by final judgment to run for Mayor in the 10
ELECTION LAWS
QUESTIONS AND
ANSWERS
Q — Rev. Nardo B. Cayat filed his
certificate of candidacy for Mayor of
Buguias, Benguet for the May 2004
elections. Thomas Palileng, another
candidate for Mayor filed a petition to
annul/nullify his certificate of candidacy
and/or to disqualify on the ground that
Cayat has been convicted of a crime
involving moral turpitude. Twenty three
days before the election, Cayat’s
disqualification became final and
executory. He, however won and was
proclaimed and assumed office. Palileng
filed an electoral protest contending that
Cayat was ineligible to run for mayor.
The Vice-Mayor intervened and
contended that he should succeed Cayat
in case he is disqualified because Palileng
was only a second placer, hence, he cannot
be declared as the winner. Is the
contention of the Vice-Mayor correct?
Why?
ANS: No, because there was no second
placer, hence, Palileng should be proclaimed
as the winner on the following grounds:
First, the COMELEC’s Resolution of 12
April 2004 cancelling Cayat’s certificate of
candidacy due to disqualification became
final and executory on 17 April 2004 when
Cayat failed to pay the prescribed filing fee.
Thus, Palileng was the only candidate for
Mayor of Buguias, Benguet in the 10 May
2004 elections. Twenty-three days before the
election day, Cayat was already disqualified
May 2004 elections. As the only candidate,
Palileng was not a second placer. On the
contrary, Palileng was the sole and only
placer, second to none. The doctrine on the
rejection of the second placer, which triggers
the rule on succession, does not apply in the
present case because Palileng is not a
second-placer but the only placer.
Consequently, Palileng’s proclamation as
Mayor of Buguias, Benguet is beyond
question.
Second, there are specific requirements for
the application of the doctrine on the
rejection of the second placer. The doctrine
will apply in Bayacsan’s favor, regardless of
his intervention in the present case, if two
conditions concur: (1) the decision on
Cayat’s disqualification remained pending
on election day, 10 May 2004, resulting in
the presence of two mayoralty candidates for
Buguias, Benguet in the elections; and (2)
the decision on Cayat’s disqualification
became final only after the elections. (Cayat
v. COMELEC, April 27, 2007).
Q — It was contended that the doctrine
of rejection of the second placer laid down
in Labo v. COMELEC should apply. Is
the contention correct? Why?
ANS: No. Labo, Jr. v. COMELEC, which
enunciates the doctrine on the rejection of
the second placer, does not apply because in
Labo there was no final judgment of
disqualification before the elections. The
doctrine on the rejection of the second
placer was applied in Labo and a host of
other cases because the judgment declaring
the candidate’s disqualification in Labo and
the other cases had not become final before
the elections. Labo and other cases applying
the doctrine on the rejection of the second
placer have one common essential condition
– the disqualification of the candidate had
not become final before the elections. This
essential condition does not exist in the
present case. (Cayat v. COMELEC).
Reason in Labo.
In Labo, Labo’s disqualification became
final only on 14 May 1992, three days after
the 11 May 1992 elections. On election day
itself, Labo was still legally a candidate. In
the case of Cayat he was disqualified by
final judgment 23 days before the 10 May
2004 lections. On election day, Cayat was
no longer legally a candidate for mayor. In
short, Cayat’s candidacy for Mayor was
legally non-existent in the 10 May 2004
elections.
Q — What is the effect if a candidate is
disqualified by final judgment? Explain.
ANS: The law expressly declares that a
candidate disqualified by final judgment
before an election cannot be voted for, and
votes cast for him shall not be counted. This
is a mandatory provision of law. Section 6 of
Republic Act No. 6646, The Electoral
Reforms Law of 1987, states:
Any candidate who has been declared by
final judgment to be disqualified shall not be
voted for, and the votes cast for him shall
not be counted. If for any reason a candidate
is not declared by final judgment before an
election to be disqualified and he is voted
for and receives the winning number of
votes in such election, the Court or
Commission shall continue with the trial and
hearing of the action, inquiry, or protest and,
upon motion of the complainant or any
intervenor, may during the pendency thereof
order the suspension of the proclamation of
such candidate whenever the evidence of his
guilt is strong.
Section 6 of the Electoral Reforms Law of
1987 covers two situations. The first is when
the disqualification becomes final before the
elections, which is the situation covered in
the first sentence of Section 6. The second is
when the disqualification becomes final
after the elections, which is the situation
covered in the second sentence of Section 6.
The present case falls under the first
situation. Section 6 of the Electoral Reforms
Law governing the first situation is
categorical: a candidate disqualified by final
judgment before an election cannot be voted
for, and votes cast for him shall not be
counted. The Resolution disqualifying Cayat
became final on 17 April 2004, way before
the 10 May 2004 elections. Therefore, all
the 8, 164 votes cast in Cayat’s favor are
stray. Cayat was never a candidate in the 10
May 2004 elections. Palileng’s proclamation
is proper because he was the sole and only
candidate, second to none. (Cayat v.
COMELEC).
Q — Why is the proclamation of Cayat
void? Explain.
ANS: Cayat’s proclamation is void because
the decision disqualifying him had already
become final on 17 April 2004. There is no
longer any need to ascertain whether there
was actual knowledge by the voters of his
disqualification when they casted their votes
on election day because the law mandates
that Cayat’s votes “shall not be counted”.
There is no disenfranchisement of the
voters. Rather, the voters are deemed by law
to have deliberately voted for a non-
candidate, and thus their votes are stray and
“shall not be counted”. (Cayat. v.
COMELEC).
Q — Is the intervention of the Vice-
Mayor proper? Why?
ANS: No. The petition-in-intervention
should be rejected because the doctrine on
the rejection of the second placer does not
apply to this case. The doctrine applies only
if the winning candidate’s disqualification
has not yet become final and executory
before the election. In this case, the
disqualification was final and executory
before the election, hence, there was no
second placer. (Cayat v. COMELEC).
Three-term limit;
even if “as caretaker”.
Q — Mayor Marino Morales ran for a
fourth term despite having served for
three (3) consecutive terms as Mayor of
Mabalacat, Pampanga. In answer to a
petition to cancel his certificate of
candidacy, he alleged that while he served
his second term, he did it as a “caretaker
of the office” or as a “de facto officer”
because he was suspended by the
Ombudsman from January 16, 1999 to
July 15, 1999 and that his proclamation
was declared void and which became final
and executory on August 6, 2001. The
COMELEC declared him disqualified.
Before the Supreme Court, he contended
that his second term from July 1, 1999 to
June 30, 2001 may not be counted since
his proclamation was void. Is the
contention correct? Why?
ANS: No, because his service from July 1,
1999 to June 30, 2001 was for a full term,
hence, the three-term limit rule applies to
him. This is especially so that he assumed
office. He served as mayor up to June 30,
2001. He was mayor for the entire period
notwithstanding the decision in the electoral
protest case ousting him as mayor. As held
in Ong v. Alegre, G.R. Nos. 162395 and
163354, January 23, 2006, 479 SCRA 473,
such circumstance does not constitute an
interruption in serving the full term. In Ong,
he served the full term even as there was a
declaration of failure of election.
Section 8, Article X of the Constitution
provides that the terms of the office of
elected local officials x x x, shall be three
years and no such official shall serve for
more than three consecutive terms. x x x
Section 43(b) of R.A. No. 7160 (the Local
Government Code) clearly provides that no
local official shall serve for more than three
consecutive terms in the same position.
Morales has been mayor of Mabalacat
continuously without any break since July 1,
1995, hence, he is disqualified. (Rivera III,
et al. v. COMELEC, G.R. No. 167591 and
Dee v. COMELEC, et al., G.R. No. 170577,
May 6, 2007).
Q — Explain the reason for the
maximum term limit.
ANS: The framers of the Constitution
wanted to establish some safeguards against
the excessive accumulation of power as a
result of consecutive terms.
As held in Latasa v. COMELEC, G.R. No.
154829, December 10, 2003, 417 SCRA
601, the three-term limit is an exception to
the people’s freedom to choose those who
will govern them in order to avoid the evil
of a single person accumulating excessive
power over a particular territorial
jurisdiction as a result of a prolonged stay in
the same office. (Rivera III, et al. v.
COMELEC, et al., G.R. No. 167591 and
companion case, May 9, 2007).
Q — Is not the case of Morales similar
to the case of Lonzanida v COMELEC?
Explain.
ANS: No. In Lonzanida v. COMELEC,
while he assumed office, he voluntarily
vacated when there was a declaration of
failure of election. He did not fully serve the
term, hence, he was qualified to run for a
third term.
The difference between the case at bench
and Lonzanida is at once apparent. For one,
in Lonzanida, the result of the mayoralty
elections was declared a nullity for the
stated reason of “failure of election”, and, as
a consequence thereof, the proclamation of
Lonzanida as mayor-elect was nullified,
followed by an order for him to vacate the
office of the mayor. For another, Lonzanida
did not fully serve the 1995-1998 mayoral
term, there being an involuntary severance
from office as a result of legal processes. In
fine, there was an effective interruption of
the continuity of service.
On the other hand, the failure-of-election
factor does not obtain in the present case.
But more importantly, here, there was
actually no interruption or break in the
continuity of Francis’ service respecting the
1998-2001 term. Unlike Lonzanida, Francis
was never unseated during the term in
question; he never ceased discharging his
duties and responsibilities as mayor of San
Vicente, Camarines Norte for the entire
period covering the 1998-2001 term.
Instead, Ong v. Alegre applies to Morales.
Francis Ong was elected and assumed the
duties of the mayor of San Vicente,
Camarines Norte for three consecutive
terms. But his proclamation as mayor in the
May 1998 election was declared void. As
ruled, his service for the term 1998 to 2001
is for the full term. Clearly, the three-term
limit rule applies to him. There is no reason
why this ruling should not also apply to
Morales who is similarly situated. (Rivera
III, et al. v. COMELEC, et al., May 9,
2007).
Q — Morales cited Borja v. COMELEC
to apply to him. Is this case applicable?
Why?
ANS: No, because with the death of Mayor
Cruz, Capco assumed office as mayor by
virtue of the principle of succession, he
being the vice-mayor. He was not therefore,
elected even if he served the rest of the term
of the mayor, hence, his assumption of the
office of the mayor upon the death of the
incumbent mayor may not be regarded as a
term.
Similarly, in Adormeo v. COMELEC, G.R.
No. 147927, February 4, 2002, 376 SCRA
90, it was held that assumption of the office
of mayor in a recall election for the
remaining term is not the “term”
contemplated under Section 8, Article X of
the Constitution and Section 43(b) of R.A.
7160 (the Local Government Code). There
was a “break” in the service of the mayor.
He was a “private citizen” for a time before
running for mayor in the recall elections.
(Rivera III, e al. v. COMELEC, et al., G.R.
No. 167591, May 9, 2007).
Q — What is the effect if the certificate of
candidacy of a candidate is cancelled?
Explain.
ANS: 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. (Secs. 6 and 7, RA
6646).
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 a
stray vote but it shall not invalidate the
whole ballot. (Sec. 211, Omnibus Election
Code).
Morales can not be considered a candidate
in the May 2004 elections. Not being a
candidate, the votes cast for him should not
be counted and must be considered stray
votes. (Rivera III, et al. v. COMELEC, G.R.
No. 167591, May 9, 2007).
Q — It was contended that since
Morales was disqualified, the second
placer should be proclaimed as the
winner. Is the contention correct? Why?
ANS: In Labo v. COMELEC, the Court has
ruled that a second place candidate cannot
be proclaimed as a substitute winner.
The rule is that, the ineligibility of a
candidate receiving majority votes does not
entitle the eligible candidate receiving the
next highest number of votes to be declared
elected. A minority or defeated candidate
cannot be deemed elected to the office.
As a consequence of ineligibility, a
permanent vacancy in the contested office
has occurred. This should now be filled by
the vice-mayor in accordance with Sec. 44
of the Local Government Code. (Rivera III,
et al. v. COMELEC, et al., G.R. No. 167591,
May 9, 2007 citing Labo v. COMELEC,
G.R. No. 105111, July 3, 1992, 211 SCRA
297).
Q — What are the requirements which
must concur for the three-term limit to
apply?
ANS: For the three-term limit to apply, the
following two conditions must concur:
1) that 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. (Lonzanida v.
COMELEC, G.R. No. 133495, September 3,
1998, 295 SCRA 157; Ong v. Alegre, 479
SCRA 473; Adormeo v. COMELEC, 376
SCRA 90; Rivera III, et al. v. COMELEC, et
al., G.R. No. 167591, May 9, 2007).
 Effect if there is a tie.
Q — What is the proper procedure to be
resorted to in case of a tie? Explain.
ANS: To resolve the tie, there shall be
drawing of lots. Whenever it shall appear
from the canvass that two or more
candidates have received an equal and
highest number of votes, or in cases where
two or more candidates are to be elected for
the same position and two or more
candidates received the same number of
votes for the last place in the number to be
elected, the board of canvassers, after
recording this fact in its minutes, shall by
resolution, upon five days notice to all the
tied candidates, hold a special public
meeting at which the board of canvassers
shall proceed to the drawing of lots of the
candidates who have tied and shall proclaim
as elected the candidates who may favored
by luck, and the candidates so proclaimed
shall have the right to assume office in the
same manner as if he had been elected by
plurality of votes. The board of canvassers
shall forthwith make a certificate stating the
name of the candidate who had been favored
by luck and his proclamation on the basis
thereof.
Nothing in this section shall be construed as
depriving a candidate of his right to contest
the election. (Sec. 240, BP 881; Tugade v.
COMELEC, et al., G.R. No. 171063, March
2, 2007).
Withdrawal of certificate of
candidacy.
Q — Hans Roger filed his certificate of
candidacy but withdrew the same. He was
substituted by Joy Luna but the
COMELEC denied due course to her
certificate on the ground that Hans being
under age, he could not have filed a valid
certificate of candidacy. There was,
however, no petition to deny Hans
certificate of candidacy. Did the
COMELEC act correctly? Why?
ANS: No. The COMELEC acted with
grave abuse of discretion amounting to lack
or excess of jurisdiction in declaring that
Hans Roger, being under age, could not be
considered to have filed a valid certificate of
candidacy and, thus, could not be validly
substituted by Luna. The COMELEC may
not, by itself, without the proper
proceedings, deny due course to or cancel a
certificate of candidacy filed in due form.
(Cipriano v. COMELEC, G.R. No. 158830,
August 10, 2004, 436 SCRA 45). In Sanchez
v. Del Rosario, the Court ruled that the
question of eligibility or ineligibility of a
candidate for non-age is beyond the usual
and proper cognizance of the COMELEC.
If Hans Roger made a material
misrepresentation as to his date of birth or
age in his certificate of candidacy, his
eligibility may only be impugned through a
verified petition to deny due course to or
cancel such certificate of candidacy under
Section 78 of the Election Code.
In this case, there was no petition to deny
due court to or cancel the certificate of
candidacy of Hans Roger. The COMELEC
only declared that Hans Roger did not file a
valid certificate of candidacy and, thus, was
not a valid candidate in the petition to deny
due course to or cancel Luna’s certificate of
candidacy. In effect, the COMELEC,
without the proper proceedings, cancelled
Hans Roger’s certificate of candidacy and
declared the substitution of Luna invalid.
(Luna v. COMELEC, et al., G.R. No.
165983, April 24, 2007).
 ANS: No. General resemblance is not
enough to warrant the conclusion that two
Pre-proclamation writings are by the same hand. (Silverio v.
controversy; extent of power of Clamor, 125 Phil. 917 (1967)).
COMELEC.
In order to reach the conclusion that two
writings are by the same hand there must not
only be present class characteristics but also
individual characteristics or ‘dents and
Q — What is the extent of the power of
scratches’ in sufficient quantity to exclude
the COMELEC in pre-proclamation
the theory of accidental coincidence; to
controversy? Explain.
reach the conclusion that writings are by
different hands we may find numerous
ANS: It is a well-established rule in pre-
likeness in class characteristics but
proclamation cases that the Board of
divergences in individual characteristics, or
Canvassers is without jurisdiction to go
we may find divergences in both, but the
beyond what appears on the face of the
divergence must be something more than
election return. The rationale is that a full
mere superficial differences. (Osborn’s
reception of evidence aliunde and the
Questioned Documents, p. 244; Delos Reyes
meticulous examination of voluminous
v. COMELEC, et al., G.R. No. 170070,
election documents would run counter to the
February 28, 2007).
summary nature of a pre-proclamation
controversy. However, this rule is not
without any exception. In Lee v.
Neighborhood rule.
Commission on Elections, it was held that if
there is a prima facie showing that the return
The votes contested in this appeal are all
is not genuine, several entries having been
misplaced votes, i.e., votes cast for a
omitted in the questioned election return, the
candidate for the wrong or inexistent office.
doctrine does not apply. The COMELEC is
In appreciating such votes, the COMELEC
thus not powerless to determine if there is
may applied the “neighborhood rule.” As
basis for the exclusion of the questioned
used by the Court, this nomenclature,
returns. (G.R. No. 157004, July 4, 2003, 405
loosely based on a rule of the same name
SCRA 303; Ewoc, et al. v. COMELEC, et
devised by the House of Representatives
al., G.R. No. 171882, April 3, 2007).
Electoral Tribunal (HRET) in Nograles v.
Dureza, HRET Case No. 34, June 16, 1989,
1 HRET Rep. 138), refers to an exception to
Handwritings have only one general the rule on appreciation of misplaced votes
appearance. under Section 211(19) of Batas Pambansa
Blg. 881 (Omnibus Election Code) which
provides:

Any vote in favor of a person who has not

Q — May the COMELEC invalidate filed a certificate of candidacy or in favor of
certain ballots merely on a finding that a candidate for an office for which he did
the writings have the same general not present himself shall be considered as a
appearance and pictorial effect? Explain. stray vote but it shall not invalidate the
whole ballot.
Section 211(19) is meant to avoid confusion
in the minds of the election officials as to
the candidates actually voted for and to
stave off any scheming design to identify the
vote of the elector, thus defeating the
secrecy of the ballot which is a cardinal
feature of our election laws. (Amurao v.
Calangi, 10 Phil. 347 (1958)). Section
211(19) also enforces Section 195 of the
Omnibus Election Code which provides that
in preparing the ballot, each voter must “fill
his ballot by writing in the proper place for
each office the name of the individual
candidate for whom he desires to vote.”
Excepted from Section 211(19) are ballots
with (1) a general misplacement of an entire
series of names intended to be voted for the
successive offices appearing in the ballot
(Cordero v. Hon. Moscardon, 217 Phil. 392
(1984)); (2) a single (Farin v. Gonzales, 152
Phil. 598 (1973)) or double (Sarmiento v.
Quemado, No. L-18027, 29 June 1962, 5
SCRA 438) misplacement of names where
such names were preceded or followed by
the title of the contested office or where the
voter wrote after the candidate’s name a
directional symbol indicating the correct
office for which the misplaced name was
intended (Moya v. Del Fierro, 69 Phil. 199
(1939)); and (3) a single misplacement of a
name written (a) off-center from the
designated space (Mandac v. Samonte, 54
Phil. 706 (1930)), (b) slightly underneath the
line for the contested office (Sarmiento v.
Quemado, No. L-18027, 29 June 1962, 5
SCRA 438; Moya v. Del Fierro, 69 Phil. 199
(1939)), (c) immediately above the title for
the contested office ((Villavert v. Fornier, 84
Phil. 756 (1949)), or (d) in the space for an
office immediately following that for which
the candidate presented himself. ((Abad v.
Co, G.R. No. 167438, 25 July 2006, 496
SCRA 505 and Ferrer v. Commission on
Elections, 386 Phil. 431 (2000)). In these
instances, the misplaced votes are
nevertheless credited to the candidates for
the office for which they presented
themselves because the voters’ intention to
so vote is clear from the face of the ballots.
This is in consonance with the settled
doctrine that ballots should be appreciated
with liberality to give effect to the voters’
will. (Velasco v. COMELEC, et al., G.R.
No. 166931, February 22, 2007).
Marked ballot.
Q — When is a ballot considered as
marked? Explain.
ANS: In order for a ballot to be considered
marked, in the sense necessary to invalidate
it, it must appear that the voter designedly
place some superfluous sign or mark on the
ballot which might serve to identify it
thereafter. No ballot should be discarded as a
marked ballot unless its character as such is
unmistakable. The distinguishing mark
which the law forbids to be placed on the
ballot is that which the elector may have
placed with the intention of facilitating the
means of identifying said ballot, for the
purpose of defeating the secrecy of suffrage
which the law establishes. Thus, marked
ballots are ballots containing distinguishing
marks, the purpose of which is to identify
them. (Perman v. COMELEC, et al. G.R.
No. 174010, February 8, 2007, Tinga, J).
Failure of election.
Q — When is there failure of election?
ANS: There are three instances where a
failure of elections may be declared, thus:
(a) the election in any polling place has not
been held on the date fixed on account of
force majeure, violence, terrorism, fraud or
other analogous causes;
(b) the election in any polling place has been
suspended before the hour fixed by law for
the closing of the voting on account of force
majeure, violence, terrorism, fraud or other
analogous causes; or
(c) after the voting and during the
preparation and transmission of the election
returns or in the custody or canvass thereof,
such election results in a failure to elect on
account of force majeure, violence,
terrorism, fraud or other analogous causes.
In all three instances, there is a resulting
failure to elect. In the first instance, the
election has not been held. In the second
instance, the election has been suspended. In
the third instance, the preparation and the
transmission of the election returns give rise
to the consequent failure to elect; the third
instance is interpreted to mean that nobody
emerged as a winner. (Mutilan v.
COMELEC, et al., G.R. No. 171248, April
2, 2007).
Note:
None of the three instances is present in this
case. In this case, the elections took place. In
fact, private respondent was proclaimed the
winner. Petitioner contests the results of the
elections on the grounds of massive
disenfranchisement, substitute voting, and
farcical and statistically improbable results.
Petitioner alleges that no actual election was
conducted because the voters did not
actually vote and the ballots were filled up
by non-registered voters.
Q — May an interlocutory order of a
COMELEC Division be the subject of
certiorari to the SC? Explain.
ANS: As a rule, No. The exception is in an
unusual case where the petition for certiorari
questioning the interlocutory order of a
COMELEC Division was pending before
the SC, the main case which was meanwhile
decided by the COMELEC En Banc was
likewise elevated to the Court. Thus, there
was a situation where the petition for
certiorari questioning the interlocutory
orders of the COMELEC Division and the
petition for certiorari and prohibition
assailing the Resolution of the COMELEC
En Banc on the main case were
consolidated. The issues raised in the
petition for certiorari were also raised in the
main case and therefore there was actually
no need to resolve the petition assailing the
interlocutory orders. (Rosal v. COMELEC,
G.R. No. 168253 and 172741, March 16,
2007; Soriano, Jr., et al. v. COMELEC, et
al., G.R. No. 164496-505, April 2, 2007).
Note:
The general rule is that a decision or an
order of a COMELEC Division cannot be
elevated directly to the SupremeCourt
through a special civil action for certiorari.
Furthermore, a motion to reconsider a
decision, resolution, order, or ruling of a
COMELEC Division shall be elevated to the
COMELEC En Banc. However, a motion to
reconsider an interlocutory order of a
COMELEC Division shall be resolved by
the division which issued the interlocutory
order, except when all the members of the
division decide to refer the matter to the
COMELEC En Banc.
Thus, in general, interlocutory orders of a
COMELEC Division are not appealable, nor
can they be proper subject of a petition for
certiorari. To rule otherwise would not only
delay the disposition of cases but would also
unnecessarily clog the Court docket and
unduly burden the Court. This does not
mean that the aggrieved party is without
recourse if a COMELEC Division denies the
motion for reconsideration. The aggrieved
party can still assign as error the
interlocutory order if in the course of the
proceedings he decides to appeal the main
case to the COMELEC En Banc. The
exception enunciated in Kho and Repol is
when the interlocutory order of a
COMELEC Division is a patent nullity
because of absence of jurisdiction to issue
the interlocutory order, as where a
COMELEC Division issued a temporary
restraining order without a time limit, which
is the Repol case, or where a COMELEC
Division admitted an answer with counter-
protest which was filed beyond the
reglementary period, which is the Kho case.
The Court has already ruled in Reyes v. RTC
of Oriental Mindoro, that “it is the decision,
order or ruling of the COMELEC En Banc
that, in accordance with Section 7, Art. IX-A
of the Constitution, may be brought to the
Supreme Court on certiorari.” The exception
provided in Kho and Repol is unavailing in
this case because unlike in Kho and Repol,
the assailed interlocutory orders of the
COMELEC First Division in this case are
not a patent nullity. The assailed orders in
this case involve the interpretation of the
COMELEC Rules of Procedure. Neither will
the Rosal case apply because in that case the
petition for certiorari questioning the
interlocutory orders of the COMELEC
Second Division and the petition for
certiorari and prohibition assailing the
Resolution of the COMELEC En Banc on
the main case were already consolidated.
The Court also notes that the COMELEC
First Division has already issued an Order
dated 31 May 2005 dismissing the protests
and counter-protests in EPC Nos. 2004-36,
2004-37, 2004-38, 2004-39, 2004-40, 2004-
41, 2004-42, 2004-43, 2004-44, and 2004-
45 for failure of the protestants and
protestees to pay the required cash deposits.
Thus, the Court have this peculiar situation
where the interlocutory order of the
COMELEC First Division is pending before
the Court but the main case has already been
dismissed by the COMELEC First Division.
This situation is precisely what the Court are
trying to avoid by insisting on strict
compliance of the rule that an interlocutory
order cannot by itself be the subject of an
appeal or a petition for certiorari.
Misrepresentation in a
certificate of candidacy; effect.
Q — When is misrepresentation in a
certificate of candidacy material?
Explain.
ANS: A misrepresentation in a certificate
of candidacy is material when it refers to a
qualification for elective office and affects
the candidate’s eligibility. Second, when a
candidate commits a material
misrepresentation, he or she may be
proceeded against through a petition to deny
due course to or cancel a certificate of
candidacy under Section 78, or through
criminal prosecution under Section 262 for
violation of Section 74. Third, a
misrepresentation of a non-material fact, or
a non-material misrepresentation, is not a
ground to deny due course to or cancel a
certificate of candidacy under Section 78. In
other words, for a candidate’s certificate of
candidacy to be denied due course or
cancelled by the COMELEC, the fact
misrepresented must pertain to a
qualification for the office sought by the
candidate. (Nelson T. Lluz, et al. v.
COMELEC, et al., G.R. No. 172840, June 7,
2007).
Q — If a candidate misrepresents his
profession, is he disqualified? Explain.

ANS: No. No elective office, not even the

office of the President of the Republic of the
Philippines, requires a certain profession or
occupation as a qualification. Profession or
occupation not being a qualification for
elective office, misrepresentation of such
does not constitute a material
misrepresentation. Certainly, in a situation
where a candidate misrepresents his or her
profession or occupation in the certificate of
candidacy, the candidate may not be
disqualified from running for office under
Section 78 as his or her certificate of
candidacy cannot be denied due course or
canceled on such ground. (Nelson T. Lluz, et
al. v. COMELEC, et al., G.R. No. 172840,
June 7, 2007)