough proof to show that the protestant has a chance to win the protest. If the 20% does not show this chance, the petition is dismissed. If the protestant can show that he has a chance to win the protest, then the counter-protested precincts are revised. A revision report is also prepared by the revisers committee to be submitted to the court. Attys Discussion: PROBLEM: He alleged that there is a misappreciation of
ballots. But after proclamation, the BEI loses jurisdiction, the
COMELEC loses jurisdiction. It is now pertain to the RTC/MTC. So how does the RTC/MTC or even the COMELEC recount or reappreciate the ballots? The equivalent is revision. (This came out in the exam, Sir said that the case is an election protest so the RTC can revise the ballots, meaning it can reappreciate the ballots.) If the RTC/MTC revises the ballots, it now reviews the determination of or counting of the ballots by the BEI. So if the RTC now says that nasayop ang BEI, it should be counted, pwede nya isupersede ang finding sa BEI. Thats why the results might be changed if there is a revision. It happens normally during manual elections, especially barangay elections. Kaning mga BEI nga nag appreciate sa ballots but later on superseded by the court, are they liable? Not necessarily because ballot appreciation is a matter of discretion. And what we say about discretion? In so far as the BEI is concerned at the polling place level, that was the best determination of the ballots. They cannot be imprisoned because it is a discretionary act, for as long as they have the legal basis for appreciating the ballots that way and the candidate does not agree with them, okay lang, for as long as theres that legal basis. After the evaluation of the disputed ballots by the court, the tribunal makes rulings and prepares the decision. If the protestant wins, the proclamation of the protestee is annulled and the protestant is proclaimed the winner. So the RTC/MTC has the authority/jurisdiction to annul the proclamation if in the revision the result is different. After the finality of the decision, the new winner takes his oath and assumes his position. Attys Discussion: But that is very difficult because although theres a writ of execution from COMELEC, the incumbent official sought to be unseated by that writ of execution is so stubborn, will not step down, stays inside the city/municipal hall and the supporters will camp outside. But once they camp out, it is very expensive. So before the crowd thins out, the official