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ELECTION LAWS The Chairman and Members are appointed by the
Suffrage the right and obligation of qualified citizens to
vote in the election of certain national and local of the government
and in the decisions of public questions submitted to the people. It
includes within its scope: election, plebiscite, initiative, referendum
and recall.
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 as their representatives the exercise of the powers of
the government, It involves the choice of selection of candidates to
public office by popular vote.
Plebiscite a vote of the people expressing their choice for
against a proposed law or enactment submitted to them. An election
at which any proposed amendment to or revision of the Constitution
is submitted to the people for their ratification. A constitutional
requirement o secure the approval of the people directly affected,
before certain proposed changes affecting local governments units
may be implemented.
Initiative it is the process by which the registered voters
directly propose, amend laws, national or local, though an election
called for the propose. Amendments to the Constitution may likewise
be directly proposed by the people though initiative.
Referendum- it is at he submission of a law pass by the
national or local legislative body to the registered voters of an
election called for the purpose for their ratification or rejection.
Recall- it is a method by which a public officer may be
removed from office during his tenure or before the expiration of his
term by a vote of the people after registration of a petition singed by
a required percentage of the qualified voters.
Since the right of suffrage is a political and not a natural
right, it is within the power of the state prescribe the manner in which
such right shall be exercised. Congress is mandated by the
Constitution (Sec.2, Art. V):
To provide a system for securing the secrecy and sanctity of the
ballot, and for absentee voting by qualified Filipinos
abroad, and
To design a procedure for the disabled and the illiterate to vote
without the assistance of other persons.
THE COMMISSION ON ELECTIONS
Composition, Qualifications, Appointment,
Term of Office
The COMELEC is composed of a chairman and six (6)
Commission, The Chairman and the Members of the Commission
shall be:
natural -born citizens of the Philippines
at least thirty-five years of age
holders of a college degree
must not have been candidates for any elective position in the
immediately preceding election
majority thereof, including the Chairman shall be members of
the Philippines Bar who have been engaged in the practice
of law for at least 10 years (reason: COMELEC exercises
quasi-judicial powers)
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president with the consent of the commission on Appointment for the
term seven (7) years without reappointment on a staggered basis to
make the COMELEC a continuing and self-perpetuating body.
Consequently, its members would have the benefit of the experience
and expertise of the order members of the performance of its
functions, and makes for greater responsibility for its policies and
decisions and serve as guarantee against arbitrary action which is
likely to occur in a body handling partisans questions.
A member appointment and designations in temporary or
acting capacity are not allowed to preserve its independence.
Disabilities, inhibitions\disqualifications
1. Shall not, during tenure, hold any other office or
employment
2. Shall not engage in the practice of profession
3. Shall not engage in active management or control of any
business which in any ay may be affected by the functions
of his office
4. Shall not be financially interested, directly or indirectly, in
any contract with, or in any franchise or privilege granted
by the Government, any of its subdivisions, agencies or
instrumentalities, including GOCC s or their subsidiaries.
Safeguards to insure the independence of the COMELEC
It is constitutionally created; may not be abolished by statute
It is expressly described as independent
It is conferred with certain powers and functions which cannot
be reduced by statute.
The chairman and members cannot be removed except by
impeachment.
The chairman and members are given fairly long term of office
of seven years.
The chairman and members may not be reappointed or
appointed in an acting capacity.
The salaries of the chairman and members are relatively high
and may not be decreased during continuance in office.
The COMELEC enjoy fiscal autonomy.
The COMELEC may promulgate its own procedural rules,
provided they do not diminish, increase or modify
substantive rights (though subject to disapproval by the
Supreme Court)
The Chairman and Members are subject to certain
disqualifications calculated to strengthen their integrity.
The COMELEC may appoint their own officials and employees
in accordance with Civil Service Laws.
En Banc & Division Cases
SEC 3, ART IX-C The COMELEC may sit en banc or in
two divisions, and shall promulgate its rules of procedure in
order to expedite disposition of election cases, including pre-
proclamation controversies. All such election cases shall be
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heard and decided in division, provided that motions for
reconsideration of decision shall be decided by COMELEC en
banc
The Supreme Court set aside the resolutions/decisions of
the COMELEC because dthe COMELEC en banc tokk original
cognizance of the cases without referring them first to the appropriate
Division (Sarmiento vs. COMELEC 212 SCRA 307; Zarate vs
COMELEC, 318 SCRA 608)
Interlocutory orders issued by a division of the COMELEC
cannot be elevated to the COMELEC en banc. (Kho vs. COMELEC,
279 SCRA 463)
The following cases must be decided in Division before
they may be heard en bnc on motion for reconsideration:
Petition to cancel a certificate of candidacy. (Garvida vs. Sales,
271 SCRA 764)
Cases appealed from the RTC or MTC (Zarate vs.
COMELEC,318 SCRA 608)
Petition for certiorari involving incidental issues of election
protest.(Soller vs. COMELEC,339 SCRA 685)
The COMELEC en banc, however, may directly assume
jurisdiction over petitions for correction of manifest errors in the
tabulation or tallying of results (Ststement of votes) by the Board of
Canvassers, notwithstanding that the same is a pre-proclamation
comtroversy. Section 5, Rule 27 of the 1993 Rules of the COMELEC
expressly provides that pre-proclamation controversies involving
correction of manifest errors in the tabulation of results may be filed
directly with the COMELELEC cen banc. (Torres vs. COMELEC,270
SCRA 583; Ramirez vs. COMELEC,270 SCRA 590)
The COMELEC en banc determines the existence of
probable cause.(Faelnar vs. COMELEC,331 SCRA 429)
DECISIONS
ART IX-A, Section 7 Each commission(COMELEC)
shall decide by a majority vote of all its Members any case or
matter brought before it within sixty days from date of its
submission for decision or resolution. A case or matter is
deemed submitted for decision or resolution upon the filing of
the last pleading, brief, or memorandum required by the rules of
the Commission or by the Commission itself. Unless otherwise
provided by the Commission or by law; any decision, order, or
ruling of each Commission may be brought to the Supreme
Court on certiorari by the aggrieved party within 30 days from
receipt of a copy thereof.
The COMELEC shall decide by a majority vote of all its
members in any case or matter brought before it within 60 days from
date of its submission for decision or resolution. Two members shall
constitute a quorum for the transaction of the official business of the
Division. A case being heard by it shaa be decided with the
unanimous concurrence ofc all three Commissioners and its decision
shall be considered a decision of the commission. If this required
number is not obtained, as when there is a dissenting opinion, the
case may be appealed to the Commission en banc, in which case the
vote of the majority shall be the decision of the Commisssion.
The court holds that 2-1 decision rendered by the First
Division was a valid decision under ART IX-A ,Section 7 of the
Constitution. Furthermore, the three members who voted to affirm the
First Division constituted a majority of the five members who
deliberated and voted thereon en banc and their decision is also valid
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under the aforecited constitutional provisions. (Cua vs. COMELEC,
156 SCRA 587)
One who is no longer a member of the COMELEC at the
time the final decision or resolution is promulgated cannot validly
take part in that resolution or decision,much more could he be the
ponente of the resolution or decision.(Ambil vs. COMELEC, 344
SCRA 358)
RULES OF PROCEDURE
The COMELEC en banc may promulgate its own rules
concerning pleadinga and practice before it or before any of its
offices. Such rules, however, shall not diminish,increase or modify
substantive rights. The Rules of Court applies suppletorily to
proceedings before the COMELEC. (Paangarungan vs.
COOMELEC,216 SCRA 522)
CONSTITUTIONAL POWERS AND FUNCTIONS
Enforce and administer laws relative to conduct of elections
The regular courts have no jurisdiction to entertain a
petition to enjoin the construction of public works projects
within 45 days before an election.(Gallardo vs.
Tabamo,218 SCRA 253)
Decide election contests involving regional, provincial and city
officials
ELECTION CONTEST refers to the adversary proceedings
before which matters involving the title or claim to an
elective office made before or after proclamation of the
winner,is settled whether or not the contestant is claiming
the office in dispute. It is neither a civilk action nor crimianal
proceeding;it is a summary proceeding of a political
character. Its purpose is to ascertain the candidate lawfully
elected to office.(Javier vs. COMELEC,144 SCRA 194)
The COMELEC has exclusive appellate jurisdiction
over,inter alia, contest involving elective barangay officials
decided by trial courts of limited jurisdiction.(Beso vs.
abolla,327 SCRA 100)
The provision of RA 6679 granting appellate jurisdiction to
the RTC over decisions of MTCs in electoral cases
involving elective barangay officials is unconstitutional.
(Flores vs. COMELEC,184 SCRA 484)
The COMELEC is the proper appellate court clothed with
jurisdiction to hear the appeal, which must first be filed
wiyhin 5 days after the promulgation of the MTCs
decision(Antonio vs. COMELEC,315 SCRA 62)
The election of SK are goverened by the Omnibus Election
Code. Any contest relating to the election of the SK
(including the chairman whether pertaining to their eligibility
or the manner of their election is cognizable by
MTCs,MTCCs, and MeTCs. It is the proclamation which
marks off the jurisdiction of the courts from the jurisdiction
of election officials. (Marquez vs. COMELEC, 313 SCRA
103)
The COMELEC has appellate jurisdiction over election
protest cases involving elective municipal officials decided
by courts of general jurisdiction. (Carlos vs. Angeles,346
SCRA 671)
Decide all questions affecting elections
The COMELEC has no jurisdiction over questions involving
the right to vote which includes qualifications and
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disqualifications of voters, the right of a person to be
registered as voter, the right to cast his vote, and other
allied questions. Such questions shall be decided by the
courts.( Naciionalista Party vs. COMELEC, 84 Phil 49)
Election contests involving elections of SK officials do not
fall within section 252 of the OEC and paragraph 2,section
ART.IX-C of the Constitution and no law in effect prioir tom
the ratification of the constitution has made the SK
Chairman an elective barangay official. SK elections are
under the direct control and supervision of the DILG.
(Ahman vs. Mirasol,276 SCRA 501)
Decisions/determinations made by the COMELEC in the
exercise of this power, being merely administrative(not
quasi judicial) in character, may be questioned in an
ordinary civil action before the trial courts.(Filipinas
Engineering vs. Ferrer,135 SCRA 25)
Deputize law enforcement agencies with the concurrence of the
President
Register political parties and accredit its citizens arms
File petitions, investigate and prosecute
Recommend measures to improve election laws
Recommend the imposition of disciplinary action upon an
employee it has deputized for violation of its order.
Since the COMELEC can recommend that disciplinary
action be taken against an officer it had deputized, idt can
investigate an administrative charge against such an officer
to determine whether or not it should recommend that
disciplinary action can be taken against him (Tan vs.
COMELEC,237 SCRA 353)
Regulation of public entities and media-
Section 4, IX-C The Commission may, during the election
period, supervise or regulate the enjoyment or utilization of
all franchises or permits for the operation of transportation
and other public utilities, media of communication or
information, all grants special privileges, or concessions
granted by the Government or any subdivision, agency or
instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary. Such supervision or
regulation shall aim to ensure equal opportunity, time, and
space and the right to reply, including reasonable equal
rates therefor, for public information campaigns and forums
among candidates in connection with the objective of
holding free, orderly, honest, peaceful, and credible
elections.
The authority given to the COMELEC is to be exercised ofr
the purpose of ensuring free, orderly,honest,peaceful.and
credible elections and only during the elecxtion period.
Note that GOCCs are among those that may be supervised
and regulated by the COMELEC.
The SC upheld the validity of Section 11(b), RA 6646,
prohibiting the sale odr donation of print space or airtime
for political advertisements, and the authority of the
COMELEC to procure print space (upon payment of just
compensation) and free airtime for allocation to
candidates.(Telecommunication and Broadcast Attorneys
of the Philippines vs. COMELEC,289 SCRA 33)
An exit poll is a species of electoral survey conducted by
qualified individuals or groups of individuals for the purpose of
determining the probable result of an election by confidentially
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asking randomly selected voters whom they have voted
for,immediately after they have officially cast their
ballot.(ABS-CBN Broadcasting corporation vs.
COMELEC,323 SCRA 811)
An absolute prohibition would be unreasonably
restrictive,because it effectively prevents the use of exit poll
data not only for election-day projections,but also for long
term research. The COMELEC concern with the possible non
communicative effect of exit polls-disorder and confusion in
the voting centers- does not justify a total ban on them. The
holding of exit polls and the dissemination of their results
through mass media constitute an essential part of freedom of
speech and of the press. The reason behind the principle of
ballot secrecy is to avoid vote buying through voter
identification (ABS-CBN Broadcasting Corporation vs.
COMELEC)
The SC held that SEC 5.4 of the Fair Election Act
prohibiting publication of survey results 15 days immediately
preceding a national election and 7 days before a local
election violates the constitutional rights of
speech,expression,and the press because:
a. It imposes prior restraint on the freedom of
expression;
b. It is a direct and total suppression of the category of
expression even though such suppression is only
for a limited period; and
c. The governmental interest sought to be promoted
can be achieved by means other than the
suppression of freedom of expression. (Social
Weather Station vs. Comelec, GR No. 147571, May
5,2001)
Make minor adjustments of the apportionment of legislative
districts.
This refers mainly to the power to correct an error because
of the omission of a municipality or an error in the name of a
municipality and does not include the power to make a
reappointment of legislative districts. (Montejo vs.
COMELEC,242 SCRA 415)
Adjust the apportionment in a case of creation of new provinces or
cities.
The COMELEC is merely authorized to adjust the number of
congressmen apportioned to an old province if a new
province is created out of it and does not authorize the
COMELEC to transfer municipalities from one legislative
district to another. (Montejo,supra)
Pardon violators of election laws.
Promulgate rulwes of procedure concerning pleadings and practice
before it or any of its offices.
Submit report on how a previous elections was conducted.
STATUTORY POWERS
1. Power to declare failure of election and call for special
election.
2. Exclusive original jurisdiction over all pre-proclamation
controversies.
3. Issue writs of certiorari, prohibition
The COMELEC has the authority to issue extraordinary
writs of certiorari,prohibition and mandamus in aid of its exclusive
appellate jurisdiction.
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Both the SC and the COMELEC have concurrent
jurisdiction to issue writs of certiorari,prohibition, and mandamus over
decisions of trial courts of general jurisdiction in election cases
involving elective municipal officials. The court takes jurisdiction first
shall exercise exclusive jurisdiction over the case. (Carlos vs.
Angeles,346 SCRA 571)
4. Summons parties to a controversy pending before it
5. Enforce and execute its decisions and orders
6. Punish contempts provided for in the Rules of Courts.
The COMELEC has the power to cite for contempt, but this
power may be exercised only while the COMELEC is engaged in
the performance of quasi-judicial functions and not administrative
functions.(Guevarra vs. COMELEC, 104 PHIL 269 and Masangcay
vs. COMELEC, 6 SCRA 270)
7. Promulgate rules and regulations implementing the Election
Code
8. Exercise direct and immediate supervision and control over
officials required to perform duties relative to the conduct of
election.
9. Prescribe forms to be used in the election
10. Procure any supplies, equjipment, materials or services
needed for the holding of election
11. Prescribe the use or adoption of the latest technological and
electronic devices
12. Carry out continuing and systematic campaign to educate the
public about elections
13. Fix other reasonable periods for certain pre-election
requirements.
Enlist non-partisan groups to assist.
JUDICIAL REVIEW OF DECISIONS
Any decision, order or ruling of the COMELEC en banc
may be brought to the SC on certiorari by the aggrieved party
within 30m days from receipt of the copy thereof. When the
Supreme Court reviews a decision of the COMELEC, the court
exercises extraordinary jurisdiction, thus the proceeding is limited
to issues involving grave abuse of discretion resulting in lack or
excess of jurisdiction and does not ordinarily empower the court to
review the factual findings of the COMELEC. (Aratuc vs.
COMELEC,88 SCRA 251)
The mode by which a decision, order or ruling en banc may
be elevated to the SC is the civil action of certiorari under Rule 65
of the 1964 Revised Rules of Court, now expressly provided in
Rule 64, 1997 Rules of Civil Procedure, as amended. (Ambil vs.
COMELEC,344 SCRA358)
A special civil action for certiorari is the proper remedy to
question any final order, ruling and decision of the COMELEC
rendered in the exercise of its adjudicatory or quasi-judicial
powers.(Guerero vs. COMELEC,336 SCRA 458)
What is contemplated by the term final orders, rulings and
decisions of the COMELEC reviewqable by certiorari by the
Suprerme Court as provided by law are those rendered in actions
or proceedings before the COMELEC and taken cognizance of by
the said body in the exercize of its adjudicatory (or quasi-judicial)
powers. (Salva vs. Makalintal, 340 SRA 506)
COMELEC Resolution No. 2987 which provides for the
rules and regulations governing the conduct of plebiscite, is not
issued pursuant to the COMELECs quasi-judicial functions but
merely as an incident of its inherent administrative functions over
the conduct of plebiscites, and any question pertaining to the
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validity of said resolution may be well taken in an ordinary civil
action before the trial courts.(Salva ,supra)
The alleged nature or the COMELEC to implement its
resolution ordering the deletion of a candidates name in the list of
qualified candidates does not call for the exercise of the SCs
function of judicial review as it is undoubtedly administrative in
nature, beyond judicial interference.(Chavez vs. COMELEC, 211
SCRA 315)
A resolution of the COMELEC awarding a contract for the
supply of voting booths to a private party, as a result of its choice
among various proposals submitted in response to its invitation to
bid, is not reviewable by certiorari as it is not order rendered in the
legal controversy before it but merely as incident to its inherent
administration functions over the conduct of elections. Any
question arising from said order may be taken in an ordinary civil
action. (Filipinas Engineering vs. COMELEC, 344 SCRA 358)
The Supreme Court has no power to review via certiorari,
an interlocutory order or even a final resolution of a Division of the
COMELEC. (Ambil vs. COMELEC, 244 SCRA 358)
A decision, order or resolution of a division of the
COMELEC must be reviewed by the COMELEC en banc decision
may be brought to the supreme Court on certiorari. (Ambil vs.
COMEL, 358)
VOTERS: QUALIFICATION AND REGISTRATION
Qualification for Suffrage
Filipino citizenship- it may be by birth or naturalization.
Age- a person may be registered as a voter although he is less
than 18 years at the time of registration if he will be at least
18 on the day of election.
Residence- at least 1 year in the Philippines, and at least 6 months
where he proposes to vote immediately preceding the
election. Any person who, on the days of registration may not
have been reached the required period of residence but who,
on the day of election shall possess such qualification, may
register as voter.
No literacy, property or other substantive requirement shall be
imposed on the exercise of suffrage.
Any person who temporarily resides in another city municipality
or country solely by reason of occupation, profession, employment in
public or private service, educational activities, work in the military or
naval reservations within the Philippines, service in the AFP, PNP or
confinement or detention in government institutions, shall not
deemed to have lost his original residence. (Sec. 9, RA 8189)
In election cases, the Supreme Court treats domicile and
residence and residence as synonymous terms. In order to acquire a
new domicile by choice, there must concur (1) residence or bodily
presence in the new locality;(2) an intention to remain there; and (3)
an intention to abandon the old domicile. The residence at the place
chosen for the new domicile must be actual. (Romualdez vs.
RTC,226 SCRA 406)
Disqualifications
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1. Any person sentenced by the final judgment to suffer i. Any registered voter in city or
imprisonment for not less than one year. municipality
ii. Representative of political party
2. Any person adjudged by the final judgment of having iii. Election Officer (Sec. 39, RA 8189)
commit (a) any crime involving disloyalty to the government iv. COMELEC [Sec. 2(6), Art. IX C, PC]
or (b) any crime against national security (c) firearms laws.
3. Period for Filing
3. Insane or incompetent persons as declared by competent
authority. ii. Inclusion Any day except 105 days before
regular election or 75 days before a special
Removal of disqualification for conviction election. (Sec. 24, RA 8189)
iii. Exclusion Any time except 100 days before a
Plenary pardon regular election or 65 days before special
election. (Sec. 35 RA 8189)
Amnesty
4. Procedure
Lapse of 5yaers after service of sentence (Sec.111, RA 8189)
ii. Petition for exclusion shall be sworn (Sec.
35 , RA 8189)
System of Continuing Registration iii. Each petition shall refer only to only one
precinct. (Sec. 35, RA 8189)
The personal filing o application of registration of voters iv. Notice
shall be conducted daily in the office of the Election Office during i. Parties to be notified
regular office hours. No registration shall, however, be conducted
during the period starting 120 days before a regular election and 90 5. Inclusion Election Registration Board
days before a special election. (Sec. 8, RA 8189) i. ii Exclusion
6. Election Registration Board
The Supreme Court upheld the validity of the COMELEC 7. Challenged voters [Sec. 32(b), RA 8189]
resolution denying the petition of certain youth sectors to conduct a 8. Manner
special registration: Petitioners were not denied the opportunity to 9.
avail of the continuing registration under RA 8189..the law aids the 1. Notice stating the place day and hour of hearing
vigilant and not those who slumber on their rights shall be served through any of the
following means:
In a representative democracy the right of suffrage,
10. Registered mail
although afforded a prime niche in the hierarchy of right embodied in
the fundamental law., ought to be exercised within the proper bounds
ii. Personal delivery
frames and framework of the Constitution and must properly yield to
iii. Leaving copy in possession of sufficient
pertinent laws skillfully enacted by the Legislature
discretion in residence.
iv. Posting in city hall or municipal hall and two
The right of suffrage ardently invoked by herein petitioners
other conspicuous places in the city or
is not at all absolutethe exercise of suffrage, as the enjoyment of
municipality at least 10 days before the
all other rights subject to existing substantive and procedural
hearing (Sec. 32(b), RA 8189)
requirement embodied in our Constitution, statute books and other
repositories of law. (AKBAYAN Youth et al. vs. COMELEC GR No.
147066, March 26, 2001) Any voter, candidate or political party affected may
intervene. (Sec. 32c, RA 8189)
Inclusion and Exclution Cases Non-appearance is prima facie evidence the registered
voter is fictitious (Sec. 32 (f), RA 8189)
1. Jurisdiction Decision cannot be rendered on stipulation of facts (Sec.
32 (f), RA 8189)
ii. Municipal or Metropolitan Trial Court original No motion for reconsideration is allowed, (Sec. 33, RA
and exclusive Jurisdiction\ 8189)
Annulment of List of Voters
iii.Regional Trial Court appellate jurisdiction (5
days) (Sec. 33, RA 8189) 1. Upon verified complaint of any voter, election officer or
iv. Supreme Court appellate jurisdiction over RTC registered political party or motu propio, the
on question of law (15 days) [Sec. 5(2)(e), Art. COMELEC may annul a list of votes which was not
VIII, PC; Sec. 2, Rule 45 of the Rules of Court.] prepared in accordance with RA 8189 or whose
preparation was affected with fraud, bribery, forgery,
2. Petitioners impersonation, intimidation, force or other similar
irregularity or statistically improbable.
ii. Inclusion
2. No list of voters shall be annulled within 60 days
Private person whose application was disapprove before an election (See. 33, RA 8189)
by the Election Registration Board or whose
name was stricken out from the list of waters The annulment of the list of voters shall not constitute a
(Sec. 34, RA 8189) ground for a pre-proclamation controversy. (Ututalum vs. COMELEC,
181 SCRA 335)
COMELEC [Sec. 2(6), Art. IX-C, PC]
When an assailed order had been issued pursuant to
iii. Exclusion COMELECs administrative powers in the absence of any finding of
grave abuse of discretion in declaring a precinct as non existent,
said order shall stand, judicial interference being unnecessary and
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uncalled for The sacred right of suffrage guaranteed by the
Constitution is not tampered when a list of fictitious voters is
excluded from an electoral exercise. (Sarangani vs. COMELEC, 334
SCRA 379)
Election precinct is the basic unit of territory established by the
COMELEC for the purpose of voting.
A polling place refers to the building or place where the board of
election inspectors conduct proceedings and where the voters cast
their votes.
Voting center refers to the building or place where the polling place
is located.
List of voters refers to an enumeration of names of registered voters
in a precinct duly certified by the Election Registration Board for use
in the election.
Book of voters refers to the compilation of all registration records in
a precinct.
Signature of Chairman at back of every ballot
In every case before delivering an official ballot to the
voter, the Chairman of the BEI shall, in the presence of the voter,
affix his signature at the back thereof. Failure to so authenticate shall
be noted in the minutes of the BEI and shall constitute an election
offense punishable under Sections 263 and 264 of the OEC.
IV. POLITICAL PARTIES AND PARTY LIST SYSTEM
Political party or party when used in the OEC means an
organized group of persons pursuing the same ideology, political
ideas or platforms of government and includes its branches or
divisions. A political party may refer to a local regional or national
party existing and duly registered and accredited by the COMELEC.
To acquire juridical personality, qualify for accreditation, and to be
entitled to the rights of political parties, a political party must be
registered with the COMELEC. The following political parties cannot
be registered.
1. Religious sects
2. Those which seeks to achieve their goals through unlawful
means
3. Those which refuse to adhere to the Constitution
4. Those that are supported by any foreign government
GROUNDS FOR CANCELLATION OF REGISTRATION
1. Accepting financial contributions from foreign governments
or their agencies (for partisan election purposes.)
(Sec.2(5), Art IX C, PC)
2. It is a religious sect or denomination, organization or
association organized for religious purposes.
3. It advocates violence or unlawful means to seek its
goal
4. It is a foreign party or organization
5. It violates or fails to comply with laws, rules and
regulations relating to elections
6. It declares untruthful statements in its petition
7. It has ceased to exist for at least one year , and
8. Fails to participate in the last two preceding elections, or
fails to obtain at least 2% of the votes cast under the party
list system in the two preceding elections for the
constituency in which it was registered.
A party which fails to obtain at least 10% of the votes
cast in the constituency in which it nominated
candidates in the election next following its registration
shall forfeit its registration.
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Party System. A free and open party system shall be allowed to
evolve according to the free choice of the people. [Sec 2(5) Art. IX
C, PC]
The Party List System, is a mechanism of proportional
representation in the election of representatives to the House of
Representatives, from national, regional and sectoral parties,
organizations and coalitions thereof registered with the COMELEC.
The Party list system was devised to replace the reserve seat
system the very essence of the party list system is representation
by election. (Veterans Federation Party vs. COMELEC, 342 SCRA
244)
GUIDELINES FOR SCREENING PARTY LIST PARTICIPANTS
1. The political party, sector, organization must represent
the marginalized and underrepresented groups
identified in Sec. 5 of RA 7941. majority of its
membership should belong to the marginalized and
underrepresented;
Proportional representation refers to the representation of
the marginalized and underrepresented as exemplified
by the enumeration in Sec/ 5 of the law, namely; labor
peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly,handicapped, women youth,
veterans, overseas workers and professionals. The
party list organization or party must factually and
truly represent the marginalized and underrepresented
constituencies mentioned in Sec. 5 .(ang bagong
Bayani OFW Labor Party, etal vs. COMELEC etal.
GR No. 147589. June 26, 2001)
2. While even major political parties are expressly
allowed by RA 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;
Political parties, even the major ones, may participate in
the party list elections, except for purposes of May 11, 1998
elections. The requisite character of these organizations must be
consistent with the purpose of the party list system, as laid down in
the Constitution and RA 7941 . . .
Under the Constitution and RA 7941, provide respondents
cannot be disqualified from the party list elections, merely on the
ground that they are political parties. Sec. 5 Art. VI of the Constitution
provides that members of the House of Representatives may be
elected through a party list system of registered national, regional
and sectoral parties or organizations. Furthermore, under Secs. 7
and 8, Art IX C of the Constitution, political parties may be
registered under the party list system. (Ang Bagong Bayani OFW
Labor Party, et al vs. COMELEC, et al. GR No. 147589, June 26,
2001)
3. That religious sector may not be represented in the
party list system, except that priest, imam or pastors
may be elected should they represent not heir
religious sect but the indigenous community sector.
4. A party or an organization must not be disqualified
under Sec. 6, RA 7941;
5. The party organized must not be adjunct of, or a
project organized or an entity funded or assisted by,
the government;
ZPG & Associates
6. The party, including its nominees must comply with
the qualification requirements of Sec. 9, RA 7941 as
follows: No person shall be nominated as party list
representative unless he is:
a. natural born citizen of the Philippines
b. a registered voter,
c. a resident of the Philippines for a period not of no
less than one year immediately preceding the
day of the election;
d. able to read and write;
e. a bonafide member of the party or organization
which he seeks to represent for at least 90 days
preceding the day of the election; and
f. At least 25 years of age on the day of the
election. In case of a nominee of the youth
sector, at least be 25 but not more than 30 years
of age on the day of the election. Any youth
sectoral representative who attains the age of 30
during his term shall be allowed to continue in
office until the expiration of his term.
7. Not only the candidate party or organization must
represent 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.
The parameters of the Filipino Party List System are: (1)
the twenty percent allocation, (2) the two percent
threshold; (3) the three seat limit; and (4) proportional
representation.
The Constitution makes the number of district
representatives the determinant in arriving at the
number of seats allocated for party list lawmakers, a
formulation which means that any increase in the
number of district representatives, an as may be
provided by law, will necessarily result in a
corresponding increase in the number of party list
seats . . . ..
Sections 5 (2), Art. VI of the Constitution is not
mandatory, it merely provides a ceiling for party list
seats in Congress . . Obtaining absolute proportional
representation is restricted by the three-seat-per-party
limit to a maximum of two additional slots . .
Under the Niemeyer formula, the number of additional
seats to which a qualified party would be entitled is
determined by multiplying the remaining number of
seats to be allocated by the total number of votes
obtained by that party and dividing the product by the
total number of votes garnered by all the qualified
parties.
The Niemeyer formula, while no doubt suitable for
Germany, finds no application in the Philippine setting because of our
three seat limit and the non mandatory character of the twenty
percent allocation. (Ang Bagong Bayani OFW Labor Party, et al vs.
COMELEC, et al. GR No.147589, June 26, 2001)
V. CANDIDATES AND CERTIFICATES OF CANDIDACY
QUALIFICATIONS OF CANDIDATES
A. National Arts. VI and VII, PC
1. President and Vice President
2. Senators
7
3. Congressmen District and Party List
Representatives
B. Local Sec.39, Local Government Code
Qualifications prescribed by law are continuing
requirements and must be possessed for the duration of the officers
active tenure. Once any of the required qualifications is lost, his title
to the office may be seasonably challenged. (Frivaldo vs. COMELEC,
174 SCRA 245 and Labor vs. COMELEC, 176 SCRA 1)
Residence
In Marcos vs. COMELEC, 248 SCRA 300, the Supreme
Court upheld the qualification of IRMarcos despite her own
declarations in her certificate of candidacy that she had resided in the
district for only seven months because of the following:
1. A minor follows the domicile of his parents; Tacloban
became IRMs domicile of origin by operation of law
when her father brought the family to Leyte;
2. Domicile of origin is lost only when there is actual
removal or change of domicile, a bonafide intention of
abandoning the former residence and establishing a
new one, and acts which correspond with the purpose;
in the absence of clear and positive proof of the
concurrence of all these, these domicile of origin
should continue;
3. The wife does not automatically gain the husbands
domicile because the term residence in Civil Law
does not mean the same thing in Political Law, when
IRM married Marcos in 1954, she kept her domicile or
origin and merely gained a new home, not a
domicilium necessarium;
4. Even assuming that she gained a new domicile after
her marriage and acquired the right to choose a new
one only after her husband died, her acts following her
return to the country clearly indicate that she chose
Tacloban, her domicile of origin, as her domicile of
choice.
In Aquino vs. COMELEC, 248 SCRA 400, the Supreme Court
held that Agapito Aquino failed to prove that he had established
not just residence but domicile of choice in Makati. In his
certificate of candidacy, he indicated that he was a resident of
San Jose Concepcion, Tarlac for 52 years, he was a registered
voter of the same district, his birth of certificate places
Conception, Tarlac as birthplace. Thus, his domicile of origin
was Conception, Tarlac, and his bare assertion of transfer of
domicile from tarlac to Makati is hardly supported by the facts of
the case.
When the Constitution speaks of residence the word
should be understood, consistent with Webster, to
mean actual, physical and personal presence in the
district that a candidate seeks to represent
The original concept of domicile, which arose from American
jurisprudence was not intended to govern political rights, it was
designed to resolve the conflict of laws between or among state
where a decedent may have lived for various reasons, for the
purpose of determining which law was applicable as regards his
estate . . .
Applying the concept of domicile in determining residence
as a qualification for an elective office would negate the objective
behind the residence requirement set forth under the law . . .
(Domino vs. COMELEC 310 SCRA 546)
The place where the party actually or constructively has his
permanent home, where he, no matter where he may found at any
given time, eventually intends to return and remain, i.e., his domicile,
is that to which the Constitution refers when it speaks of residence
for the purposes of election law . . .
ZPG & Associates
The registration of a voter in a place other than his
residence of origin is not sufficient to consider him to have
abandoned or lost his residence. (Perez vs. COMELEC, 317 SCRA
641)
The rationale of requiring candidates to have a minimum
period of residence in the area in which they seek to be elected is to
prevent the possibility of a stranger or newcomer unacquainted with
the conditions and needs of a community and not identified with the
latter from seeking an elective office to serve that community . . .
The classification of an area as a highly urbanized or
independent component city, for that matter, does not completely
isolate its residents, politics, commerce and other businesses from
the entire province, and vice versa, especially when the city is
located at the very heart of the province itself . .
The residence requirement is rooted in the desire that
officials of districts or localities are acquainted not only with the
metes and bounds of their constituencies but, more important, with
the constituents themselves, and a very legalistic, academic and
technical approach to the resident requirement does not satisfy this
simple, practical and common sense national for the residence
requirement. (Torayna vs. COMELEC 337 SCRA 574)
Philippine citizenship
The lost citizenship may be reacquired under Sec. 1 of RA
2630, which provides that any person who had lost his Philippine
citizenship by rendering service to, or accepting commission in, the
Armed Forces of the United States, or after separation from the
Armed Forces of the United States, acquired United States
citizenship by taking an oath to the Republic of the Philippines and
registering the same with Local Civil Registry in the place where he
resides or last reside in the Philippines. The said oath of allegiance
shall contain a renunciation of any other citizenship. (Bengson III vs.
HRET, et al. GR No. 142840, May 7, 2001)
Repatriation results in the recovery of the original
nationality. This means that a naturalized Filipino who lost his
citizenship will be restored to his prior status as a naturalized Filipino
citizen. On the other hand, if he was originally a natural-born citizen
before he lost his Philippine citizenship, he will be restored to his
former status as a natural born Filipino. (Bengson, supra)
Disqualifications
Grounds Under the Omnibus Election Code
A. Any person declared by competent authority insane or
Incompetent
B. Any person sentenced by final judgment for any of the
Following offenses:
1. Insurrection or rebellion
2. Offense for which he was sentenced to penalty of
More than 18 months
3. Crime involving morale turpitude (Sec. 12, BP
881)
C. A permanent resident to or immigrant to foreign country
Unless he waives such status (Sec. 68, BP 881)
D. Removal; Insanity or incompetence declaration of
removal by competent authority
8
E. Conviction; unless granted plenary pardon, amnesty; or
Lapse of 5 years after service of sentence (Sec. 12, BP
881)
Grounds under the Local Government Code Sec. 40
A. Those sentenced by final judgment for an offense involving
moral turpitude or an offense punishable by imprisonment
for at least one year, within two years after service of
sentence.
B. Those removed from office as a result of an administrative
case.
An elective local official who was removed from office prior
to January 1, 1992 is not disqualified from running for
elective local office (Grego vs. COMELEC, 274 SCRA 481)
C. Those convicted by final judgment for violating his oath of
allegiance to the Republic.
D. Those with dual citizenship--The phrase dual citizenship
in RA 7160, Sec. 40 (d) and RA 7854, Sec. 20 must be
understood as referring to dual allegiance. Consequently,
persons with mere dual citizenship do not fall under this
disqualification. For candidates with dual citizenship, it
should suffice if, upon the filing of their certificates of
candidacy, they elect Philippine citizenship to terminate
their status as persons with dual citizenship considering
that their condition is the unavoidable consequence of
conflicting laws of different states. (Mercado vs. Manzano,
307 SCRA 630)
E. Fugitives from justice in criminal or non political cases.
F. The term includes not only those who flee after conviction
to avoid punishment, but likewise who, after being
changed, flee to avoid prosecution. (Marquez vs.
COMELEC, 243 SCRA 538)
G. Permanent residents in foreign country or those who have
the right to reside abroad and continue to avail of it. (Caasi
vs. CA, 191 SCRA 229)
H. The insane or feeble minded.
Three consecutive terms limit
The term limit for elective local officials must be taken to
refer to the right to be elected as well as the right to serve in the
same elective position. Consequently, it is not enough that an
individual has served three consecutive in an elective local office, he
must also have been elected to the same position for the same
number of times before the disqualification can apply: (Borja vs.
COMELEC, GR No. 133495, September 3, 1998)
Conditions for the application of the disqualification: (1) the
official concerned has been elected for three consecutive terms in
the same local government post and (2) that he has fully served
three consecutive terms . . .
A proclamation subsequently declared void is no
proclamation at all and while a proclaimed candidate may assume
office on the strength of the proclamation of the Board of Canvassers
he is only a presumptive winner who assumes office subject to the
final outcome of the election protest . .
Voluntary renunciation of a term of office does not cancel
the renounced term in the computation of the three term limit;
conversely involuntary severance from the office for any length of
time short of the full term provided by law amounts to an interruption
of continuity of service. (Lonzanida vs. COMELEC, 311 SACRA 602)
ZPG & Associates
1. Under the Revised Administrative Code Municipal Office
Ecclesiastics (Pamil vs. Teleron, 56 SCRA 413)
Persons receiving compensation from provincial
or municipal funds
Contractors for public works of the municipality
2. Under the Lone candidate Law RA 8295
Any elective official who has resigned from his office
by accepting an appointive office to become
vacant due to his resignation; and
Any person who, directly or indirectly coerces, bribes,
threatens, harasses, intimidates or actually
causes, inflicts or produces any violence, injury,
punishment, torture, damage, loss or
disadvantages to any person or persons aspiring
to become a candidate or that of the immediate
member of his family, his honor or property that
is meant to eliminate all other potential
candidates.
Certificates of Candidacy
No person shall be eligible for any elective public unless he
files a sworn certificate of candidacy within the period fixed by the
Omnibus Election Code.
Deadline
Certificate of candidacy must be filed not later than the day
before the date for the beginning of the campaign period.
(Sec. 7, RA 7166)
A certificate filed beyond the deadline is not valid. (Gador
vs. COMELEC, 95 SCRA 431)
Prohibition against multiple candidacies
A person who files a certificate of candidacy for more than
one office should be eligible for any of them. (Sec 73, BP
881)
Before the deadline for filing certificates he may withdraw
all expect one, declaring under oath the office for which he
desires to be eligible and cancel the certificate of
candidacy for other office or offices. (Go vs. COMELEC,
GR No. 147741, May 10, 2001)
Forms
Oath
The certificate must be sworn. (Sec. 73, BP 881)
The election of a candidate cannot be annulled because of
formal defects in his certificate, such as held of oath
(Guzman vs. Board of Canvassers, 48 Phil 211)
Name
A candidate shall use his baptismal name or full name, the
name registered with the civil registrar or any other name
allowed by law.
He may include one nickname or stage name by which he
is generally known.
When two or more candidates for the same office have the
same name or surname, each shall state his paternal and
9
maternal surnames, except the incumbent (See. 71, BP
881)
Place and Period of Filling
For President, Vice President and Senators: main office of
the COMELEC in Manila, 5 copies, not later than 90 days
before date of election.
For Members of the House of Representatives:
Provincial legislative districts Provincial Election
Supervisor of the Province concerned
NCR legislative districts Regional COMELEC Directors
Legislative districts in cities outside NCR City Election
registrar concerned
For provincial offices Provincial Election Supervisor of the
province concerned.
City and Municipal offices City or Municipal Election
Registrar concerned.
The certificates of candidacy of Members of the House of
Representatives, Provincial, city or municipal officials shall
be filed in 5 copies not later than 45 days before the
election.
The certificate of candidacy shall be filed by the candidate
personally or his duly authorized representative. No
certificate of candidacy shall be filed or accepted by mail,
telegram or facsimile.
The evident purpose of the law in requiring the filing of
certificate of candidacy and in fixing the time limit therefore
are; (1) to enable the voters to know, at least sixty days
before the regular election, the candidates among whom
they are to make the choice, and (2) to avoid confusion and
inconvenience in the tabulation of the votes to the duly
registered candidates, there might be as many persons
voted for as there are voters, and votes might be cast even
for unknown or fictitious persons, as mark to identify the
votes in favor of a candidate for another office in the same
election. (Miranda vs. Abaya, 311 SCRA 617)
Duty of COMELEC
Subject to its authority over nuisance candidates and its
power to deny due course or cancel a certificate of
candidacy, the rule is that the COMELEC shall have only
the ministerial duty to receive and acknowledge receipt of
the certificates of candidacy. (Sec. 78, BP 881)
Effect Filing
An appointive public official is considered resigned upon
filing of his certificate. (Sec. 66, BP 881;Sanciangco vs.
Rono, 137, SCRA 671).This includes an employs of a
GOCC organized under the Corporation Code (Without
original charter), since the law makes no distinction.
(PNOC EDC vs. NLRC, 222 SCRA 831)
Any elective official, whether national or local who has filed
a certificate of candidacy for the same or any other office
shall not be considered resigned from office. (sec. 26,
COMELEC Resolution No. 3636, Rules and Regulations
Implementing RA 9006)
Withdrawal of Certificate of Candidacy
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Form written declaration under oath. There was no withdrawal
of candidacy for the position of mayor where the candidate,
before the deadline for filing certificates of candidacy,
personally appeared in the COMELEC office, asked for his
certificate of candidacy and intercalated the word vice
before the word mayor and the following day wrote the
election registrar saying that his name be included in the
list of official candidates for mayor. (Vivero vs. COMELEC,
L 81059, Jan 12, 1989)
Since his certificate of candidacy for the office of board
member was filed by his party, and the said party had
withdrawn the nomination which withdrawal was confirmed
by the candidate under oath, there was substantial
compliance with Sec. 73. His filing under oath within the
statutory period of his individual certificate for candidacy for
the separate office of mayor was, in effect, a rejection of
the party nomination on his behalf for the office of board
member. (Ramirez vs. COMELEC, L-81150, Jan 12, 1992)
Substitution of Candidacy Sec. 77 BP 881; Sec. 12, RA 9006
If after the last day for filing certificates, a candidate dies,
withdraws or is disqualified, he may be substituted by a
person belonging to his party not later than the mid day
of election. Said certificate may be filled with any board of
election inspectors in the political subdivision where he is
an electorate of the country, with the COMELEC. (Domingo
vs. City Board of Canvassers, GR No. 105365, June 2,
1992)
Even if the withdrawal was not under oath, the certificate of
the substitute cannot be annulled after the election. Such
technicality of the original candidates withdrawal of his
certificate of candidacy cannot be used to override the
peoples will in favor to the substitute candidate. The legal
requirement that the withdrawal be under oath will be held
to be merely directory and the candidates failure to
observe the requirement is considered a harmless error.
Hence the bona fide certificate of the substitute candidate
cannot be assailed. The votes in his favor should be
counted. (Villanueva vs. COMELEC, 140 SCRA 352)
In case of valid substitutions after the official ballot have
been printed, the votes cast for the substituted candidates
shall be considered as many votes but shall not invalidate
the whole ballot. For this purpose, the official ballots shall
provide spaces where the voters may write the name of
substitute candidates if they are voting for the latter. (See.
12, RA 9006)
There is nothing in the Constitution or statute which
requires as condition precedent that a substitute candidate
must have been a member of the party concerned for a
certain period of time before he can be nominated as such.
(Sinaca vs. Mula, 315 SCRA 266)
A valid certificate of candidacy is likewise an indispensable
requisite in the case of a substitution of a disqualified
candidate under the provisions of Sec. 77 of the Election
Code . . . The concept of a substitute presupposes the
existence of the person to be substituted, for how can a
person take the place of somebody who does not exist or
who never was...
A disqualified candidate may only be substituted if he had a
valid certificate of candidacy in the first place because, if
the disqualified candidate did not have a valid and
seasonably filed certificate of candidacy, he is and was not
a candidate at all. If a person was not a candidate, he
cannot be substituted under Sec. 77 of the Code . . . .
10
While Sec. 78 of the Election Code enumerated the
occasion where a candidate may validly substitute 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 (Miranda vs. Abaya, 311
SCRA 617)
In case of valid substitutions after the official ballots have
been printed, the votes cast for the substituted candidates
shall be considered as stray votes but shall not invalidate
the whole ballot. Sec. 12, RA 9006. amending Sec. 12 of
RA 8436)
DISQUALIFICATION OF CANDIDATES
1. Grounds
Violation of Omnibus Election Code Sec. 68
Giving money or other material consideration to
influence voters or public officials performing
electoral functions
Committing acts of terrorism to enhance his candidacy
Spending in his election campaign in excess of the
amount allowed by the Code
Soliciting, receiving or making any prohibited
contribution
Violations of Secs. 80, 83, 85, 86 and 261, paragraphs
d, e, k, v and cc, sub-paragraph 6.
Nuisance candidate Sec. 69
A petition to disqualify a candidate for councilor for failure to indicate
in his certificate of candidacy the precinct number and the barangay
as a registered voter cannot be considered a petition to disqualify
him for being a nuisance candidate, since his certificate was not filed
to make mockery of the election or to confuse the voters. (Jurilla vs.
COMELEC, 232 SCRA 758)
Falsity of material representation in certificate of candidacy.
Sec. 78
The COMELEC has jurisdiction over a petition to disqualify a
candidate for congressman for ineligibility before he has been
proclaimed and has assumed office (Marcos vs. COMELEC, 248
SCRA 300; Aquino vs. COMELEC, 248 SCRA 400)
2. Procedure for disqualification of candidates
The petition shall be filed by any registered candidate
for the same Office within 5 days from the last day of
filing of certificates of Candidacy. (Secs. 5a and 7, RA
6646)
Under the election laws and the COMELEC Rules of
Procedure, any voter may file a petition to disqualify a
candidate on grounds provided by law. (Torayno
vs.COMELEC, 337 SCRA 574)
The fact that no docket fee was initially paid is not fatal.
The Procedural defect as cured by the subsequent
payment of the docket fee. (Sunga vs. COMELEC, 228
SCRA 76)
A petition filed after the election is filed out of time. (Loong
vs.COMELEC, 216 SCRA 769)
Since the filing by facsimile transmission is not sanctioned
and a facsimile copy is not an original pleading, a petition
for disqualification should be deemed filed upon the filing of
the original petition. (Garvida vs. Sales, 271 SCRA 764)
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Where a qualified candidate was replaced on the day
before the election, a petition to disqualify the replacement
filed on election day should be entertained, as it was
impossible to file the petition earlier. (Abella vs. Larrazabal,
180 SCRA 509)
The COMELEC may motu propio refuse to give due
course or cancel a certificate of candidacy. (Sec. 69,
BP 881)
The proceeding shall be summary. (Nolasco vs.
COMELEC, 275 SCRA
762)
The COMELEC can decide a disqualification case directly
without referring it to its legal officers for investigation.
(Nolasco, supra)
The decision shall be final and executory after 5 days
from receipt unless stayed by the Supreme Court
[Secs. 5(e) and 7, RA 6646]
EFFECTS OF DISQUALIFICATION CASE
After final judgment -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.
Before final judgment 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 tendency thereof,
order the suspension of the proclamation of such candidate
whenever the evidence of guilt is strong. (Sec. 6, RA 6646)
The purpose of a disqualification proceeding is to prevent
the candidate from running or, if elected, from serving, or to
prosecute him for violation of election laws. The fact that a candidate
has been proclaimed and had assumed the position to which he was
elected does not divest the COMELEC of authority and jurisdiction to
continue the hearing and eventually decide the disqualification. The
COMELEC should not dismiss the case simply because the
respondent has been proclaimed. (Sunga vs. COMELEC, 288 SCRA
76 and Lonzanida vs. COMELEC, 311 SCRA 617)
Sec. 6 of RA 6616 authorizes the continuation of
proceedings for disqualification even after the elections if the
respondent has not been proclaimed. (Perez vs. COMELEC, 317
SCRA 641)
A disqualification case may have two aspects, the
administrative, which required only a preponderance of evidence to
prove disqualification, and the criminal, which necessitates proof
beyond reasonable doubt to convict.
There is no provision in RA 6646 that treats of a situation
where the complaint for disqualification is filed after the election. . . .
Second paragraph of paragraph 2 of Res. No. 2050
provides that where a complaint is filed after the election but before
proclamation, as in this case, the complaint must be dismissed as a
disqualification case but shall be referred to the Law Department for
preliminary investigation.
Why there is a difference between a petition for
disqualifications before and after the election proceeds from the fact
that before the electorate and those who vote for the candidate
assume the risk that should said candidate be disqualified after the
election, their votes would be declared stray or invalid votes and that
11
would not be true in the case of one filed after the electorate has
already voted . . . (Bagatsing vs. COMELEC, 320 SCRA 817)
The COMELEC can legally suspend the proclamation of
the winning candidate although he received the winning number of
votes.(Labo vs. COMELEC, 211 SCRA 297).
The use of the word may, indicates that the suspension of
the proclamation is merely directory and permissive in nature and
operates to confer discretion. What is made mandatory is the
continuation of the trial and hearing of the action, inquiry or protest.
Since the suspension of the proclamation is merely permissive, the
proclamation of a candidate is valid, if the COMELEC did not
suspend his proclamation. (Grego vs. COMELEC, 274 SCRA 481)
Under the same provision, intervention may be allowed in
proceedings for disqualification even after election if there has yet no
final judgment rendered. (Mercado vs. Mazano, 307 SCRA 630)
Where the votes cast for a nuisance candidate whose
disqualification had not yet become final on election day were tallied
separately, they should be counted in favor of the petitioner.
(Bautista vs. COMELEC, 298, SCRA 480)
THE LONE CANDIDATE LAW
The Lone Candidate Law is RA 8295, enacted June 6,
1997. Section 2 thereof provides the upon the expiration of the
deadline for the filing of certificate of candidacy in a special election
called to fill a vacancy in an elective position other than for President
and Vice-President, when there is only one (1) qualified candidate for
such position, the lone candidate shall be proclaimed elected to the
position by proper proclaiming body of the COMELEC that he is the
only candidate for the office and is thereby deemed elected.
Section 3 thereof also provides that the lone candidate so
proclaimed shall assume office not earlier than the scheduled
election day, in the absence of any lawful ground to deny due course
or cancel the certificate of candidacy in order to prevent such
proclamation.
VI. CAMPAIGN; ELECTION PROPAGANDA; CONTRIBUTIONS
AND EXPENDITURES
Election campaign or partisan political activity refers to an act
designed to promote the election or defeat of a particular candidate
or candidates for public office. (Sec. 79, BP 881)
a. If done for the purpose of enhancing the chances of
aspirants for nomination for candidacy to a public office by
a political party, etc, it shall not be considered as election
campaign or partisan political activity.
b. It shall be unlawful for any person or any party to engage in
election campaign or partisan political activity except during
the campaign period.
c. Members of the Civil Service to engage, directly or
indirectly, in any electioneering or partisan political
campaign.
A. Nomination of candidates
1. President, Vice-President and Senators not earlier than
165 before election date
2. Congressmen, provincial, city or municipal officials not
earlier than 75 days before election day
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B. Campaign period 3. Use of airtime for campaign of a media practitioner who is

an official of a party or a member of the campaign staff of a
1. President, Vice-President and Senators 90 days before candidate or political party.
election day
Scope
2. Congressmen, provincial, city and municipal officials 45
days before election day. 1. Prohibiting the posting of decals and stickers except in the
common posting area authorized by the COMELEC is not
C. Lawful propaganda valid (Adiong vs. COMELEC, 244 SCRA 272)

1. Forms 2. Mass media may report news relating to candidates, and

mass media practitioners may give their opinion regarding
2. Pamphlets, leaflets, cards, decals, stickers and written or candidates. (National Press Club vs. COMELEC, 207
printed materials not more than 8 inches by 14 inches SCRA 1)

3. Handwritten/printed letters E. Rallies

4. Cloth, paper or cardboard, posters measuring, not more 1. An application for permit for a rally shall not be
than 2 feet by 3 feet 3 by 8 ft. allowed in announcing at the denied except on the
site on the occasion of a public meeting or rally, may be ground that a prior written application for the
displayed 5 days before the date of rally but shall be same purpose has been approved. A denial
removed within 24 hours after said rally. is appealable to the provincial election supervisor or
COMELEC. (Sec. 87, BP 881)
5. Paid print advertisements: page in broadsheets and 2. It is unlawful to give or accept transportation,
pages in tabloids thrice a week per newspaper, magazine food, drinks or things of
or other publication during the campaign period. (Sec. 4, value within 5 hours before and after a public
RA 9006) rally, before election day and on election
day. (Sec. 89 BP 881)
6. Broadcast Media(i.e., TV and radio) National Positions: 120
minutes for TV, 180 minutes for radio / Local Positions: 60 F. Prohibited donations
minutes for TV, 90 minutes for radio It is prohibited for any candidate, his spouse,
relative within second degree of consanguinity or affinity, or
7. Other forms of election propaganda not prohibited by the representative to make any contribution for any structure
Omnibus Election Code and RA 9006, and authorized by for public use or for use of any religious or civic
the COMELEC. organization except the normal religious dues and payment
for scholarships established and school contributions
Requirement habitually made before the campaign period. (Sec. 104, BP
881)
1. Any published or printed political matter or broadcast of
election propaganda by television or radio for or against a G. Prohibited contributions
candidate or group of candidates to any public office shall No political contribution shall be made by the
bear and be reasonably legible or audible words political following:
advertisement paid for, followed by the true and correct 1. Public or private financial institutions
name and address of the candidate or party for whose 2. Public utilities and those who exploit natural
benefit the election propaganda was printed or aired. resources

2. If the broadcast is given free or charge by the radio or Thus, where an operator of a public
television station, it shall be identified by the word airtime utility disguised a contribution to a candidate for
for this broadcast was provided free of charge by followed governor as loan, the promissory note is void:
by the true and correct name and address of the broadcast (halili vs. Court of Appeals, 83 SCRA 633)
entity.
3. Persons who hold contracts or sub-contracts to
3. Print, broadcast or outdoor advertisements donated to the supply the government
candidate or political party shall be printed, published, with goods and services.
broadcast or exhibited without the written acceptance by 4. Persons granted franchises, incentives,
the said candidate or political party. Such written exemptions or similar privileges by
acceptance shall be attached to the advertising contract the government
and shall be submitted to the COMELEC. (Sec. 4, RA 5. Persons granted loans in excess of P25, 000 by
9006) the government or any of
its subdivisions or instrumentalities
D. Prohibited Campaign 6. Schools which received grants of public funds of
at least P100,000
1. Public exhibition of a movie, cinematograph or 7. Employees in the Civil Service or members of the
documentary portraying the life or biography of a candidate Armed Forces.
during campaign period.\ 8. Foreigners (Sec. 95 , Bp 881)
9. Corporations (sec. 36 (9), Corp. Code)
2. Public exhibition of a movie, cinematograph or
documentary portrayed by an actor or media personality H. Equal Access to Media Time and Space
who is himself a candidate; All registered parties and bonafide candidates
shall have equal access to media time and space . The
following guidelines may be amplified on by the
COMELEC.
ZPG & Associates 13

1. No franchise or permit to operate a radio or 3. Recall election is an election by means of which voters
television shall be granted or decide whether they should retain their local official or elect his
issued, suspended or cancelled during the replacement. (Claudio vs. COMELEC, 331 SCRA 388)
election period.
2. Any mass media columnist, commentator, ELECTION PERIOD
announcer, reporter, on-air Unless otherwise fixed by the COMELEC in special cases,
correspondent or personality who is a candidate the election period shall commence 90 days before the day of the
for any elective public office or is a campaign day of the election and shall end 30 days thereafter.[Sec. 9, Art. IX
volunteer for or employed or retained in any capacity C, PC]
by any candidate or political party shall be deemed
resigned, if so required by their employers, or shall DATE OF ELECTION
take a leave of absence from his work as such during the The regular election of the President, Vice-President,
campaign. And that any media practitioner who is an Senators and Members of the House of Representatives and local
official candidate of a political party or member of officials, except barangay officials, shall be on the second Monday of
the campaign staff of a candidate or May once every three years. In accordance with the constitutional
political party shall not use his media time and space to policy to synchronize elections, the regular election for national and
favor any candidate or political party. local officials is now held simultaneously. (RA 7166) Under 6679,
regular elections for barangay officials shall be held once every five
I. Limitation on expenses Sec. 13, RA 7166 years.
1. Candidates
a. President and vice president P10 per ELECTION OF SANGGUNIANG MEMBERS
voter 1. For provinces with two or more legislative district the
b. Other candidates P3 per voter in his elective members of
constituency Sangguniang Panlalawigan (Spn) shall be elected by
c Candidate without political party P5 legislative districts.
per voter 2. For provinces with only one legislative district the
d. Party/organization and coalition COMELEC shall divide
participating in the party list them into districts for purposes of electing the members of
system P5 per voter the SPn;
3. For cities in Metro Manila Area, Cebu City, Davao City or
2. Political party and coalition P5 per voter in the any other city with
constituency where it has two or more legislative district governed by Secs. 2 and 3
candidates. (sec. 13, RA 7166) of RA 6686.
4. For municipalities in Metro Manila the COMELEC shall
J. Statement of contributions and expenditures divide them into two
1. Filing districts by barangay for purposes of electing members of
a. every candidate and treasurer of the SB.
political party shall file within 30 days after election day a statement
of contributions and expenditures. POSEPONEMENT OF ELECTION
b. No persons elected shall assume office When for any serious cause such as violence, terrorism,
until he and his political party has filed the loss or destruction of election paraphernalia or records, force
required statements majeure, and other analogous cases of such nature that the holding
of a free, orderly and honest election should become impossible in
2. Penalties any political subdivision, the COMELEC, motu propio or upon a
a. First Offense administrative fine from verified petition by any interested party, and after due notice and
P 1,000 to P30, 000 hearing, whereby all interested parties are afforded equal opportunity
b. Subsequent offense to be heard, shall postpone the election therein. (Sec. 5, BP 881)
i. Administrative fine from
P2,000 to P60, 000 An election officer alone, or even with the agreement of the
ii. Perpetual disqualification to candidates, cannot validly postpone or suspend the election. (Basher
hold public office (Sec. 14, vs. COMELEC, 330 SCRA 736). . . It is essential to the validity of the
RA 7166) election that the voters have notice in some form, either actual or
constructive, of the time, place and purpose thereof (Basher vs.
3. Effect of withdrawal COMELEC, supra)
A candidate who withdraws his
certificate of candidacy must still file a statement A petition to postpone elections should be addressed to the
of contributions and expenditures, for the law COMELEC, subject to the remedy of review provided for in Art IX A
makes no distinction. (Pilar vs. COMELEC, 245 Section 7.
SCRA 759)
In fixing the date of special elections the COMELEC should see to it
VII. ELECTION; BOARD OF ELECTION INSPECTORS (BEI); that:
WATCHERS 1. It should not be later than thirty (30) days after the
secession of the cause of the
KINDS OF ELECTION Postponement of suspension of the election or a failure to
1. General election is one provided for by law for the election elect; and
to offices throughout 2. It should be reasonably close to the date of the election not
the State, or certain subdivisions thereof, after the held, suspended or
expiration of the full term of former officers. Which resulted in the failure to elect.(Pangandaman vs.
2. Special Election is one provided for by law to fill vacancy in COMELEC, 319 SCRA 283)
office before the expiration of the full term for which the incumbent
was elected or one fixed by the COMELEC due to postponement or A special election is not valid if notice of its date and of the
suspension of the election or the failure to elect. transfer of the precincts was given less than a day before, since the
ZPG & Associates
voters were deprived of the opportunity to vote. (hassan vs.
COMELEC, 264 SCRA 125)
FAILURE OF ELECTION
1. Sec.6 the OEC contemplates three instances when the
COMELEC may declare a failure of election and call for the holding
of a special election: (1) when thee election in any polling place has
not been held on the date fixed on account of force majeure,
violence, terrorism, fraud and other analogous cases, (2) when the
election in any polling place has been suspended before the hour
fixed by law for the closure of the voting; and (3) after the voting and
during the preparation and transmission of the election returns or in
the custody or canvass thereof, such election results in a failure to
elect. (Soliva et al vs. COMELEC, GR No. 141723, April 20,2001)
2. The power to throw out or annul an election should be
exercised with the utmost care and only under circumstances which
demonstrate beyond doubt either that the disregard of the law had
been so fundamental or so pertinent and continuous that it is
impossible to distinguish what votes are lawful and what are
unlawful, or to arrive at any certain result whatsoever, or that the
great body of voters have been prevented by viiolence, intimidation
and threats from exercising their franchise There is failure of
elections only when the will of the electorate has been muted and
cannot be ascertained. (Benito vs. COMELEC, GR No.
134913,January 19,2001)
3. A special election should be held if the ballot box in the
precinct was burned.(Hassan vs. COMELLEC,264 SCRA 125)
4. The destruction of the copies of the election returns
intended for the board of canvassers is not a ground for the
declaration of failure of election as other copies of the returns can be
used (Sardea vs. COMELEC,225 SCRA 374)
5. The fact that less than 25% of the registered voters voted
does not constitute failure of election, since voting took place.
(Mitmug vs. COMELEC,230 SCRA 54)
6. Lack of notice of the date and time of the canvass, fraud,
violence, terrorism, and analogous causes, such as
disenfranchisement of voters, presence of flying voters, and lack of
qualifications of the members of the Board of Inspectors are not
grounds for declaration of failure of election but for an election
protest. (Borja vs. COMELEC,260 SCRA 604)
7. The fact that the names of some registered voters were
omitted from the list of voters, strangers voted for some of the
registered voters, a candidate was credited with less votes than he
received, the control data of some election returns were filled up, the
ballot boxes were brought to the municipal hall without padlock and
seals, and that there was a delay in the delivery of election returns
are not grounds for the declaration of failure of election. (Canicosa
vs. COMELEC, 282 SCRA 512)
8. An election cannot be annulled because of the illegal
transfer of a precinct less than 45 days before the election if the
votes of those who were not able to vote will not alter the result.
(Balindong vs. COMELEC, 260 SCRA 494)
9. There is no reglementary period for filing a petition for
annulment of an election if there has as yet been no proclamation.
(Loong vs. COMELEC, 257 SCRA 1)
10. The COMELEC may decide a petition to declare a failure of
election en banc at the first instance, since it is not a pre-
proclamation case or an election protest. (Borja vs. COMELEC, 260
SCRA 604)
In petitions to declare a failure of election on the ground of fraud, the
COMELEC may conduct a technical examination of
election documents and compare and analyze the
14
signatures and fingerprints of the voters. (Loong vss.
COMELEC,257 SCRA 1)
SPECIAL ELECTION TO FILL UP VACANCY
1. In case of permanent vacancy in Congress at least one
year before the expiration of the term, the COMELEC shall hold a
special election not earlier than 90 days after the occurrence of the
vacancy.
2. A vacancy in the Senate will be filled up at the next regular
election.(Section 4,RA 7166)
BOARD OF ELECTION INSPECTORS (BEI)
The Board of Election Inspectors shall be composed of a chairman
and two members, all of whom are public school teachers.
If there are not enough public school teachers, teachers in private
schools, employees in the civil service, or other citizens of
known probity and competence may be appointed. (Section
13, RA 6646)
WATCHERS
Number
1. Official watchers
Every registered party or coalition of parties and
every candidate is entitled to one watcher
per precinct and canvassing counter.
Candidates for the local legislature belonging to
the same party are entitled collectively to
one watcher.
Six principal watchers from 6 accredited major
political parties shall be recognized. (Section
26, 7166)
2. Other watchers
a. The accredited citizens arm is entitled to a
watcher in every precinct.
b. Other civic organizations may be authorized to
appoint one watcher in
every precinct. (Section 180, BP 881)
Important rights of watchers
1. All watchers
a. To stay inside the precinct
b. To inform themselves of the proceedings
c. To file a protest against any irregularity
d. To obtain a certificate of the number of
votes cast for each candidate (Section 179,
BP881)
2. Citizens Arm
To be given a copy of the election return to be
used for the conduct of an unofficial count. (Section 1, RA
8045)
VIII. CASTING OF VOTES
1. The chairman of the Board of Election Inspectors should
sign each ballot at the back. The omission of such signature does not
affect the validity of the ballot.(Libanan vs HRET,283 SCRA 520)
Under the rules prevailing during the 1997 Barangay Elections, the
failure to authenticate the ballots shall no longer be cause for the
invalidation thereof. (Malabaguio vs. COMELEC,346 SCRA 699)
2. A voter who was challenged on the ground that he has
been paid for the vote or made a bet on the result of the election will
be allowed to vote if he takes an oath that he did not commit the act
alleged in the challenge. (Section 200,BP881)
3. An illiterate or physically disabled voter may be assisted by
a relative by affinity or consanguinity within the fourth degree or any
person of his confidence who belongs to the same household or any
member of the Board of Election Inspectors. (Section 196, BP881)
4. It is unlawful to use carbon paper, paraffin paper or other
means for making a copy of the contents of the ballot or to use any
means to identify the ballot.(Sec. 195,BP881). A ballot prepared
under such circumstances should not be counted. (Gutierrez vs.
Aquino, Feb,26,1959)
 ZPG & Associates
ABSENTEE VOTING
1. Members of the Board of Election Inspectors and their
substitutes may vote in the precinct where they are assigned.
(Section 169, BP 881)
2. Absentee voting for President, V-president and Senators
are allowed for members of the AFP, PNP, and other government
employees assigned in connection with the performance of election
duties to places where they are not registered. (Section 12, RA
7166)
RA NO. 9189 AN ACT PROVIDING FOR A SYSTEM OF
OVERSEAS ABSENTEE VOTING BY QUALIFIED CITIZENS OF
THE PHILIPPINES ABROAD
Sec. 5. Disqualification. The following shall be disqualified from
voting under this Act:
a) Those who have lost their Filipino citizenship in accordance
with Philippine laws;
b) Those who have expressly renounced their Philippine citizenship
and who have pledge allegiance to a foreign country;
c) 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 been found guilty of Disloyalty as define
under Article 137 of the Revised Penal Code, 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
or reciprocity and subject to the formalities and processes
prescribed by the Rules of court on execution of judgments;
d) An immigrant or a permanent resident who is recognized as such
in the host country, unless he/she execute, upon registration,
an affidavit prepared for the purpose by the Commission
declaring that he/ she shall resume actual physical permanent
residence in the Philippine not later than three(3) years from
approval of his/her registration under this Act. Such affidavit
shall also state that she/ he has no applied for citizenship in
another country. Failure to return shall be cause for the removal
of the name of immigrant or permanent resident from the
National Registry of Absentee Voters and his/her permanent
disqualification to vote in absentia.
e) 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.
SEC. 6 Personal Overseas Absentee Registration. Registration as
an overseas absentee voter shall be done in person.
Qualified citizens of the Philippines abroad who failed to register
under Republic Act No. 8189, otherwise known as The Voters
Registration Act of 1996, may personally apply for registration with the
Election Registration Board of the city or municipality where they were
domiciled immediately prior to their departure from the Philippines, or
with the representative of the Commission of the Philippine embassies,
consulates and other foreign service establishments that have
jurisdiction over the locality where they temporarily reside. Subject to
guidelines herein provided, the Commission is hereby authorized to
15
prescribe procedures for overseas absentee registration pursuant to the
provisions of Republic Act No. 8189, whenever applicable, taking into
strict consideration the time zones and the various periods and
processes herein provided for the proper implementation of this Act.
The embassies, consulates and other foreign service establishments
shall transmit within five (5) days from receipt the accomplished
registration forms to the Commission after which the Commission shall
coordinate with the Election Officer of the city or municipality of the
applicants stated residence for verification, hearing and annotation in
the permanent list of voters.
All applications for the May 2004 elections shall be filed
with the Commission not later than two hundred eighty (280) calendar
days before the day of elections. For succeeding elections, the
Commission shall provide for the period within which applications to
register must be filed.
In the case of seafarers, the Commission shall provide a
special mechanism for the time and manner of personal registration
taking into consideration the nature of their work.
6.1 Upon receipt of the application for registration, the
Election Officer shall immediately set the application
for hearing, the notice of which shall be posted in a
conspicuous place in the premises of the city or
municipal building of the applicants stated residence
for at least one (1) week before the date of the
hearing. The Election Officer shall immediately furnish
a copy of the application to the designated
representatives of political parties and other
accredited groups.
6.2 If no verified objection to the application is filed, the
Election Officer shall immediately forward the
application to the Election Registration Board, which
shall decide on the application within one (1) week
from the date of hearing without waiting for the
quarterly meeting of the Board. The applicant shall be
notified of the approval or disapproval of his/her
application by registered mail.
6.3 In the event that an objection to the application is
filed prior to or on the date of hearing, the Election
Officer shall notify the applicant of said objection by
registered mail, and closing therein copies of
affidavits or documents submitted in support of the
objection filed with the said Election Officer, if any.
The applicant shall have the right to file his counter-
affidavit by registered mail, clearly stating therein
facts and defenses sworn before any officer in the
host country authorized to administer oaths.
6.4 The application shall be approved or disapproved
based on the merits of the objection, counter-affidavit
and documents submitted by the party objecting and
those of the applicant.
6.5 A Certificate of Registration as an overseas absentee
voter shall be issued by the Commission to all
applicants whose applications have been approved,
including those certified as registered voters. The
Commission shall include the approved applications
in the National Registry of Absentee Voters.
6.6 If the application has been approved, any interested
party may file a petition for exclusion not later than
two hundred ten (210) days before the day of
elections with the proper municipal or metropolitan
trial court. The petition shall be decided within fifteen
(15) days after its filing on the basis of the documents
submitted in connection therewith. Should the court
fail to render a decision within the prescribed period,
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the ruling of the Election Registration Board shall be
considered affirmed.
6.7 If the application has been approved, the applicant or
his authorized representative shall, within a period of
five (5) days from receipt of the notice of this
approval, have the right to file a petition for inclusion
with the proper municipal or metropolitan trial court.
The petition shall be decided within five (5) days after
its filing on the basis of documents submitted in
connection therewith.
Qualified citizens of the Philippines abroad, who have
previously registered as voters pursuant to Republic Act No. 8189
shall apply for certification as absentee voters and for inclusion in the
National Registry of Overseas Absentee Voters, with a
corresponding annotation in the Certified Voters List.
Sec. 7. System of Continuing Registration. The
Commission shall ensure that the benefits of the system of
continuing registration are extended to qualified overseas absentee
voters. Towards this end, the Commission shall optimize the use of
existing facilities, personnel and mechanisms of the various
government agencies for purposes of data gathering, data validation,
information dissemination and facilitation of the registration process.
Pre-departure programs, services and mechanisms offered
and administered by the Department of Foreign Affairs, Department
of Labor and Employment, Philippine Overseas Employment
Administration, Overseas Workers Welfare Administration,
Commission on Filipinos Overseas and other appropriate agencies of
the government shall be utilized for purposes of supporting the
overseas absentee registration and voting processes, subject to
limitations imposed by law.
Sec.8 Requirements for Registration. Every Filipino
registrant shall be required to furnish the following documents:
a.) A valid Philippine passport. In the absence of a
valid passport, a certification of the Department
of Foreign Affairs that it has reviewed the
appropriate documents submitted by the
applicant and found them sufficient to warrant the
issuance of a passport, or that the applicant is a
holder of a valid passport but is unable to
produce the same for a valid reason;
b.) Accomplished registration from prescribed by the
commission containing the mandatory
information:
(i) Last know residence of the applicant in the
Philippines before leaving for abroad;
(ii) Address of applicant abroad, or forwarding
address in the case of seafarers;
(iii) Where voting by mail is allowed, the
applicants mailing address outside the
Philippines where the ballot for absentee
voters will be sent, in proper cases; and
(iv) Name and address of applicants authorized
representative in the Philippines for
purposes of Section 6.7 and Section 12
hereof.
c.) In the case of immigrants and permanent
residents not otherwise disqualified to vote
under this Act, an affidavit declaring the
intention to resume actual physical
permanent residence in the Philippines not
later than three (3) years after approval of
his/her registration as an overseas absentee
16
voter under this Act. Such affidavit shall also
state that he/she has not applied for
citizenship in another country.
The Commission may also require additional
data to facilitate registration and recording.
NO information other than those necessary
to establish the identity and qualification of
the applicant shall be required.
Sec. 11 Procedure for Application to Vote in Absentia.-
Every qualified citizen to the Philippines abroad whose application for
registration has been approved, including those previously registered
under Republic Act No. 8189, shall, in every national election, file
with the officer of the embassy, consulate or other foreign service
establishment authorized by the Commission, a sworn written
application to vote in a form prescribed by the Commission. The
authorized officer of such embassy, consulate or other foreign
service establishment shall transmit to the Commission the said
application to vote within five (5) days from receipt thereof. The
application form shall be accomplished in triplicate and submitted
together with the photocopy of his/her overseas absentee voter
certificate of registration.
Every application to vote in absentia may be done personally at, or
by mail to the embassy, consulate or foreign service establishment,
which has jurisdiction over the country where he/she has indicated
his/her address for purposes of th elections.
Consular and diplomatic services rendered in connection with the
overseas absentee voting processes shall be made available at no
cost to the overseas absentee voter.
Sec. 12 . Verification and Approval of Application to Vote.-
All applications shall be acted upon by the Commission upon
receipt thereof, but in no case later than one hundred fifty (150)
days before the day of elections. In the event of disapproval of the
application, the voter or his authorized representative may file a
Motion for Reconsideration with the Commission personally, or by
registered mail, within ten (10) days from receipt of the notice of
disapproval. The Commission shall act within five (5) days from
receipt of such Motion for Reconsideration and shall immediately
notify the voter of its decision. The decision of the Commission
shall be final and executory.
Sec. 16. casting and Submission of Ballot.-
16.1 Upon receipt by7 the designated officer of the embassy,
consulate and other foreign service establishments of the
ballots for overseas absentee voters, voting instruction,
election forms and other paraphernalia, he/she shall make
them available on the premises to the qualified overseas
absentee voters in their respective jurisdiction during the
thirty (30 ) days before the day of elections when overseas
absentee voters may cast their vote. Immediately upon
receiving it, the overseas voter must fill-out his/her ballot
personally, in secret, without leaving the premises of the
embassies, consulates and other Foreign Service
establishments concerned.
16.2 The overseas absentee voter shall personally accomplish
his/her ballot at the embassy, consulate or other foreign
service establishment that has jurisdiction over the
country where he/she temporarily resides or at any polling
place designated and accredited by the Commission.
16.3 The overseas absentee voter shall cast his ballot, upon
presentation of the absentee voter identification card
issued by the Commission, within thirty (30) days before
the day of elections. In the case of seafarers, they shall
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cast their ballots anytime within sixty (60) days before the
day of elections. In the case of seafarers, they shall cast
their ballots anytime within sixty (60) days before the day
of elections as prescribed in the Implementing Rules and
Guidelines.
16.4 All accomplished ballots received shall be placed
unopened inside sealed containers and kept in a secure
place designated by the Commission.
16.5 The embassies, consulates and other foreign service
establishments concerned shall keep a complete record
of the ballots for overseas absentee voters, specifically
indicating the number of ballots they actually received,
and in cases where voting by mail is allowed under
Section 17 hereof, the names and addresses of the voters
to whom these ballots were sent, including proof of receipt
thereof. In addition, the embassies, consulates and other
foreign service establishments shall submit a formal report
to the Commission and the Joint Congressional Oversight
Committee created under this Act within thirty (30) days
from the day of elections. Such report shall contain data
on the number of ballots cast and received by the officers
the number of invalid and unclaimed ballots and other
pertinent data.
16.6 The overseas absentee shall be instructed that his/her
ballot shall not be counted if it is not inside the special
envelope furnished him/her when it is cast.
16.7 Ballots not claimed by the overseas absentee voters at
the embassies, consulates and other foreign service
establishments, in case of personal voting, and ballots
returned to the embassies, consulates and other foreign
service establishments concerned, in the case of voting
by mail. Shall be cancelled and shipped to the
Commission by the least costly method within six (6)
months from the day of elections.
16.8 Only ballots cast, and mailed ballots received by the
Philippine embassies, consulates and other foreign
service establishments concerned in accordance with
Section 17 hereof before the close of voting open the day
of elections shall be counted in accordance with Section
18 hereof. All envelopes containing the ballots received
by the embassies, consulates and other foreign service
establishments after the prescribed period shall not b
opened, and shall be cancelled and shipped to the
Commission by the least costly method within six (6)
months from the day of elections.
16.9 A special Ballot Reception and Custody Group composed
of three (3) members shall be constituted by the
Commission from among the staff of the embassies,
consulates and other foreign service establishments
concerned including their attached agencies, and citizens
of the Philippines abroad, who will be deputized to receive
ballots and take custody of the same preparatory to their
transmittal to the Special Boards of Election Inspectors.
16.10 During this phase of the election process, the authorized
representatives of political parties, candidates, and
accredited citizens arms of the Commission shall be
notified in writing thereof and shall have the right to
witness the proceedings.
16.11 The Commission shall study the use of electronic mail,
internet, or other secured networks in the casting of votes,
and submit a report thereon to the Joint Congressional
Oversight Committee.
17
Sec. 17. Voting by Mail.
17.1 For the May 2004 elections, the Commission shall authorize by
voting mail in not more than three (3) countries, subject to the
approval of the Congressional Oversight Committee. Voting
by mail may be allowed in countries that satisfy the following
conditions:
a.) Where the mailing system is fairly
well-developed and secure to
prevent occasion for fraud;
b.) Where there exists a technically
established identification system
that would preclude multiple or
proxy voting; and
c.) Where the system of reception and
custody of mailed ballots in the
embassies, consulates and other
foreign service establishments
concerned are adequate and well-
secured.
Thereafter, voting by mail in any country
shall be allowed only upon review and
approval of the Joint Congressional
Oversight Committee.
17..2 The overseas absentee voter shall send his/her accomplished
ballot to the corresponding embassy, consular or foreign
service establishment that has jurisdiction over the country
where he/she temporarily resides. He/she shall be entitled
to cast his/her ballot at any time upon his/her receipt
thereof, provided that the same is received before the close
of voting on the day of elections. The overseas absentee
voter shall be instructed that his/her ballots shall not be
counted if not transmitted in the special envelope furnished
him/her.
17.3 Only mailed ballots received by the Philippine embassy,
consulate and other foreign service establishments before
the close of voting on the day of elections shall be counted
in accordance with Section 18 hereof. All envelopes
containing the ballots received by the embassies,
consulates and other foreign service establishments after
the prescribed period shall not be opened, and shall be
cancelled and disposed of appropriately, with a
corresponding report thereon submitted to the Commission
not later than thirty (30) days from the day of elections.
Sec. 23. Security Measures to Safeguard the Secrecy
and Sanctity of Ballots.- At all stages of the electoral process, the
Commission shall ensure that the secrecy and integrity of the ballots
are preserved. The Committees on Absentee Voting of the
Commission shall be responsible for ensuring the secrecy and
sanctity of the absentee voting process. In the interest of
transparency, all necessary and practicable measures shall be
adopted to allow representation of the candidates, accredited major
political parties, accredited citizens arms and non-government
organizations to assist, and intervene in appropriate cases, in all
stages of the electoral exercise and to prevent any and all forms of
fraud and correction.
Sec. 24. Prohibited Acts. In addition to the prohibited
acts provided by law, it shall be unlawful:
24.1 For any officer or employee of the Philippine
government to influence or attempt to influence any
person covered by this act to vote, or not to vote,
for a particular candidate. Nothing in this Act shall
be deemed to prohibit free discussion regarding
politics or candidates for public office.
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24.2 For any person to deprive any person of any right
secured in this act or to give false information as to
his/her name, address, or period of residence for
the purposes of establishing his/her eligibility or
ineligibility to register or vote under this act; or to
conspire with another person for the purpose of
encouraging the giving of false information in order
to establish the eligibility or ineligibility of any
individual to register or vote under this Act; or, to
pay, or offer to pa, or to accept payment either fro
application to vote in absentia or for voting.
24. 3 For any person to tamper with the ballot, the mail
containing the ballots for overseas absentee voters,
the election returns including the destruction,
mutilation and manipulation thereof.
24.4 For any person to steal, destroy, conceal, mutilate or
alter any record, document or paper as required for
purposes of this Act.
24.5 For any deputized agent to refuse without justifiable
ground, to serve or continue serving, or to comply
with his/her sworn duties after acceptance of his/her
appointments;
24.6 For any public officer or employee who shall cause
the preparations, printing, distribution of information
material, or post the same in website without the
prior approval of the Commission.
24.7 For any public employee to cause the transfer,
promotion, extension, recall of any member of the
foreign service corps, including members of the
attached agencies, or otherwise cause movement
of any such member from his current post or
position one (1) year before and three (3) months
after the days of elections, without securing the
prior approval of the Commission.
24.8 For any person who, after being deputized by the
Commission to undertake activities in connection
with the implementation of this Act, shall campaign
for or assist, in whatsoever manner, candidates in
the elections.
For any person who is not citizen of the Philippines to
participate by word or deed, directly or indirectly
through qualified organizations/associations, in any
manner and at any stage of the Philippine political
process abroad, including participation in the
campaign and elections.
The Provision of existing laws to the contrary
notwithstanding, and with due regard to the Principle of
Double Criminality, the prohibited acts described in this
section are electoral offenses and punishable in the
Philippines.
The penalties imposed under Section 264 of the
Omnibus Election Code, as amended, shall be imposed on
any person found guilty of committing any set of the
prohibited acts as defined I this section. Provided, that the
penalty or prision mayor in its minimum period shall be
imposed upon any person found guilty of Section 24.3
hereof without the benefit of the operation of the
Indeterminate Sentence Law. If the offender is a public
officer or a candidate, the penalty shall be prision mayor in
its minimum period. In addition, the offender shall be
sentenced to suffer perpetual disqualification to hold public
office and deprivation of the right to vote.
18
Immigrants and permanent residents who do not
resume residence in the Philippines as stipulated in their
affidavit under Section 5 (d) within three (3) years after
approval of his/her registration under this Act and yet vote
in the next elections contrary to the said section, shall be
penalized by imprisonment of not less than one (1) year,
and shall be deemed disqualified as provided in Section 5
(c) of this Act. His/her passport shall be stamped not
allowed to vote.
IX COUNTING OF VOTES
MANNER
1. The Board of Election Inspectors shall read the ballots
publicly and shall not postpone the count until it is completed.
(Section 206, BP 881)
2. The Board of Election Inspectors shall assume such
positions as to provide the watchers and the public unimpeded view
of the ballot being read. (Section 25, RA 7166)
3. If on account of violence or similar causes it becomes
necessary to transfer the counting of the votes to a safer place, the
BEI may effect the transfer by unanimous approval of the board and
concurrence of a majority of the watchers present. (Section 18,
RA6646)
4. Where a commotion resulted in suspension of the counting,
the BEI may recount the ballots. (Dayag vs. Alonzo)
SPECIAL PROBLEMS
1. Excess Ballots
If there are excess ballots, the poll clerk shall
draw out as many ballots equal to the excess without seeing them,
and the excess ballots shall not be counted. (Section 207, BP881)
2. Spoiled ballots
a. Ballots in the compartment for spoiled ballots are
presumed to be spoiled ballots.
If the BEI finds that a valid ballot was erroneously
deposited in the compartment for spoiled ballots.
It shall be counted. (Section 209, BP881)
3. Marked Ballot
a. Marked ballots shall not be counted (Section
208, BP881)
b. A ballot is considered marked in any of the
following cases:
The voter signed the ballot. (Ferrer
vs De Alban, 101 phil 10)
There were variations in the style of
writing
The name of a a candidate was
written more than twice
The voter wrote the names of well-
known public figures who are not
candidates such as actors,
actresses and national political
figures. (Protacto vs. De Leon, 9
SCRA 472)
The ballot contains irrelevant
expression.(Bautista vs.
Castro,206 SCRA 305). However,
the use of nicknames and
appellations of affection and
friendship, if accompanied by the
name of the candidate does not
annul the ballot except when it is
used to identify the voter. (Section
211 (13), BP811)
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c. Evidence aliunde is not necessary to prove a
ballot as marked. (Bacobo vs. COMELEC,191 SCRA 576)
d. a ballot in which a sticker was stuck by another
person to invalidate it should not be rejected. (Lerias vs.
HRET,202 SCRA 808)
RULES FOR APPRECIATION OF BALLOTS
1. A ballot in which the first name or surname of a candidate
is written should be counted for him, if there is no other
candidate with the same name. (Lerias vs. HRET,202
SCRA 808)
2. If only the first name of a candidate is written and it sounds
like the surname of another candidate, the vote shall be
counted in favor of the latter.
3. If there are two or more candidates with the same name
and one of them is incumbent, the vote shall be counted in
favor of the incumbent.
4. When two or more words are written on different lines
which are the surnames of two or more candidates with the
same surname of an office for which the law authorizes the
election of more than one, the vote shall be counted in
favor of all the candidates. With the same surname.
5. When the word written is the first name of one candidate
and the surname of another candidate, the vote shall be
counted for the latter.
6. If the ballot contains the first name of one candidate and
the surname of another, the vote shall not be counted for
either.
7. An incorrectly written name which sounds like the correctly
written name of a candidate shall be counted in his
favor(Bautista vs Castro,206 SCRA 606)
8. If the word written is the incidental name of two or more
candidates for the same office none of whom is incumbent,
the vote shall be counted in favor of the candidate who
belongs to the same ticket as all other candidates voted for
in the ballot for the same constituency.
9. The erroneous initial of the first name accompanied by the
correct surname of a candidate or the erroneous initial of
the same accompanied by the correct first name of a
candidate shall not annul the vote in his favor.
10. A ballot in which the correct first name but wrong surname
of a candidate is written or the correct surname but wrong
first name of a candidate is written ,shall not be counted in
his favor.
11. Where a candidate named Pedro Alfonso died on the eve
of the election and his daughter Irma Alfonso substituted
him, ballots in which the name Pedro alfonso was written
cannot be counted in her favor. (Afonso vs. COMELEC,232
SCRA 777)
12. If two or more candidates were voted for in an office for
which the law authorizes the election for only one, the vote
shall not be counted in favor of any of them.
19
13. If the candidate voted for exceed the number of those to be
elected, the votes for the candidates whose names were
firstly written equal to the number of candidates to be
elected shall be counted.
14. Even if the name of a candidate was written on the wrong
space, it should be counted if the intention to vote for him
can be determined, as when there is a complete list of
names of other offices written below his name or the voter
wrote the office for which he was electing the candidate.
(Cordero vs.Moscardon,132 SCRA 414)
STRAY BALLOT
Rule 14 of section 211 of the Omnibus Election Code
considers three kinds of votes as stray: (1) a vote containing initials
only,(2) a vote which is illegible, and ( 3) a vote which does not
sufficiently identify the candidate for whom it is intended. (Villarosa
vs. HRET,340 SCRA 396)
The rule is in favor of the validity of the ballot, not
otherwise The appearance of print and script writings in a single
ballot does not necessarily imply that two persons wrote the ballot
Paragraph 18,section 149 of the REC, provides that unless
it should clearly appear that it has been deliberately put by the voter
to serve as identification mark, the use of two or more kinds of writing
shall be considered innocent and shall not invalidate a ballot..
Under Section 211(19 ) of the OEC, any vote in favor of a
person who has not filed a certificate of candidacy or in favor of a
candidate for an office for which he did not present himself shall be
considered as an astray vote, but it shall not invalidate the whole
ballot The unexplained presence of prominent letters and words
written with remarkably good hand marked the ballots and must be
considered invalid
When in a space in the ballot there appears a name of
candidate that is erased and another clearly written, the vote is valid
for the latter incorrect spelling of a candidates name does not
invalidate the ballotfor even the most literate person is bound to
commit a mistake in spelling. (Ong vs. COMELEC, 347 SCRA 681)
CORRECTION OF RETURNS
1. Before the announcement of the results of the election in a
precinct, any correction or alteration in the election returns must be
initialed by all members of the BEI.
2. After the announcement of the results in a precinct, the
authorization of the COMELEC is needed to make any correction or
alteration.
a. If the petition is by all members of the BEI, the results of
the election will not be affected, and none of the candidate affected
objects, the COMELEC, upon being satisfied of the veracity of the
petition, shall order the correction.
If a candidate affected by the petition objects and the correction will
affect the results of the election, the COMELEC shall order a recount
of the votes, if it finds the petition meritorious and the integrity of the
ballot box has not been violated (section 216, BP 881)
WHAT CONSTITUTE AN ELECTION
Plurality of votes sufficient for choice
Not necessary that a majority of voters should vote
CERTIFICATE OF VOTES
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The BEI shall issue a certificate of the number of votes received by a c. Watchers have the right to accompany the
candidate upon request of a watcher. (Section 16, RA6646) members of the BEI and the election registrar during the delivery of
the election returns to the board of canvassers. (section 229, BP
The certificate of votes is admissible in evidence to prove anomaly in 881)
the election return when authenticated by testimony or documentary
evidence of at least two members of the BEI. RIGHTS OF CANDIDATES
1. Every registered political party and candidate is entitled to
one watcher in the canvassing center, but candidates for the local
X. CANVASSING AND PROCLAMATION legislative bodies belonging to the same party are entitled collectively
to one watcher. The fact that the watcher of a candidate was not
CANVASSING BODIES present when the canvassing was resumed because he was notified
1. Congress is not a ground to annul the canvass. (Quilala vs. COMELEC,188
a. President SCRA 902)
b. vice president 2. Any registered political party and candidate has the right to
2. COMELEC be present and to counsel
a. Senators a. only one counsel may argue for each party of candidate;
b. Regional Officials no dilatory action shall be allowed
3. Provincial board of canvassers
a. Congressman
b. Provincial officials 3. Problem areas
4. District Board of Canvassers in each legislative a. Lost return
district in Metro Manila i. If any election return has been lost, upon prior
a. Congressman authority of the COMELEC, the board of canvassers may
b. Municipal official use authentic copy of it or a certified copy of it issued by
5. City and Municipal Board of Canvassers the COMELEC(Section 233,BP 881). It is not necessary
a. Congressmen that all the other copies shall be considered.
b. City and municipal officials ii. If an election return is missing a recount should
6. Barangay Board of Canvassers not be ordered if there is any authentic copy available(Ong
a. Barangay officials vs. COMELEC, 216 SCRA 866)
iii. If all copies of the Election returns were lost, a
recount of the ballots should be made.
SUPERVISORY POWER OVER THE BOARD iv. The certificate of votes signed by the BEI and
tally board cannot be used for the canvass, because only
The COMELEC exercises direct supervision and election returns are evidence of the results of the election.
control over the proceedings before the board of canvassers (Garay vs COMELEC, 262 SCRA 222)
(Mastura vs. COMELEC, 285 SCRA 493)
b. Omission in the return
NATURE OF DUTY OF BOARD OF CANVASSERS i. in case of an omission in the election return of
1. Ministerial- it has only the ministrial task of tallying the the names of a candidate or his votes, the board of
votes as reported in the election returns and declare the results, and canvassers shall require the BEI to complete it.
cannot exercise the judicial power of deciding an election contest. ii. If the votes omitted cannot be ascertained
The correction of the manifest mistake in the mathemathical addition except by recounting the ballots, after ascertaining the integrity of the
calls for a mere clerical task on the part of the board. The remedy is ballot has not been violated, the COMELEC shall order the BEI to
purely administrative. (Tatlonghari vs. COMELEC,199 SCRA 199) count the votes for the candidate whose votes were omitted and to
complete the return. Since the omission of the election return on the
2. Quasi-Judicial- The Comelec exercises judgment or number of votes certain candidates received is not a discrepancy, a
discretion to determine whether any given return before it is genuine recount of the vote should be ordered instead of excluding the
in connection with the canvass of votes. election return in the canvassing. (Patoray vs. COMELEC,249 SCRA
490)
PROCEDURE
1. The COMELEC has direct control and supervision over the c. Tampered or falsified return
board of canvassers except congress. It may motu proprio relieve at i. If the election return submitted to the board of
any time and substitute any member of the board of canvassers. canvassers was tampered with or falsified or prepared under duress
(section 227, BP 881) or by persons other than the BEI, the board shall use the other
A municipal court has no jurisdiction to restrain the copies of the election return.
municipal board of canvasser. (Librados vs. ii. If the other copies of the election returns were
Casar,234 SCRA 13) also tampered with or falsified or prepared under duress or by
persons other than the BEI, the COMELEC after ascertaining that the
2. Manner of delivery of election Return integrity of the ballot box has not been violated,shall order the BEI to
a. The BEI shall personally deliver to the city or recount the votes and prepare a new return.
municipal board of canvassers the copy of the election returns iii. If the certificate of canvass was tampered with, the
intended for them sealed in an envelop, signed and thumbmarked by COMELEC may order that any of the copies of the election returns
the members of the BEI. be used in making a new canvass.(Mastura vs. COMELEC,265
SCRA 493)
The fact that an election return was not locked in iv. Since an election return prepared without counting the
the ballot box when it was delivered to the board of canvassers is not ballots is a fabrication, it should not be counted and a count of the
ground for excluding it in the absence of proof that it was tampered ballot should be ordered.( Lucero vss. COMELEC,234 SCRA 280)
with (Pimentel vs. Comelec,140 SCRA 126)
b. The BEI shall personally deliver to the provincial d. Discrepancies in returns
and district board of canvassers the copy of the election returns If there are discrepancies in the other authentic copies of
intended for them to the election registrar. the return or in the words or figures in the same return and it will
affect the result of the election, the COMELEC, after ascertaining that
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the integrity of the ballot box has not been violated, shall order the
recount of the ballots.
If there is discrepancy between the tally and the written
figures in the election return, it should be excluded from the
canvassing and a recount of the ballots should be made or the
certificate of votes cast in the precinct should be used. (Patoray vs.
COMELEC,249 SCRA 440)
PROCLAMATION
1. An incomplete canvass of votes is illegal cannot be a basis
of a valid proclamation (Samad vs. COMELEC,224 SCRA631,Loong
vs. COMELEC,257 SCRA 1) a canvass cannot be reflective of the
true vote of the electorate unless all returns are considered and none
is omitted (Caruncho III vs. COMELEC,315 SCRA 693)
2. If the questioned election returns will not affect the result of
the election, a proclamation may be made upon the order to the
COMELEC after notice and hearing.
3. A proclamation made where the contested returns set
aside will affect the result of the election and the board of canvassers
proceeded to proclaim without the authority from the COMELEC is
null and void. (Sema vs. COMELEC,347 SCRA 633)
4. The mere filing of a petition for disqualification is not a
ground to suspend the proclamation of the winning candidate-in the
absence of an order suspending proclamation, the winning candidate
who is sought to be disqualified is entitled to be proclaimed as a
matter of law. (Bagatsing vs CCOMELEC,320 SCRA 817)
5. Filing of pre-proclamation controversy under 2448 of
BP881 is not the only grounds for the suspension of proclamation.
6. The proclamation of a winning candidate cannot be
annulled if he has not been notified of the motion to set aside his
proclamation. (Caruncho vs. COMELEC,315 SCRA 693)
7. The fact that the candidate who obtained the highest
number of votes is later declared to be disqualified or nor
eligible for the office to which he was elected does not
necessarily entitle the candidate who obtained the second
highest number of votes to be declared the winner of the
elective office To allow the defeated and repudiated to
take over the mayoralty despite the rejection by the
electorate is to disenfranchise the electorate without any
fault of their part and to determine the importance and
meaning of democracy and the peoples right to elect
officials of their choice Court a quo correctly held that the
second placer lost the elections and was repudiated by
either a majority or plurality of voters. (Loreto vs. Brion,311
SCRA 694)
TIE
1. A tie among two or more candidates for president or vice
president shall be broken by majority vote of both houses of
congress voting separately (Section 4. ART VII, PHIL CONTN)
2. In the case of other positions, the ties shall be broken by
the drawing of lots.
FAILURE TO SSUME OFFICE
If a candidate fails to take his oath of office within 6 months
from his proclamation, unless for a cause beyond the control of the
elected official, his office will be considered vacant. (section 12, BP
881)
XI PRE-PROCLAMATION CASES
A. Dfinition;coverage
Pre-proclamation controversy refers to any
question pertaining to or affecting the proceedings of the
board of canvassers 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 Commission, or
any matter raised under sections 233,234,235 and 236 in
relation to the preparation,transmission,receipt, custody
and appreciation of the election returns. ( Chu vs.
COMELEC,319 SCRA 482)
21
In pre-proclamation controversy, the board of
canvassers and the COMELEC are not to look beyond or
behind election returns which are on their face regular and
authentic returns.(CHU,supra)
A pre-proclamation controversy is limited to an
examination of the election returns on their face- The
COMELEC as a general rule need not go beyond the face
of the returns and investigate alleged election irregularities.
To require the COMELEC to examine the
circumstances surrounding the preparation of the returns
would run counter to the rule that a pre-proclamation
controversy should be summarily decided.
Where the resolution of the issues raised would
require the COMELEC to pierce the veil of election
returns that appear prima facie regular, the remedy is a
regular election protest.
The office of pre-proclamation controversy is
limited to incomplete, falsified or materially defective
returns which appear as such on the face. (Sebastian VS
COMELEC, 327 SCRA 406)
B. JURISDICTION
1. Questions involving the legality of the
composition or proceeding of the board of canvassers,
except congress, may be raised initially in the board of
canvassers or the COMELEC.(SEC 15 and 17, RA 7166)
2. Questions involving the election returns and
certificate of canvass should be brought in the first instance
before the board of canvassers only (Section 17, RA 7166)
C. SCOPE OF PRE-PROCLAMATION CONTROVERSY
ISSUES
1. Provincial, city and municipal officials
a. The composition of the proceeding of the board
of canvassers is illegal
b. The 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;
c. The returns were prepared under duress or are
obviously manufactured or not authentic;
d. Substitute or fraudulent returns were canvassed,
the result of which materially affect the standing
of the aggrieved candidate.
2. President, vice president, senators, congressmen and
barangay officials
No pre-proclamation case is allowed regarding
the preparation, transmission, receipt, custody and appreciation of
the election return or certificate of canvass.(Chaves vs
COMELEC,211 SCRA 315)
ERRORS IN THE CERTIFICATE OF CANVASS
Correction of manifest errors has reference to errors in the
election returns, in the entries of the statement of votes by
precinct/per municipality, or in the certificate of canvass a manifest
clerical error is one that is visible to the eye or obvious to the
understanding, and is apparent from the papers to the eye appraiser
and the collector, and does not include an error which may, by
evidence dehors the record to be shown to have been committed.
(Trinidad vs. COMELEC,320 SCRA 836)
1. While the first sentence of section 15 of RA 7166 prohibits
candidates in the presidential, Vice presidential, senatorial and
congressional elections from filing pre-proclamation case, the second
sentence allows the filing of petitions for correction of manifest errors
in the certificate of canvass or election returns even in elections for
president, vice-president, senators and members of the House of
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Representatives for the simple reason that the correction of manifest
error will not prolong the process of canvassing nor delay the
proclamation of the winner in the election. (Sandoval vs.
COMELEC,323 SCRA 403)
2. The canvassing body may motu proprio or upon petition of
an interested party correct manifest errors in the certificate of
canvass or election return. (Sec 15, RA7166)
i. A copy of an election return or certificate of
canvass was tabulated more than once.
ii. Two or more copies of the same election return
or certificate of canvass were tabulated separately.
iii. There was a mistake in copying the figures into the
statement of votes or certificate of canvass.
Errors in addition in the certificate of canvass may be
corrected. (Ong vs COMELEC,221 SCRA 75)
iv. Returns from non-existent precincts were included in the
canvass
The statement of votes cannot be corrected on
the basis of a certification given to a watcher, since election returns
are what are supposed to be the basis of the canvass. (Ramirez vs.
COMELEC,270 SCRA 390)
STATISTICAL IMPROBABILITIES
An election return which is statistically improbable is
obviously fabricated and should not be counted.
i. Where the votes cast in 50 precincts for the
candidates for senators of one party equalled the number of
registered voters, all the candidates for senators of that party
received the same number of votes, and all the candidates for
senators of the opposing party got no votes, the election returns are
statistically improbable and are obviously fabricated.(Lagumbay vs.
Climaco, 16 SCRA 175)
ii. Where only one candidate of a party got all the
votes in some precincts and his opponent got
zero, the other candidates for the other party for
other positions received votes, the number of
votes cast were less than the number of
registered voters, the election returns are not
statistically improbable. (Sangki vs COMELEC,
21 SCRA 1391)sss
iii. The mere fact that a candidate receive
overwhelming majorities over another candidate
in numerous precinct does not make the election
return statistically improbable. (Ilarde vs. 31
SCRA71)
iv. The mere fact that the percentage of turnout of
voters was high and that a candidate received
high percentage of the votes does not make the
election returns statistically improbable.(Doruelo
vs. COMELEC ,133 SCRA 376)
v. The bare fact that candidate for public office had
received zero vote is not enough to make returns
statistically improbable (Ocampo
vs.COKELRC,325SCRA 636)
v. Standing alone without more, the bare fact that a
candidate for public office had receive zero votes
in one or two precincts can not adequately
support a finding that the subject election returns
are statistically improbable- the doctrine of
statistical improbability must be viewed
restrictively, the utmost care being taken lest in
penalizing the fraudulent and corrupt practices,
innocent voters become disenfranchisedThe
doctrine of statistical improbability involves a
question of fact and more prudential approach
prohibits its determination ex parte.(Velayo vs.
COMELEC,327 SCRA713)
22
ISSUES NOT RESOLVABLE N PRE-PROCLAMATION
CONTROVERSY
1.Issues involving the casting or the counting of the ballots are not
proper in pre- proclamation cases.
i. The use of illegal election propaganda, vote-buying
and terrorism of the voters are not proper issues in a
pre-proclamation case. (Villegas vs. COMELEC, 99
SCRA 5892)
ii. Questions on the appreciation of the ballots can not
be raised in pre-proclamation case. (Alfonso
vs.COMELEC, 232 SCRA 777)Thus, the claim that a
candidate was not credited with votes cast for him
because his name was similar to that of another
disqualified candidate cannot be raised in a pre-
proclamation case.(Chavez vs. COMELEC, 211
SCRA 315)
Likewise, the claim
that some ballots were spurious,
marked or invalid cannot be raised in a
pre- proclamation case. (pataray vs.
COMELEC,274 SCRA 470)
iii. Terrorism of voters, voting by
flying voters, deprivation of the right to
vote of registered voters and vote
buying cannot be raised in a pre-
proclamation case (Allarde vs.
COMELEC,159 SCRA 623)
iv. Vote buying and secrecy in
the preparation of ballots are not
proper grounds for pre-proclamation
case (Salazar vs. COMELEC,184
SCRA 433)
v. The claim that the voters
were allowed to vote without verifying
their identities, that there were
discrepancies between the signatures
in the voter\s affidavits and the voting
record, and third persons falsely voted
for voters who did not vote are not
proper issues in a pre-proclamation
case (Dipatuan vs. COMELEC,185
SCRA 86)
vi. Technical examination of the
signatures and thumbprints of the
voters to prove substitute voting is not
allowed in a pre-proclamation case.
(Balindong vs. COMELLEC,260 SCRA
294)
vii. The padding of the list of
voters cannot be raised in a pre-
proclamation case, since it does not
involve the election return. (Ututahan
vs. COOOMELEC,189 SCRA 335)
viii. The fact that the voting was
sham or minimal is not a ground for
filing a pre-proclamation case, since
this is properly cognizable in an
election protest.(Salih vs.
COMELEC,279 SCRA 19)
ix To look beyond or behind
election returns is not a proper issue in
pre-proclamation controversy (Ocampo
vs. COMELEC, 325 SCRA 636)
x The fact that the counting of
the votes was not completed because
of the explosion of grenade and that no
election was held cannot be raised in a
pre-proclamation case, as these are
irregularities that do not appear on the
ZPG & Associates
face of the election returns. (Matalam
vs. COMELEC,271 SCRA 733)
2. Administrative lapses which
do not affect the authenticity of an
election return cannot serve as basis
for annulling the election return.
i. The failure to close the
entries in the election returns with the
signature of the BEI, lack of seals,
absence of time and date of receipt of
election return by the board of
canvassers, lack of signature of
watchers of the petitioner, and the lack
of authority of the person who received
the election returns do not affect the
authenticity of the returns. (Baterina vs.
COMELEC,205 SCRA 1)
ii. The absence of the signature
of the claimant of the BEI on the voters
affidavits, list of voters and voting
records, absence or excess of
detachable coupons, discrepancies
between the member of detachable
coupons and the number of ballots,
missing voters lists are mere
administrative omissions and cannot be
used as basis to annul an election
return. (Arroyo vs. HRET, 246 SCRA
384)
3. Where the threats of the
followers of a candidate did not affect
the genuineness of an election return, it
should not be excluded (Salvacion vs.
COMELEC,170 SCRA 513)
SUMMARY DISPOSITION OF PRE-
PROCLAMATION CONTROVERSY
1. Summary proceedings
cannot be stretched to mean ex parte
proceeding- summary simply means
with dispatch, with the least possible
delay, signifying that the power may be
exercised without trial in the ordinary
manner prescribed by law for regular
judicial proceedings.(Velayo
vs.Comelec,372 SCRA 713)
2. RA 7166 explicitly provides
that it is only on the basis of the official
records that the COMELEC can decide
the pre-proclamation controversy in a
summary manner. (Velayo vs.
COMELEC,327 SCRA 713)
3. All pre-proclamation
controversies on election returns or
certificates of canvass shall be
disposed of summarily-first by the
record of canvassers and then. By the
COMELEC. (Chu vs. COMELEC, 319
SCRA 482)
A. Procedure in contested composition or proceeding of the
Board of Canvassers
The illegality of the composition of the board of canvassers
cannot be questioned after the proclamation of the winner,
since it must be raised immediately. (Laodenio vs.
COMELEC,276 SCRA 705)
The ruling of the board of canvassers on
question affecting its composition or proceeding may be
23
appealed to the COOMELEC in 3 days.(Section 19 RA
7166)
B. Procedure in case of contested returns
1. Objections to an election return shall be
submitted orally to the chairman of the board of canvassers
at the time the return is presented for inclusion in the
canvass and shall be entered in the form for written
objection(Sec 20 (a) and (c),RA 7166)
a. An objection made after the canvass is
late.(Guiao vs /comelec,137 SCRA 356,Navarro vs
COMELEC,228 SCRA 596)
b. a petition for correction of the
statement of votes may be filed after the proclamation of
the winner, although no objection was made during the
canvass, as error was discovered only after the petitioner
got a copy of the statement of votes. (Duremdes vs.
COMELEC,178 SCRA 746). It must be filed not later than
5 days after the proclamation.(Section 5(b), Rule 27 of
COMELEC rules of procedure)
However, the five-day deadline is not
applicable to a petition for the annulment of proclamation of
a candidate when it was his opponent who obtained the
majority for what was corrected was not the entries but the
computation of the votes. (Mentang vs. COMELEC,229
SCRA 666)
Under the COMELEC Rules of
procedure, a petition for correction of the certificate of
canvass may be filed even before the proclamation of the
winner. (Bince vs. Comelec,242 SCRA273)
A petition for correction of manifest
errors in the statement of votes can be decided by the
COMELEC en banc at the first instance, since it does not
involve an election protest or a pre-proclamation case
(Ramirez vs. COMELEC,270 SCRA 590)
The COMELEC has the power to order
the correction of the statement of votes to make it conform
to the election returns. (Castromayor vs. COMELEC,250
SCRA 298)
2. The canvass of any contested return shall be
deferred and the board of canvasser shall proceed to
canvass the uncontested return (Section 20(b),RA 7166)
3. Within 24 hours, the objecting party shall submit
evidence in support of the objections.
4. Within 24 hours after presentation of the
objection, a party may file a written opposition and attach
the supporting evidence.(Section 20c, RA 7166)
5. The board of canvassers shall summarily rule in
the contested returns (Section 20(d),RA 7166)
6. A party who intends to appeal should
immediately inform the board of canvassers. Within 24
hours he must file a written and verified notice of appeal
with the board of canvassers and take his appeal to the
COMELEC within 5 days. (section 20(f),RA 7166)
a. Appellate jurisdiction
The RTC has no jurisdiction to review the decision of the
municipal board of canvassers to correct a certificate of
canvass.(Cabanero vs CA)
The RTC has no jurisdiction to compel themunicipal board
of canvassers, which suspended the proclamation because
of a possible discrepancy in the election return, to make a
proclamation. (In re COMELEC Resolution no.2521,234
SCRA 1)
b. Period of appeal
Since the proclamation of a candidate who finished second
made after the candidate who got the highest number of
ZPG & Associates
votes was killed is patently void, a late appeal should be
allowed. (Benito vs. CCOMELLEC,235 SCRAS 436)
The COMELEC cannot by regulation shorten the period to
question its decision before the SC for under the
Constitution the period of 30 days can be shortened by law
only.(Sardea vs. COMELLEC,225 SCRA 374)
7. The COMELEC shall decide the appeal within 7 days from
receipt of the records, and the decision shall be executory
after 7 days from receipt by the losing party. (Sections 18
and 20(f), RA 7166)
TERMINATION OF PRE-
PROCLAMATION CASE
Once a proclamation has been made,
the pre-proclamation case is no longer
viable and should be dismissed
(Sardea vs. COMELEC). However this
rule presupposes the proclamation is
valid. It does not apply if the
proclamation is void, because it was
based on incomplete returns.(Matalam
vs. COMELEC 271 SCRA 733). The
same holds true if the returns were
manufactured. (Agbayani vs.
COMELEC,186 SCRA 464). The same
hols true where the computation of
votes was erroneous. (Mentang vs.
COMELEC,229 SCRA 669)
All pre-proclamation cases pending
before the COMELEC shall be
terminated at the beginning of the term
of the office (noon of June 30) involved,
and the rulings of the board of
canvassers shall be deemed affirmed,
without prejudice to the filing of an
election protest by the aggrieved party.
(Penaflorida vs. COMELEC,282 SCRA
241 And Barroso vs Ampig,328 SCRA
530)
The pre-proclamation case should no
longer be decided if exclusion of the
questioned election return will not
change the result of the election.
(Matalam vss. COMELEC,271 SCRA
733)
EFFECT OF FILING AN ELECTION
PROTEST,QUO WARRANTO
1. As a general rule, the filing of
an election protest or a petition for quo
warranto precludes the subsequent
filing of a pre-proclamation controversy,
or amounts to the abandonment of one
earlier filed. (Maruhom vs.
COMELEC,331 SCRA 473)
2. The filing of an election
protest results in abandonment of a
pre-proclamation case even if the
protest alleged it was filed as a
precautionary measure, if he did not
explain why.(Laodenio vs.
COMELEC,276 SCRA 405)
3. The rule that the filing of a
protest implies abandonment of the
pre-proclamation case does not apply
if:
24
i. The protest was
filed as a precautionary measure
(mitmug vs. COMELEC,230 SCRA 54)
ii. The board of canvassers was improperly
constituted, as when the Municipal Treasurer took over the
canvassing without having been designated. (Saman vs.
COMELEC,224 SCRA 631)
CONTINUANCE OF THE CASE
If the petition appears meritorious on the basis of the evidence
presented so far, the COMELEC or the SC may order the case to
continue. (Section 16, RA 7166)
PROCLAMATION
1. The Board of Canvassers shall not make any proclamation
without any authorization from the COMELEC (Jamil vs
COMELEC,283 SCRA 349)
2. Proclamation may be made if the contested returns will not
adversely affect the results of the elections. (Section 20 (i), RA 7166)
3. The COMELEC may order the proclamation of other
winning candidates whose election will not be affected by the pre-
proclamation case. (Section 21, RA 7166)
4. A candidate for mayor who finished second cannot be
proclaimed simply because the candidate who received the highest
number of votes died, since he was not the choice of the people.
(Benito vs. COMELEC, 23335 SCRA 436)
5. The wreath of victory cannot be transferred from the
disqualified winner to the repudiated loser because the law then as
now only authorizes a declaration of election in favor of the person
who has obtained a plurality of votes to be declared elected. (Sunga
vs. COMELEC,288 SCRA 76)
ANNULMENT OF PROCLAMATION
1. The COMELEC can annul a proclamation because of an
error in the computation of the votes in the statement of votes since
the proclamation is void.(Torres vs. COMELEC,270 SCRA 583)
2. Where the COMELEC, without prior notice and hearing,
annulled the proclamation of a winning party and directed the
Municipal Board of Canvassers to reconvene and effect corrections
in the total number of votes received by the candidates and
thereafter proclaim the winner, the expedient action to take is to
direct the Municipal Board of Canvassers to reconvene and. after
notice and hearing in accordance with rule 27, section 7 of the
COMELEC Rules of Procedure, to effect the necessary correction, if
any, in the election returns and, on the basis thereof, proclaim the
winning candidate or candidates as members of the Sangguniang
Bayan( Angelia vs. COMELEC,332 SCRA 757)
3. It is improper for the COMELEC to annul the proclamation
of a winning candidate on the basis of new and additional evidence
which were not presented before the Board of Canvasssers and
which were not furnished to the said candidate Reliance should not
be placed on mere affidavits for the purpose of annulling a winning
candidates proclamation. (Velayo vs. COMELEC, 327 SCRA 713)
4. A proclamation subsequently declared void is no
proclamation at all and while a proclaimed candidate may assume
office on the strength of the proclamation of the Board of Canvassers
he is only a presumptive winner who assumes office subject to the
final outcome of the election protest. (Lonzanida vs. COMELEC,
311 SRA 602)
ZPG & Associates 25

iii. Congressmen- 10 days ( Rule 16 and

ELECTION CONTESTS 17.1998 Rules of House of
Representatives Electoral Tribunal)
A. Jurisdiction iv. Regional, provincial and city officials-10
days ( Sec 250 and 253, BP 881;
Supreme Court( Presidential Electoral Tribunal) Republic vs. Dela Rosa, 232 SCRA 78)
v. Municipal Officials- 10 days ( Secs 251
President and 253, BP 881)
Vice-President ( Sec. 4, Art VII, Phil. Const) vi. Barangay Officials 10 days ( Sec
Senate Electoral tribunal Senators 252 and 253, BP 881)
( Sec 17, Art VI, PC) vii. Sangguniang Kabataan- 10 days ( Sec
1, RA 7808)
3. House of Representatives Electoral Tribunal- b. Exceptions
Congressmen ( Sec 17, Art VI, PC; Sampayan vs. i. The period to file an election protest or
Daza, 213 SCRA 807) quo warranto case is
suspended from the filing of a pre-
4. Commission on Elections proclamation case until receipt of the
order dismissing the case. ( Sec 248,
Regional Officials BP 881; Gatchalian vs CA , SCRA 208)
Provincial Officials ii. If the dismissal was elevated to the
City Officials ( Sec 2(2). Art IX-C, PC; Sec 249 BP 881) Supreme Court , the period does not
run until receipt of the dismissal by the
6. Regional Trial Court- Municipal Officials ( Sec 2(2), Art Supreme Court, because review by the
IX-C, PC; Sec 251, BP 881, Papandayan vs. Supreme Court is part of the
COMELEC , 230 SCRA 469) proceeding.( Gallardo vs Rimando, 187
7. Metropolitan Trial Court, Municipal Circuit Trial Court, SCRA 463)
and Municipal iii. The running of the reglementary period to
Trial Court Barangay Officials [ Sec 2(2), Art IX-C, file an election protest is
PC; Sec 252 BP 881; Regatcho vs. Cleto, 126 SCRA tolled by a partys elevation to the
342] Metropolitan Trial Court, Municipal Circuit Trial Supreme Court of a
Court, Municipal Trial Court Sangguniang Kabataan COMELEC decision resolution of
( Sec 1, RA 7166) proclamation case. ( Roquero vs
COMELEC , 289 SCRA 120)
B. Action which may be filed iv. The period to file an election protest is
1. Election Protest suspended by the filing of the petition
Requisites: to annul the proclamation of the winner
i. Must be filed by any candidate who has ( Manahan vs Bernardo, 283 SCRA
filed a certificate of candidacy and has 505)
been voted upon for the same office. v. Since the filing of a pre-proclamation
ii. On ground of fraud, terrorism, case merely suspends the running of
irregularities or illegal acts committed the period to file an election protest,
before, during or after the casting and only the balance of the period is in
counting of votes case of dismissal. ( Roquero vs
iii. Within 10 days from the proclamation COMELEC , 289 SCRA 150)
of the results of the election. vi. Where the evidence of the lack of
Quo Warranto Filipino citizenship of a provincial
Requisites: official was discovered only 18 months
i. Filed by any registered voter in the after his proclamation, the quo
constituency warranto case should be allowed even
ii. On grounds of ineligibility or disloyalty if it filed more than 10 days after his
to the Republic of the Philippines proclamation. ( Frivaldo vs COMELEC ,
iii. Within 10 days from the proclamation 174 SCRA 245)
of the results of the election
2 .Protestant or Petitioner
C Procedure President and Vice-President
1. Period of filing contest i. protest- Candidate with second or third
a. Periods highest number of votes ( Rule 14, Rules
i. President and Vice-President of Presidential Electoral Tribunal)
1) Protest- 30 days ( Rule 14, ii. Quo Warranto- any voter ( Rule 15, Rules
Rules of Presidential Electoral of Presidential Electoral Tribunal)
Tribunal) Senator
2) Quo Warranto- 10 days (
Rule 15, Rules of i. Protest- any candidate ( Rule 14,
Presidential Revised Rules of Senate Electoral
Electoral Tribunal) Tribunal)
ii. Senators ii. Quo Warranto- any voter ( Rule 15,
1) Protest 15 days ( Rule 14, 1998 Rules of Senate Electoral
Revised Rules of Senate Tribunal)
Electoral Tribunal) Congressmen
2) Quo Warranto 10 days ( Protest- any candidate
Rule 15, Revised Rules of
Senate Electoral Tribunal)
ZPG & Associates
Quo Warranto- Any voter ( Rule 17, 1998 Rules
of House of Representatives Electoral
Tribunal)
Regional, provincial, City Officials
Protest- any candidate ( Sec 250, BP 881)
Quo Warranto- any voter ( Sec 253, BP 881)
Municipal Officials
Protest- any candidate- ( Sec 251 , BP 881)
Quo Warranto- any voter ( Sec 253, BP 881)
Barangay Officials
Protest- any candidate- ( Sec 252, BP 881)
Quo Warranto- any voter ( Sec 253, Bp 881)
Payment of Docket Fee
When the protestant included
a claim for attorneys fees in his protest
and paid the docket fee for his claim for
attorneys fees but did not pay the
basic docket fee for the election protest
, the election protest should be
dismissed. ( Gatchalian vs CA, 245
SCRA 208)
Allegations in Protest
An election protest should contain the following
jurisdictional allegations:
The protestant is a candidate who duly filed a
certificate of candidacy and was voted
for in the election
The protestee has been proclaimed elected
The date of proclamation ( Miro vs COMELEC,
121 SCRA 466)
An election protest which does not
specify the precinct where the alleged
irregularities occurred is fatally
defective . (Pena vs HRET , 270 SCRA
340)
Substantial compliance is sufficient . Thus the
following allegations sufficiently comply
with the first requirement.
The protestant received a certain number of
votes ( Anis vs Contreras, 55 Phil 929)
The protestant finished second in the election (
Ali vs CFI of Lanao, 80 Phil 506)
The protestant was a candidate voted for in the
election with a valid certificate of
candidacy for mayor ( Pamania vs
Pilapil, 81 Phil 212)
The protestant was one of the registered
candidates voted for and he received a
certain number of votes ( Jalandoni vs
Sarcon, 94 Phil 266)
The protestant was the official candidate of a
[particular political party and received a
certain number of votes ( Maquinay vs
Bleza, 100 SCRA 702)
The protestant was a candidate for governor and
was voted for. ( Macias vs COMELEC,
182 SCRA 137)
Even if the protest did not allege the date of the
proclamation, it can be determined
from the records of the case that it was
filed on time, as when the protest was
filed on the tenth from the date the
casting of votes was held, the protest
should not be dismissed. (Miro vs
COMELEC, 121 SCRA 466)
Verification/Certificate of Absence of Forum
Shopping
When the petioner failed to state in his
verification that the contents of the
election protest are true and correct of
26
his own personal knowledge , said
petition lacks proper verification and
should be treated an unsigned pleading
and must be dismissed. ( Soller vs
COMELEC, 339 SCRA 685)
Forum Shopping exists when the petitioner files
multiple petitions or complaints
involving the same issues in two or
more tribunal or agencies. ( Domingo
vs COMELEC, 313 SCRA 311)
The requirement that every initial pleading should
contain certification of absence of
forum shopping applies to election
cases for Circular No. 04-94 does not
distinguish ( Loyola vs CA 245 SCRA
477, Tamarong vs Lubguban, 269
SCRA 624)
SC Adm. Circular No 04-94 requiring a
certification of non-forum shopping is
applicable to election cases as it is
mandatory . It is, however not
jurisdictional.. The filing of a
certification of absence of forum
shopping after the filing of the protest
but within the period for filing a protest
is substantial compliance. ( Tumarong,
supra)
The strict application of the non-forum shopping
rule in election contests would not work
to the best interest of the parties and
the electorate . An election contest,
unlike an ordinary civil action , is
clothed with public interest--- it involves
not only the adjudication of private and
pecuniary interest of rival candidates
but paramount to their claims is the
deep public concern involved and the
need of dispelling the uncertainty over
the real choice of the electorate.
( Barroso vs Ampig Jr, 328 SCRA 530)
Joinder of Election Protest and Quo
Warranto Cases
An election protest and quo warranto case
cannot be filed jointly in the same
proceeding. However, they can be filed
separately. ( Luisaon vs Garcia , GR
No L-10916, May 10, 1957)
If they were joined in an action , they should be
ordered separated. ( Pacal vs Ramos,
81 Phil 20)
Composition of Board of Canvassers
The illegality of the composition of the
board of canvassers cannot be raised
in a quo warranto case, as only the
ineligibility or disloyalty of the winner
can be raised in such case
( Samad vs COMELEC, 224 SCRA
631)
Change Theory
Substantial Amendments to the
election protest cannot be made after
the expiration of the period for filing an
election protest. ( Arroyo vs
HRET, 224 SCRA 384)
Preliminary Motions
A motion to dismiss and a motion for a
bill of particulars may be filed in an
election protest pending before the
ZPG & Associates
regular courts , since the COMELEC
Rules of Procedure are not applicable
to the regular courts because of the
exclusive rule-making power of the
Supreme Court. ( Aruelo vs CA, 227
SCRA 311)
10. Answer
An
answer file out of time cannot be
admitted ( Kho vs
COMELEC 279 SCRA 463)
Where the answer of the
protestee was filed out of time and a
general denial was entered in
favor of the protestee, the rule in
civil cases that general
denials operates as a n admission is
not
applicable ( Loyola vs HRET,
229 SCRA 90)
A counter protest cannot be
allowed if the answer was filed out of
time ( Lim vs COMELEC, 282
SCRA 53)
11. Cash Deposit
A protestee who filed a counterclaim
for attorneys fees cannot be required
to file a cash deposit since a cash
deposit is required only for a counter-
protest ( Roa vs Inting, 231 SCRA 57)
12. Injunction
A protestee cannot be enjoined from
assuming office because of the
pendency of an election protest. Until
the case is decided against him, he has
the right to assume office. ( Careno vs
Dictado, 160 SCRA 759)
13. Substitution
a. Even if the protestee has resigned , the
protest should continue , as a copies cannot be used as evidence ( Arroyo vs
favorable judgement will be entitled the
protestant to assume the office ( Delos
Angeles vs Rodriguez, 46 Phil 599)
The same holds true if the protestee
accepted another position ( Calvo vs
Maramba, GR No 13206, January 7,
1918)
b. If the protestee died, he should be
substituted by his successor such as
the vice-mayor ( Dela Victoria vs
COMELEC, 199 SCRA 561) He cannot
be substituted by his heirs, since public
office cannot be inherited. ( Abeja vs
Tanada, 236 SCRA 60)
c. If it is the protestant who died, he
should be substituted by the public
official who would have succeeded
him, such as the vice-mayor. ( De
Castro vs COMELEC 267 SCRA 806)
14. Abandonment
A defeated candidate for president who filed an
election protest and ran for senator should be
deemed to have abandoned the protest (
Santiago vs Ramos, 253 SCRA 559)
15. Summary Judgment
27
An election protest cannot be decided summarly,
as summary judgment applies only to ordinary
civil action for recovery of money MELEC
199 SCRA 449)
16. Opening of Ballots
When an election protest is filed. The ballot
boxes should be opened without requiring proof
of irregularities, and misappreciation of ballots
( Manahan vs Bernardo, 283 SCRA 505)
The revision of ballots in an election protest filed
with COMELEC should be held in Manila (
Cabagnot vs COMELEC, 260 SCRA 503)
17. Deferment of Counter Protest
A protestee cannot ask that before making the
revision of the ballots involved in his counter-
protest, the court first determine that the
protestant would win on the basis of the revisions
of the ballots involved in the protest (Abeja vs
Tanada, 236 SCRA 60)
18. Certiorari
Under Sec 50 of BP 697, the COMELEC has
jurisdiction over petitions for certiorari, prohibition
and mandamus involving election cases pending
before the courts whose decisions are appealabe
to it ( Relampagos vs CUmba, 243 SCRA
690;Edding vs COMELEC 246 SCRA 502)
Where a petition for certiorari merely questioned
the denial of the motion of the protestee for
extension of the time to answer, the COMELEC
cannot affirm the decision of the merits in the
election protest. ( Acosta vs COMELEC, 293
SCRA 578)
19. Evidence
The genuineness of the handwriting in the ballots
can be determined without calling handwriting
experts. ( Erni vs COMELEC, 243 SCRA 578)
Unless the original documents or certified true
copies of them cannot be produced or photo-
HRET, 246 SCRA 384)
Ballots cannot be excluded on the ground that
they were written by any person or were marked
on the basis of mere photo-copies, as they are
not the best evidence ( Nazareno vs COMELEC
279 SCRA 89)
20. Demurrer
A motion to dismiss for insufficiency of the
evidence of the protestant has rested is a
demurrer to the evidence. If it was granted but
reversed on appeal , the protestee is deemed to
have the right to present evidence ( Enojas vs
COMELEC, 283 SCRA 229)
21. Decision
a. authentic election return cannot be
annulled because the ballots were lost
or destroyed ( Arroyo vs HRET 246 SCRA 384)
b. If the winner is ineligible, the candidate
who got the highest number
of votes cannot be proclaimed elected as he did not get the
majority or plurality of the votes (
Sunga vs COMELEC,
288 SCRA 76)
ZPG & Associates 28

i. President- 10 days
c. Actual damages may be awarded in ii. Vice-President- 10 days ( Rule 65,
accordance with the law Rules of Presidential Electoral
( Sec 259, BP 881) Tribunal
iii. Senator- 10 days ( Rule 64, Rules of
The loser cannot be ordered to Senate Electoral Tribunal)
reimburse the winner for the expenses iv. Congressmen- 10 days ( Rule 74, 1998
incurred in the election protest for no law provides for it Rules of HRET)
( Atienza vs COMELEC 239 SCRA 298) v. Regional, Provincial and City Officials
d. The mere fact that the decision in favor 5 days ( Sec 2, Rule 19
of the protestant was reversed COMELEC Rules of Procedure)
on appeal is not sufficient basis for the ruling that the b. No motion for reconsideration is allowed in
protestant should be awarded attorneys fees election contests involving the following:
because the protest was filed
for harassment i. Municipal officials ( Sec 256, BP 881;
( Malaluan vs COMELEC 254 SCRA Veloria vs COMELEC , 211
397) SCRA 907)
e. Under Sec 264, par 1 of BP 881, as However this rule should not be applied
amended , the award of to the dismissal of an election
damages is no among the imposable penalties for the protest for failure of the counsel of the protestant to appear
commission of any of the at the pre-trial, since the pre-trial is not applicable to the
election offenses thereunder by any individual election protest. ( Pangilinan vs De
( Regalado vs CA 325 SCRA 516) Ocampo, 232 SCRA )
ii. Barangay Officials ( Sec 19, Rule 37
22. Execution of Judgment Pending Appeal and Sec 12, Rule 38
BP 881 and other election laws do not specifically provide COMELEC Rules of Procedure)
for the execution pending appeal for judgment iii. Sangguniang Kabataan ( Sec 19, Rule
in election cases, unlike the Election Code of 1971. The 37 and Sec 12 Rule 38,
failure of the extant election laws to reproduce Sec 218 of the COMELEC Rules of Procedure)
Election Code of 1971 does not mean that the execution of
judgment pending appeal is no longer available in election cases. c. Since only decisions of the COMELEC en banc
may be elevated to the Supreme Court , a
The Supreme Court has explicitly recognized and given party who did not file for a motion for reconsideration
approval to execution of j judgment pending appeal in election of a decision of a division of the COMELEC cannot elevate
cases filed under existing laws.. The rationale why execution the case to the Supreme Court ( Reyes vs RTC of
pending appeal is allowed in election cases is to give much Oriental Mindoro, 244 SCRA 41)
recognition to the worth of a trial judges decision as that which is
initially ascribed by the law to the proclamation by the board of d. A resolution of the COMELEC en banc is not
canvassers. subject to reconsideration, therefore any party
who disagrees with it is to file a petition for
Governed by Sec 2 , Rule 39 of the 1997 Rules of Civil certiorariunder Rule 65 of the Rules of Civil
procedure. Execution pending appeal should be based upon procedure a motion for reconsideration of an
good reasons and a combination of two or more of them will en banc ruling, resolution, order, or decision
suffice to grant execution pending appeal: except in election offense cases is a prohibited
pleading under the COMELEC Rules of
i. Public interest involved or will of the Procedure. For a party to wait until the
electorate COMELEC en banc denies his motion for
ii. The shortness of the remaining portion reconsideration would be to allow the
of the term of the contested office reglementary period for filing a petition for
iii. Length of time that the election contest certiorari with the SC to run and expire. ( Angela
has been pending ( Ferno vs vs COMELEC , 322 SCRA 757)
COMELEC 328 SCRA 52)
iv. Filing of bond as a condition for the
issuance of a corresponding writ of 24. Review
execution to answer for the payment of damages which the a. Jurisdiction
aggrieved party may suffer by reason of the i. Senator- Supreme Court within 60 days
execution pending appeal ( Ramas vs ( Sec 4, Rule 65 Rules of Court)
COMELEC 286 SCRA 189) ii. Congressmen- Supreme Court within
60 days ( Lerias vs HRET; Sec 4,
Execution pending appeal cannot be ordered on the Rule 65 Rules of Court)
basis of gratuitous allegations that public interest iii. Regional, provincial, and City officials
is involved and that the appeal is dilatory. ( Camlian vs Supreme Court within 30 days (
COMELEC 271 , 271 SCRA 757) Sec 7, Art IX-A Phil Const)
iv. Municipal Officials
A motion for execution pending appeal filed after the 1) COMELEC within 5 days (
expiration of the period of appeal can no longer be granted ( Sec 22 RA 7166; Sec 3 Rule 22
Relampagos vs Cumba 243 SCRA 690) of COMELEC Rules of Procedure, Lindo vs COMELEC,
194 SCRA 25)
23. Motion for Reconsideration 2) Supreme Court- within 30
days ( Rivera vs COMELEC 199
a. One motion for reconsideration is allowed in the SCRA 178)
contest involving the following : v. Barangay Officials
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1) COMELEC within 5 days ( candidate to promote his election shall create a presumption of
Sec 2(2) ,Art IX-C, Phil Const; conspiracy to bribe voters.
Sec 3, Rule 22 COMELEC Rules of Procedure; calucag vs
COMELEC 274 SCRA 405) b. The fact that at least 20% of the
2) Supreme Court within 30 precincts of the municipality, city or province to which the office
days ( Flores vs COMELEC 184 aspired for by the candidate is affected by the offer creates the
SCRA 484) presumption that the candidate and his campaign managers are
b. Form involved in the conspiracy.
Where the appellant filed an appeal brief instead c. Any person who is guilty and willingly
of a notice of appeal to the COMELEC , testifies shall be exempt from prosecution ( Sec 28, RA 6646)
the appeal should not be dismissed, since the
determination of the will of the people should not be d. The traditional gift-giving by the
thwarted of technicalities ( municipality during Christmas which was done to induce voters for
Pahilan vs Tabalba, 230 SCRA 205) the mayor does not constitute vote-buying ( Lozano vs Martinez, 285
SCRA 256)
c. Failure to Pay Appellate Docket Fee
2. Appointment of New Employees
i. An appeal may be dismissed for failure The prohibition against appointment of a
of the appellant to pay the appellate government employee within 45 days before regular election refers to
docket fee ( Reyes vs RTC of Oriental Mindoro, 244 positions covered by the civil service and does not apply to the
SCRA 41) replacement of a councilor who died ( Ong vd Martinez, 188 SCRA
ii. An appeal may be dismissed if the full 830)
appellate docket fee was not paid ,
as payment of the full amount is indispensable for 3. Unauthorized Entry into Polling Place
perfection of the appeal ( Rodillas vs COMELEC, Mere presence of unauthorized person inside a
245 SCRA 702) polling place is an offense ( COMELEC vs Romillo, 158 SCRA 716)
4. Transfers of Government Employees
d. Scope of Authority
Since the Omnibus Election Code does not per
Errors committed by the trial court may be se prohibit the transfer of government employees
considered even if they were not assigned as during the election period but only penalizes such
errors ( Arao vs COMELEC 210 SCRA 290) transfers made without the prior approval of the
COMELEC in accordance with the implementing
XIII. CRIMINAL OFFENSES regulations, the transfer of government
employees before the publication of the
A,. Criminal and Electorate Aspects of An Election Offense implementing regulations is not an election
offense. ( People vs Reyes, 247 SCRA 328)
An election offense has criminal as well as electoral
aspects ( Sunga vs COMELEC 288 SCRA 76) Two elements of the offense prescribed under
Sec 261 (h) of BP 881, as amended are: (1) a
1. Its criminal aspect involves the ascertainment of public officer or employee is transferred or detailed
the guilt or innocence of the accused within the election period as fixed by the COMELEC , and
candidate like in any other criminal case, it usually entails a (2) the transfer or detail was effected without prior
full-blown hearing and the quantum of proof approval of the COMELEC in
required to secure a accordance with its implementing rules and regulations (
conviction beyond reasonable doubt . Regalado vs CA 325 SCRA 516)
2. Its electoral aspect is a determination of whether
the offender should be qualified from 5. Carrying Deadly Weapon in Precinct
office. This is done through administrative proceeding
which is summary in character and requires only To support a conviction carrying a deadly weapon inside a
a clear preponderance of precinct, it is necessary that the deadly weapon be seized from
evidence. the accused while he was in precinct ( Mappala vs
Munoz 240 SCRA 600)
B. Jurisdiction to try the case
The expanded jurisdiction of the Municipal Trail Court ( RA 6. Failure to make Proclamation
7691) does not include criminal cases involving election offenses,
because by special provision of Sec 268 of BP 881 they fall within Proclaiming a losing candidate instead of the winner also
the jurisdiction of the Regional Trial Court ( COMELEC vs Noynay constitutes failure to make a proclamation ( Agujetas vs CA
292 SCRA 354) 261 SCRA 17)

Under Sec 268 of BP 881, regional trial courts have
exclusive jurisdiction to try and decide any criminal action or
proceeding for violation of the Code including those penalized by
imprisonment not exceeding 6 years, but except those relating to the
offense of failure to vote ( Juan vs People 322 SCRA 125)
C. Offenses
1. Vote-buying
a. The fact that at least one voter in at
least 20% of the precincts in a municipality , city or province was
offered money by the relatives, leaders or sympathizers of a
7. Refusing to credit candidate with vote
Under section 27(b) of RA 6646, two act not
one, are penalized i.e, first, the tampering, increasing or decreasing
of votes received by a candidate in any election, and second, the
refusal, after proper verification and hearing to credit the correct
votes or deduct such tampered votes.(Pimentel vs. COMELEC,289
SCRA 586)
D. Prosecution
1. Section 2(6),Art IX-C File, upon a verified complaint, or on
its own initiative, petitions in court for inclusion or exclusion of voters;
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investigate and, where appropriate, prosecute cases of violations of

election laws, including acts or omissions constituting election frauds,
offenses, and malpractices.

The COMELEC has exclusive jurisdiction to conduct

preliminary investigation of and prosecute election offenses
(Naldaza vs. Lavilles,254 SCRA 286)

2. This holds true even if the offense is committed by a public

officer in relation to his office.(Corpuz vs. Tanodbayan, 149
SCRA 2281)

3. Whatever initiated motu propio or filed with the COMELEC

by any other party, the complaint shall be referred to the COMELEC
Law Department for investigation.. The COMELEC Chairman, in his
personal capacity may file directly with the COMELEC Law
Department pursuant to Section 4, Rule 34 of the COMELEC Rules
of Procedure. No requirement in section 5 that only the COMELEC
en banc may refer a complaint to the Law Department for
investigation nor is there a rule against the COMELEC Chairman
directing the conduct of a preliminary investigation, even if he himself
were the complainant in his private capacity Where the complaint
was directly filed with the Law Department under Section 4 of Rule
32 of the COMELEC RULES of Procedure obviously there is no
need to refer such complaint to the same Law Department Under
Section 5 of Rule 34 of the COMELEC Rules of Procedure, the
preliminary investigation may be delegated to any of those officials
specified in the rule upon the direction of the COMELEC
Chairman(Laurel vs. Presiding Judge, RTC Manila Br 10, 323 SCRA
778)

4. A provincial election supervisor authorized to conduct a

preliminary investigation may file a case without need of approval of
the provincial prosecutor. (Pp. Vs. Inting,187 SCRA 788)

The COMELEC can deputize prosecutors to investigate and

prosecute offenses even after election. (Pp. Vs. Basilla,179
SCRA 87)
Since it is a preliminary investigation, it is the COMELEC who will
determine the existence of probable cause, the
complainant cannot ask it to gather evidence in support of
the complaint. (Kilosbayan Inc vs. COMELEC,280 SCRA
8920
The court in which a criminal case was filed may order the
COMELEC to order a reinvestigation. (Pp. Vs. Delgado,
189 SCRA 715)
A prosecutor who was deputized by the COMELEC cannot oppose
the appeal filed by the COMELEC from the dismissal of a
case, since the power to prosecute election offenses is
vested in the COMELEC.(COMELEC vs. Ssilva,286 SCRA
177)