Barnotes 2014 Elect

ELECTION LAW

By: Dean Hilario Justino F. Morales

GENERAL PRINCIPLES

SUFFRAGE the right and obligation of qualified citizens to vote in the election of certain national and local officials 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 government. It involves the choice or selection of candidates to public office by popular vote. (Sambrani vs. COMELEC, 438 SCRA 319)

PLEBISCITE a vote of the people expressing their choice for or 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 to secure the approval of the people directly affected, before certain proposed changes affecting local government units may be implemented.

INITIATIVE it is the process by which the registered voters directly propose amendments to the constitution or to propose, enact, amend laws, national or local, through an election called for the purpose. Local initiative is the legal process whereby the registered voters of a local government unit may directly propose, enact, or amend any ordinance. Initiative is a process of law-making by the people themselves without participation of their elected representatives. (Subic Bay Metropolitan Authority vs. COMELEC, 262 SCRA 492)

REFERENDUM it is the submission of a law passed by the national or local legislative body to the registered voters at an election called for the purpose for their ratification or rejection.

RECALL it is a method by which a local elective official 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 signed by a required percentage of the qualified voters. RA 9244 effectively amended Section 70 of the Local Government Code and thus, eliminated the preparatory recall assembly as one of the modes of initiating recall and provided for a new procedure in the conduct of recall initiated through written petition of registered voters.

Nature of Suffrage1. It is not a natural right of the citizen but merely a privilege to be given or withheld by the lawmaking power subject to constitutional limitations. It is not a necessary accompaniment of citizenship. It is granted to individuals only upon the fulfillment of certain minimum conditions deemed essential for the welfare of society.

2. In a sense of a right conferred by the Constitution, suffrage is classified as a political right, as well as bounden duty of every citizen, enabling him to participate in the process of government to assure that it truly derives its powers solely from the consent of the governed. The principle is that of one man, one vote.

The right of suffrage, as in the enjoyment of all other rights is not absolute. It is subject to existing substantive and procedural requirements embodied in the Constitution and statute books.

Power of Congress to regulate suffrage; constitutional mandateSince the right of suffrage is a political and not a natural right, it is within the power of the State to prescribe the manner in which such right shall be exercised. Congress is mandated by the Constitution (Sec. 2, Art. V):1. To provide a system for securing the secrecy and sanctity of the ballot, and for absentee voting by qualified Filipinos abroad, and

2.To design a procedure for the disabled and the illiterate to vote without the assistance of other persons.

ELECTION LAW 02 01. What are the qualifications of voters?

1. Filipino citizenship it may be by birth or naturalization.2. 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.3. 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 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.Voters Registration02.Discuss the System of Continuing Registration of Voters.

ANSWER: The System of Continuing Registration of Voters under RA 8189 requires the personal filing of application of registration for voters which shall be conducted daily, Monday to Friday, except Saturdays, Sundays and holidays, in the Office of the Election Officer, but not later than 120 days before a regular election or 90 days before a special election. (Sec. 8, RA 8189)

03.Does Section 5(d) of RA 9189 allowing the registration of voters who are immigrants or permanent residents in other countries by their mere act of executing an affidavit expressing their intention to return to the Philippines, violate the residency requirement in Section 1 of Article V of the Constitution?

ANSWER: NO. This is an exception to the residency requirement. The Constitutions framers intended to enfranchise as much as possible all Filipino citizens abroad who have not abandoned their domicile of origin. Congress enacted the law prescribing a system of overseas absentee voting in compliance with the constitutional mandate. Such mandate expressly requires that Congress provide a system of absentee voting that necessarily presupposes that the qualified citizen of the Philippines abroad is not physically present in the country. Under RA 9189, an immigrant may still be considered a qualified citizen of the Philippines abroad upon fulfilment of the requirement of registration under the new law for the purpose of exercising their right of suffrage. The qualified Filipino abroad who executed the affidavit is deemed to have retained his domicile in the Philippines. He is presumed not to have lost his domicile by his physical absence from this country. His having become an immigrant does not necessarily imply an abandonment of his intention to return to his domicile of origin, the Philippines. He must be given the opportunity to express that he has not actually abandoned his domicile in the Philippines by executing the affidavit. The execution of the affidavit is not the enabling or enfranchising act. The affidavit is not only proof of the intention of the immigrant or permanent resident to go back and resume residency in the Philippines, but more significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of origin. (Macalintal vs. COMELEC, GR No. 157013, July 11, 2003)

04.Are dual citizens, by virtue of RA 9225, qualified to register and vote?

ANSWER: YES. In Nicolas-Lewis vs. COMELEC, GR No. 162759, August 4, 2006, the Supreme Court ruled that those who retain or reacquire Philippine citizenship under RA 9225, may exercise the right to vote under the system of absentee voting in RA 8189. In effect, they are likewise exempt from the residency requirements prescribed under Article V. Section 1 of the Constitution. EXCEPTION: Under RA 9225, or Citizenship Retention and Re-Acquisition Act of 2003, the right to vote in the Philippines cannot be exercised by, or extended to those who are candidates for or are occupying any public office in the country of which they are naturalized citizens; and /or are in active service as commissioned or non-commissioned officers in the armed forces of the country in which they are naturalized citizens.Exceptions to Residency Requirement05.What are the two exceptions to the residency requirement in the exercise of the right of suffrage under Article V, Section 1 of the Constitution?

ANSWER: (1) Filipino Immigrants Abroad. Under RA 9189, an immigrant may still be considered a qualified citizen of the Philippines abroad upon fulfilment of the requirement of registration under the new law for the purpose of exercising their right of suffrage. The qualified Filipino abroad who executed the affidavit is deemed to have retained his domicile in the Philippines. He is presumed not to have lost his domicile by his physical absence from this country. His having become an immigrant does not necessarily imply an abandonment of his intention to return to his domicile of origin, the Philippines.(2)Dual Citizens. Those who retain or reacquire Philippine citizenship under RA 9225, may exercise the right to vote under the system of absentee voting in RA 8189. (Nicolas-Lewis vs. COMELEC, GR No. 162759, August 4, 2006)

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06.What is the procedural qualification for voters?

ANSWER: A citizen, in order to be qualified to exercise his right to vote, in addition to the minimum requirements set by the fundamental charter, is obliged by law to register under the provisions of RA 8189, otherwise known as the Voters registration ct of 1996. (Akbayan-Youth v. COMELEC, GR No. 147066, March 26, 2001)

07.What is the effect of registration on the right to vote, and the exercise of suffrage upon citizenship?ANSWER: Mere registration of a voter does not confer upon him the right to vote. It is a condition precedent to the exercise of the right to vote. It is a form of regulation, not a qualification. Likewise, the mere exercise of suffrage, continuous and uninterrupted stay in the Philippines, and other similar acts showing exercise of Philippine citizenship cannot take the place of election of Philippine citizenship. (Republic v. Sagun, GR No. 187567, February 15, 2012)

08.Are double registrants disqualified to vote?

ANSWER: NO. Double registrants are still qualified to vote provided that the COMELEC has to make a determination on which registration is valid and which is void because it would then give rise to the anomalous situation where a voter could vote in two precincts at the same time. COMELEC laid down the rule in Minute Resolution No. 00-1513 that while the first registration of any voter subsists, any subsequent registration thereto is void ab initio. Thus, in Maruhom v. COMELEC, GR No. 179430, July 27, 2009, it was held that Maruhoms prior registration as a voter in Marawi makes her subsequent registration in Marantao null and void. However, although her registration in Marantao is void, her registration in Marawi still subsists. She may be barred from voting or running for mayor in the former, but she may still exercise her right to vote, or even run for an elective post, in the latter.

09.What are the disqualifications of voters? How can such disqualifications be removed?ANSWERS:1. Any person sentenced by final judgment to suffer imprisonment for not less than one year.2. Any person adjudged by final judgment of having committed (a) any crime involving disloyalty to the government or (b) any crime against national security (c) firearms laws.3. Insane or incompetent persons as declared by competent authority.4. Under RA 9225, or Citizenship Retention and Re-Acquisition Act of 2003, the right to vote in the Philippines cannot be exercised by, or extended to those who are candidates for or are occupying any public office in the country of which they are naturalized citizens; and /or are in active service as commissioned or non-commissioned officers in the armed forces of the country in which they are naturalized citizens.

Disqualification by reason of conviction may be removed by:1) Plenary pardon 2) Amnesty 3) Lapse of 5 years after service of sentence (Sec. 111, RA 8189)

Exclusion Proceedings10.ANTONIO, wanted to file a petition to exclude BALDO from the list of registered voters in Barangay Sipsipnget. Petitioner ANTONIO contended that while BALDO was born and grew up in the barangay, the latter comes home to the barangay only for occasional visits and that he stays most of the time in the Capital town where he has been employed for the past 5 years.(1)In what forum must the petition be filed? (2) Decide whether to grant the petition or not.ANSWERS:(1)The question involving the right to vote shall be decided by the Municipal Trial Court and is expressly withheld from the COMELEC by constitutional provision.

(2)The petition shall not be granted. Any person who transfers residence to another town or city or country by reason of his occupation or profession or employment, shall be deemed not to have lost his original residence. (Sec. 9, RA 8189)

COMELEC Power Over Political Parties11.Can the COMELEC exercise jurisdiction on issues relating to political partys identity and leadership?

ANSWER: YES. The COMELECs constitutional power to register and regulate political parties includes the ascertainment of the identity of the political party and its legitimate officers responsible for its acts and the resolution of such controversies where one party appears to be divided into two wings under separate leaders each claiming to be the president of the entire party. (LDP vs. COMELEC, GR No. 161265, February 24, 2004, citing Kalaw vs. COMELEC, GR Nos. 86177-78, August 31, 1989) The COMELEC has the power and function to enforce and administer election all laws and regulations relative to the conduct of ELECTION LAW 04

an election. In the exercise of such power and in the discharge of such function, the COMELEC, has jurisdiction to rule upon the issue as to who, between the Party Chairman and the Secretary General, has the authority to sign certificates of candidacy of the official candidates of the party. The repercussions of the question of party identity and the leadership do not end at the validity of endorsement of the certificates of candidacy of persons claiming to be the partys standard bearer. The law grants a registered political party certain rights and privileges, which, naturally, redound to the benefit of its candidates. (LDP vs. COMELEC, GR No.161265, February 24, 2004)

Qualifications and Disqualifications12.What are the qualifications of candidates? When must the required qualifications be possessed?The common qualifications required of all elective officials are age, citizenship, residence, mere ability to read and write (Filipino or any other local language and dialect, for local elective officials) and registration as a voter.

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 Labo vs. COMELEC, 176 SCRA 1) It then becomes a ground for disqualification and eventual removal from office. This ruling was reiterated in Maquiling v. COMELEC, GR No. 195649, April 16, 2013, thus, the citizenship requirement for elective public office is a continuing one. It must be possessed not just at the time of renunciation of the foreign citizenship but continuously. Any act which violates the oath of renunciation opens the citizenship to attack. The required age qualification must be possessed by any candidate, national or local, on the day of election.

For national elective officials, natural-born Filipino citizenship is required. For local elective officials, the Local Government Code requires that they must be citizens of the Philippines either natural born or naturalized. The law does not specifically provide when must the required citizenship be possessed. But in Altarejos vs. COMELEC, 441 SCRA 655, the Supreme Courts reiterated its ruling in Frivaldo, 257 SCRA 727, that repatriation retroacts to the date of filing of ones application for repatriation. Accordingly, petitioners repatriation retroacted to the date he filed his application in 1997 and was, therefore, qualified to run for mayoralty position in the government in May 2004 elections.

Citizenship 13.Can a former natural-born Filipino citizen who reacquired Filipino citizenship through repatriation be eligible to run for congressman?

ANSWER: YES. 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, which is the citizenship requirement for members of Congress. Repatriation is effected 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)

14. Are persons with mere dual citizenship disqualified to run for elective local positions under Section 40(d) of the Local Government Code? What if the dual citizenship is acquired pursuant to RA 9225?

ANSWER: NO. The phrase dual citizenship in Section 40 (d) of RA 7160 must be understood as referring to dual allegiance. Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon filing of their certificate 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, supra) However, if the dual citizenship is voluntarily acquired through RA 9225, the Dual Citizenship Law, the same can be a ground for disqualification.

Disqualification to Vote and be Elected Under RA 9225

15.Who among those who re-acquired or retained Philippine citizenship under RA 9225 cannot exercise, or are not extended the right to vote or be elected to any public office in the Philippines?ANSWER: The right to vote or be elected to any public office in the Philippines cannot be exercised by, or extended to, those who (a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or (b) are in active service as commissioned or non-commissioned officers in the armed forces of the country in which they are naturalized. [Section 5(5a,b), RA 9225]

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In Nicolas-Lewis vs. COMELEC, GR No. 162759, August 4, 2006, the Supreme Court ruled that those who retain or reacquire Philippine citizenship under RA 9225, may exercise the right to vote under the system of absentee voting in RA 8189. In effect, they are likewise exempt from the residency requirements prescribed under Article V. Section 1 of the Constitution.

Requirement for Elective Office Under RA 922516.What procedural requirement must be complied with by those who re-acquired or retained Philippine citizenship under RA 9225, and who are seeking elective public office?

ANSWER: Those seeking elective public office in the Philippines who shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of filing of certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath. [Section 5(2), RA 9225]

Mere filing of certificate of candidacy cannot operate as an effective renunciation of foreign citizenship. The affiant-candidate must state in clear and unequivocal terms that he is renouncing all foreign citizenship for it to be effective. Absent an evidence that will show that Lopez complied with the provision of RA 9225, he is disqualified to run for Barangay Chairman of Barangay Bagacay. (Lopez vs. COMELEC, GR No.182701, July 23, 2008)

An oath of Allegiance to the Republic of the Philippines made before the Los Angeles Philippine Consul General does not substantially comply with the requirement of a personal and sworn renunciation of foreign citizenship because these are distinct requirements to be complied with for different purposes. The oath of allegiance is a requirement in reacquisition of Philippine citizenship by natural born-citizens who are already naturalized citizens of a foreign country as required by Section 3 of RA 9225, further there is nothing in the said oath that expressly makes a renunciation of the foreign citizenship. Section 5(2) of RA 9225 categorically requires persons seeking elective public office who either retained their Philippine citizenship before a public officer authorized to administer an oath simultaneous with or before filing off the certificate of candidacy. (Jacot vs. Dal, GR No. 179848, November 27, 2008) This rule applies to all those who have re-acquired their Filipino citizenship without regard as to whether they are still dual citizens or not. It is a pre-requisite imposed for the exercise of the right to run for public office. It is an additional qualification for elective office specific only to Filipino citizens who re-acquire their citizenship under Sec. 3 of RA 9225. It is the operative act that restores their right to run for public office. (Sobejana-Condon v. COMELEC, GR No. 198742, August 10, 2012)

Use of Foreign Passport 16A.Does the act of using a foreign passport constitute renunciation and loss of Philippine citizenship?ANSWER: YES. While the act of using a foreign passport is not one of the acts enumerated in Commonwealth Act No. 63 constituting renunciation and loss of Philippine citizenship, it is nevertheless an act which repudiates the very oath of renunciation required for a former Filipino citizen who is also a citizen of another country to be qualified to run for a local elective position. (Maquiling v. COMELEC, GR No. 195649, April 16, 2013)

Residence Qualification17.What is the rationale of the law in requiring candidates to have minimum period of residence in the area in which they seek to be elected?ANSWER: 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 residence requirement is rooted in the desire that officials of districts or localities be acquainted not only with the metes and bounds of their constituencies but, more important, with the constituents themselves, (Torayno vs. COMELEC, 337 SCRA 574)

18.Are immigrant visa or greencard holders eligible to run for public office?ANSWER: NO. A Filipino citizens immigration to a foreign country constitutes an abandonment of his domicile and residence in the Philippines. In other words, the acquisition of a permanent residency status is a foreign country constitutes a renunciation of the status as a resident of the Philippines. (Caasi vs. CA, 191 SCRA 229). But the act of a person surrendering her greencard to the Immigration and Naturalization Service of the US Embassy is clear indication of her intention to abandon her US residency. (Gayo vs. Verceles, 452 SCRA 504)

19. What are the requisites in the acquisition of a new domicile?ANSWER: In election cases, the Supreme Court treats domicile 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)

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The mere approval of the application of registration as a voter only shows, at most, that she had met the minimum residency requirement as a voter. This minimum requirement is different from that for acquiring a new domicile of choice for the purpose of running for public office. (Jalosjos v. COMELEC, GR. No. 193314, February 26, 2013)

20.When does a former Filipino citizen, who reacquired his lost Filipino citizenship, deemed to have reacquired his lost Philippine residency?ANSWER: In Coquilla vs. COMELEC, 385 SCRA 607, it was held that once a Filipino loses his citizenship or becomes a citizen of another country, he also loses his domicile of origin or residence in the Philippines. Should he reacquire his citizenship, it would carry with it the reacquisition of his residency in the Philippines. However, the period of his reacquired residency shall be counted from the date he reacquired his Philippine citizenship or actually took his oath of allegiance as a repatriated Filipino citizen.

21.Is Governor Emano, an incumbent Governor of Misamis Oriental, eligible to run for Mayor in Cagayan de Oro City, a highly urbanized city, in the elections held at the end of his third term as Governor?

ANSWER: YES. In Torayno vs. COMELEC, 337 SCRA 574, the Supreme Court upheld the residency qualification of Governor Emano, inasmuch as he has proven that he, together with his family had actually resided in a house he bought in 1973 in Cagayan de Oro City; had actually held office there during his three terms as provincial governor of Misamis Oriental, the provincial capitol being located therein; and had registered as voter in the city during the period required by law he could not be deemed a stranger or newcomer when he ran and was voted as city mayor. Petitioners put much emphasis on the fact that Cagayan de Oro City is a highly urbanized city whose voters cannot participate in the provincial elections. Such political subdivisions and voting restrictions, however, are simply for the purpose of parity representation. 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. (Ibid.)

22.Does mere property ownership in a locality confer upon a person the right to vote and be voted for an office? ANSWER: NO. In Dumpit-Michelena vs. Boado, 475 SCRA 290, the Supreme Court ruled that property ownership in not indicia of the right to vote or be voted for an office. A beach house is at most a place of temporary relaxation. It can hardly be considered a place of residence. Further, domicile is not easily lost. To successfully effect a change of domicile, there must be concurrence of the following requirements: (1) an actual removal or an actual change of domicile; (2) a bona fide intention of abandoning the former place of residence and establishing a new one; and (3) acts which corresponds with the purpose. Without clear and positive proofs of the concurrence of those 3 requirements, the domicile of origin continues. To effect change, there must be animus manendi coupled with animus revertendi. The intent to remain in the new domicile of choice must be for indefinite period of time, the change of residence must be voluntary, and the residence at the place chosen for the new domicile must be actual. The Supreme Court agreed with the Second Division of the COMELEC that Dumpit-Michelena failed to establish that she has abandoned her former domicile.

In Fernandez, v. HRET, GR No. 187478, December 29, 2009, it was ruled that the Constitution does not require a congressional candidate to be a property owner in the district where he seeks to run but only that he resides in the district for at least a year prior to the election day. To use ownership of property in the district as determinative indicium of permanence of domicile or residence implies that only the landed can establish compliance with the residency requirement. It would be, in effect, imposing a property requirement to the right to hold public office, which property requirement would be unconstitutional.

23.Do Section 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose additional qualification for candidate for senator? Corallary, can Congress enact a law prescribing qualifications for candidates for senator in addition to those laid down by the Constitution?

ANSWER: YES. Section 36(g) of RA 9165 and its implementing COMELEC Resolution, insofar as it requires mandatory drug testing of candidates for public office is unconstitutional as it effectively enlarges the qualification requirements enumerated in Section 3, Article VI of the Constitution. It adds another qualification layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate. Congress inherent legislative power are subject to certain substantive and constitutional limitations. It cannot require a candidate for senator to meet such qualification in addition to what the Constitution prescribes. The right of a citizens in the democratic process of election should not be defeated by unwarranted impositions of requirement not otherwise specified in the Constitution. (Social Justice Society vs. Dangerous Drugs Board, GR No.157870, November 3, 2008)

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Conviction of a Crime24.Are those convicted by final judgment of a crime involving moral turpitude who have not served their sentence and were granted probation disqualified to run for local elective office?ANSWER: NO. In Moreno vs. COMELEC, GR No. 168550, August 10, 2006, the Supreme Court ruled that those who have not served their sentence by reason of the grant of probation are not disqualified from running for local elective office because the two year period of ineligibility does not even begin to run. The grant of probation merely suspends the execution of the sentence.

While Section 40(a) of the Local Government Code allows prior convict to run for local elective office, the said provision should not be deemed to cover cases wherein the law imposes a penalty, either as principal or accessory, which has the effect of disqualifying the convict to run for elective office. (Jalosjos v. COMELEC, GR No. 205033, June 18, 2013)A sentence of prision mayor by final judgment is a ground for disqualification under Section 40 of the Local Government Code and under Section 12 of the Omnibus Election Code. It is also a material fact involving the eligibility of a candidate under Sections 74 and 78 of the Omnibus Election Code. (Jalosjos v. COMELEC, GR No. 193237, October 9, 2012)

Direct bribery is a crime involving moral turpitude. The Local Government Code is a codified set of laws that specifically applies to local government units. Section 40 thereof specifically and definitely provides for disqualifications of candidates for elective local positions. It is applicable to them only. On the other hand, Section 12 of the Omnibus Election Code speaks of disqualifications of candidates for any public office. It deals with the election of all public officers. Thus, Section 40 of the Local Government Code insofar as it governs the disqualifications of candidates for local positions, assumes the nature of a special law which ought to prevail. (Magno vs. COMELEC, 390 SCRA 495)

Those convicted by final judgment for violating his oath of allegiance to the Republic is also another ground for disqualification under the Local Government Code .

Removal from Office and Fugitives from Justice25.Who are considered fugitive from justice? Those removed from office as a result of an administrative case and fugitives from justice in criminal or non-political cases are also disqualified under the Local Government Code. However, 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) The term fugitive from justice includes not only those who flee after conviction to avoid punishment, but likewise who, after being charged, flee to avoid prosecution. (Marquez vs. COMELEC, 243 SCRA 538)

Filing of Certificate of Candidacy26.What is the purpose of the law in requiring the filing of certificate of candidacy and in fixing the time limit therefore?

ANSWER: The evident purpose of the law in requiring the filing of certificate of candidacy and in fixing the time limit therefore are: (a) 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 (b) to avoid confusion and inconvenience in the tabulation of the votes cast. For if the law did not confine the choice or election by the voters 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, GR No. 136351, July 28, 1999)

27.Give the effect of the filing of certificate of candidacy of the following:a. GALO LAGINGTALO, an employee of the PNOC-EDC, a government owned and controlled corporation without original charter, who filed his certificate of candidacy for municipal councilor; b. LITO LAPID an incumbent Senator who filed his certificate of candidacy for City Mayor of Makati; andc.TED FAILON, a broadcast journalist of ABS-CBN, who filed his certiicate of candidacy for congressman.ANSWERS:a. An appointive public official is considered resigned upon filing of his certificate. This includes an employee of a government owned or controlled corporation organized under the Corporation Code, since the law makes no distinction. (PNOC-EDC vs. NLRC, 222 SCRA 831)

In Quinto and Tolentino vs. COMELEC, GR No. 189698, February 22, 2010, the Supreme Court, in a motion for reconsideration, reversed its earlier ruling and thus declared as not UNCONSTITUTIONAL (1) Section 4(a) of COMELEC Resolution No. 8678, (2) the second proviso in the third paragraph of Section 13 of RA 9369, and (3) Section 66 of the Omnibus Election Code.

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b.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. 14, RA 9006, amending Sec. 67 of BP 881)

c.Any mass media columnist, commentator, announcer-reporter, on-air correspondent or personality are deemed resigned if so required by their employer. (Sec. 6, subpar. 60, RA 9006)

In Farinas vs. Executive Secretary, 417 SCRA 503, the Supreme Court upheld the constitutionality of Section 14 of RA 9006 which in effect repealed Section 67 of BP 881.

28.SGE filed his Certificate of Candidacy for Mayor of Candihay, Bohol. ASO, who was a candidate for councilor in the same municipality, filed before the COMELEC a Petition for Disqualification against SGA alleging that the latters COC was not properly sworn contrary to the requirement of the Omnibus Election Code and the 2004 Rules on Notarial Practice. ASO pointed out that in executing his COC, SGA merely presented his Community Tax Certificate to the notary public instead of presenting competent evidence of identity. Consequently, SGAS COC was declared by the COMELEC as had no force and effect and should be considered as not filed. Is the ruling of the COMELEC valid?

ANSWER: NO. It was grave abuse of discretion for the COMELEC to uphold ASOs claim that an improperly sworn COC is equivalent to possession of a ground for disqualification. The petition is not based on any of the grounds for disqualification as enumerated in Section 68 of the Omnibus Election Code and Section 40 of the Local Government Code. Nowhere therein does it specify that a defective notarization is a ground for the disqualification of a candidate.. Et the COMELEC would uphold that petition to disqualify a candidate for lack of qualifications or possessing some grounds for disqualification. The distinction between a petition for disqualification and the formal requirement in Section 73 of the Omnibus Election Code that a COC under oath is not simply a question of semantics as the statutes list the grounds for the disqualification of a candidate. Apart from the qualifications provided for in the Constitution, the power to prescribe qualifications for elective office and grounds for disqualification therefrom, consistent with constitutional provisions, is vested in Congress. However, laws prescribing the qualifications for and disqualifications from office are liberally construed in favor of eligibility since the privilege of holding an office is a valuable ones. (Amora v. COMELEC, GR No. 192280, January 25, 2011)

29.What is the effect of filing multiple candidacies?ANSWER: A person who files a certificate of candidacy for more than one office should not be eligible for any of them. (Sec 73, BP 881) However, before the deadline for filing certificates, he may withdraw all except one, declaring under oath the office for which he desires to be eligible and cancel the certificate of candidacy for the other office or offices. (Go vs. COMELEC, GR No. 147741, May 10, 2001)

30.What is the nature of the duty of the COMELEC to receive certificates of candidacy?ANSWER: 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) The COMELEC has no discretion to give or not to give due course to a certificate of candidacy. (Cipriano vs. COMELEC, 436 SCRA 45) EXCEPTION: Nuisance Candidacy. In denying due course to the certificate of candidacy of a presidential candidate, the Supreme Court held that there is no constitutional right to run for or hold public office and, particularly, to seek the Presidency what is recognized is merely a privilege subject to limitations imposed by law. The rationale behind the prohibition against nuisance candidates and the disqualification of candidates who have not evinced a bona fide intention to run for office is to divine the State has a compelling interest to ensure that its electoral exercises are rational, objective and orderly. Inevitably, the greater the number of candidates, the greater the opportunities for logistical confusion not to mention the increased allocation of time and resources in preparation for election- a disorderly election is not merely a textbook example of inefficiency but a rot that evades faith in our democratic institution. (Pamatong vs. COMELEC, 427 SCRA 96)

Substitution of Candidates31.What are the grounds for substitution of candidacy? What are the requisites for valid substitution?ANSWERS: The grounds for substitution of candidacy are death, disqualification or withdrawal. The requisites for valid substitution are: 1) The substitute must belong to the same political party. There is nothing in the Constitution or statute which requires as a 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) Section 77 of the OEC requires that there be an official candidate before candidate substitution proceeds. Thus, whether the ground for substitution is death, withdrawal or disqualification of a candidate, the said section unequivocally states that only an official candidate of a registered or accredited party may be substituted. (Tagolino v. HRET, GR No. 202202, March 19, 2013)

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2) The deceased, disqualified or withdrawn candidate must have duly filed a valid certificate of candidacy. 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. (Miranda vs. Abaya, 311 SCRA 617) 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. (Ibid.)

EXCEPTION: This does not include those cases where the certificate of candidacy of the person to be substituted had been denied due course and cancelled under Section 78 of the OEC. While the law enumerated the occasions where a candidate may be validly substituted, there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy. (Ibid.)

32.May a disqualified candidate and whose certificate of candidacy was denied due course and/or cancelled by the COMELEC be validly substituted?

ANSWER: NO. 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. Therefore, 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 Section 77 of the Code. (Miranda vs. Abaya, GR No. 136351, July 28, 1999) However, where a certificate of candidacy was never cancelled or denied due course by the COMELEC and the same was withdrawn before the COMELEC declared that he was not a valid candidate, and that COMELEC found that the substitute complied with all the procedural requirements for valid substitution, the latter can validly substitute the former. The question of eligibility or ineligibility of a candidate for non-age is beyond the usual and proper cognizance of the COMELEC if the candidate 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 or cancel such certificate of candidacy under Section 78 of the Election Code. Therefore, unless a candidates certificate of candidacy was denied due course or cancelled, his certificate of candidacy was valid and he may be validly substituted. (Luna vs. COMELEC, 522 SCRA 107)

33.Is substitution of candidacy allowed for barangay candidates even if their election is non-partisan and that there is no political party from which to designate the substitute?ANSWER: YES. The argument that inasmuch as the barangay election is non-partisan and that there can be no substitution because there is no political party from which to designate the substitute, ignores the purpose of election laws which is to give effect to, rather than frustrate the will of the people. The absence of a specific provision governing substitution of candidates in barangay elections cannot be inferred as a prohibition against said substitution. Such restrictive construction cannot be read into the law where the same is not written. There is more reason to allow the substitution of candidates where no political parties are involved than when political considerations or party affiliations reign, a fact that must have been assumed by law. Election contests involve public interests and technicalities and procedural barriers must yield if they constitute an obstacle to the determination of the true will of the electorate in the choice of their elective officials. (Rulloda vs COMELEC, 395 SCRA 365)

34.When is the deadline for filing of substituted certificate of candidacy?

ANSWER: Different deadlines were set to govern the specific circumstances that would necessitate the substitution of a candidate due to death, disqualification or withdrawal. In case of death or disqualification, the substitute had until midday of the election day to file the certificate of candidacy. In case of withdrawal, which is the situation at bench, the substitute should have filed the certificate of candidacy by December 4, 2009. The reason for the distinction can easily be divined. Unlike death or disqualification, withdrawal is voluntary. Generally, a candidate has sufficient time to ponder on his candidacy and to withdraw while the printing has not yet started. If a candidate withdraws after the printing, the name of the substitute candidate can no longer be accommodated in the ballot and a vote for the substitute will be just wasted. (Federico v. COMELEC, GR No. 199612, January 22, 2013)

Cancellation of Certificate of Candidacy

35.What is the nature of the power of the COMELEC to cancel certificate of candidacy?

ANSWER: The proceeding on the cancellation of a certificate of candidacy does not merely pertain to the administrative functions of the COMELEC. Cancellation proceedings involve the COMELECs quasi-judicial function which must first be decided by the COMELEC in division. Hence, the COMELEC en banc acted without

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jurisdiction when it ordered the cancellation of a candidates certificate of candidacy without first referring the case to a division for summary hearing. A summary proceeding does not mean that the COMELEC should throw away the requirements of notice and hearing. The COMELEC should have at least given notice to the candidate to give him the chance to adduce evidence to explain his side in the cancellation proceedings. The COMELEC has deprived the candidate of procedural due process of law when it approved the report of the Law Department without notice and hearing. (Bautista vs. COMELEC, 414 SCRA299)

When a candidate files his certificate of candidacy, the COMELEC has a ministerial duty to receive and acknowledge its receipt. The COMELEC may not, by itself, without the proper proceedings, deny due course to or cancel a certificate of candidacy filed in due form. A petition to deny due course to or cancel a certificate of candidacy shall be heard summarily after due notice. The law mandates that the candidates must be notified of the petition against them and should be given the opportunity to present evidence on their behalf. This is the essence of due process. (Luna vs. COMELEC, 522 SCRA 107)

36.What are the grounds for disqualification of candidates? What constitute falsity of material representation in the certificate of candidacy? What are the consequences of a candidate found guilty of misrepresentation?ANSWERS: The grounds for the disqualification of candidates are (1) violation of Omnibus Election Code Sec. 68; (2) being a nuisance candidate Sec. 69; and (3) falsity of material representation in certificate of candidacy. - Sec. 78In order to justify the cancellation of the certificate of candidacy under Section 78 of BP 881, it is essential that the false representation mentioned therein pertains to a material matter, i.e., it refers to a qualification for elective office and affects the candidates eligibility. Profession or occupation not being a qualification for elective office, misrepresentation of such does not constitute a material misrepresentation. No elective office, not even the office of the President of the Republic of the Philippines, requires certain profession or occupation as a qualification. (Lluz vs. COMELEC, 523 SCRA 456)

Aside from the requirement of materiality, a false representation under Sec. 78 must consist of a deliberate attempt to mislead, misinform or hide a fact which would otherwise render a candidate ineligible. In other words, it must be made with an intention to deceive the electorate as to ones qualifications for public office. The use of surname, when not intended to mislead or deceive the public as to ones identity, is not within the scope of the provision. (Salcedo II vs. COMELEC, 312 SCRA 447)

To prove whether or not there has been material representation, the same must not only be material, but also deliberate and willful. (Romualdez vs. COMELEC, 248 SCRA 30 and Fornier vs. COMELEC GR No. 161824, March 3, 2004)

A candidate guilty of misrepresentation may be (1) prevented from running, or (2) if elected, from serving, or (3) prosecuted for violation of the election laws. (Bautista vs. COMELEC, 414 SCRA 299)

Effects of Disqualification Cases37.What are the effects of a disqualification case against a candidate for elective office?

ANSWER: (1) 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. In Cayat vs. COMELEC, GR 163776, April 24, 2007, due to his failure to pay the prescribed filing fee for his motion for reconsideration, the disqualification of Cayat and the subsequent cancellation of his certificate of candidacy became final 23 days before the 2004 elections. Therefore, all the 8,164 votes cast in his favor are stray. He was never a candidate in the 2004 elections.

(2) 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, his violation of the provisions of the preceding sections shall not prevent his proclamation and assumption of office. Section 6 of RA 6646 and Section 72 of the OEC require a final judgment before the election for the votes of a disqualified candidate to be considered stray. To do so would amount to disenfranchising the electorate in whom sovereignty resides. For in voting a candidate who has not been disqualified by final judgment during the election day, the people voted for him bona fide, without any intention to misapply their franchise, and in the honest belief that the candidate was then qualified to be the person to whom they would entrust the exercise of the powers of the government. (Codilla Sr. vs. De Venecia,GR. No. 150605, December 10, 2002)

38.What are the prohibited contributions and donations?No political contribution shall be made by the following:1. Public or private financial institutions

2. Public utilities and those who exploit natural resources

Thus, where an operator of a public utility disguised a contribution to a candidate for governor as loan, the promissory not is void.(Halili vs. Court of Appeals, 83 SCRA 633)

3. Persons who hold contracts or sub-contracts to supply the government with goods and services

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4. Persons granted franchises, incentives, exemptions or similar privileges by the government5.Persons granted loans in excess of P25,000 by the government or any of itssubdivisions or instrumentalities6.Schools which received grants of public funds of at least P100,0007.Employees in the Civil Service or members of the Armed Forces8.Foreigners (Sec. 95, BP 881)9.Corporations (Sec. 36(9), Corp. Code)

It is prohibited for any candidate, his spouse, relative within second degree of consanguinity or affinity, or representative to make any contribution for any structure for public use or for use of any religious or civic organization, except the normal religious dues and payment for scholarships established and school contributions habitually made before the campaign period. (Sec. 104, BP 881)

39.What are the lawful and prohibited election propaganda?The following are the lawful propaganda1. Formsa. Pamphlets, leaflets, cards, decals, stickers and written or printed materials not more than 8 1/2 inches by 14 inchesb.Handwritten/printed lettersc.cloth, paper or cardboard, posters measuring not more than 2 feet by 3 feet by 8 feet allowed in announcing at the site on occasion of a public meeting or rally, may be displayed 5 days before the date of rally but shall be removed within 24 hours after said rally.d.Paid print advertisements: page in broadsheets and page in tabloids thrice a week per newspaper, magazine or other publication during the campaign period. (Sec. 4, RA 9006)e.Broadcast Media (i.e., TV and Radio)National Positions: 120 minutes for TV, 180 minutes for RadioLocal Positions: 60 minutes for TV; 90 minutes for Radiof.Other forms of election propaganda not prohibited by the Omnibus Election Code and RA 9006, and authorized by the COMELEC.2. RequirementsAny published or printed political matter or broadcast of election propaganda by television or radio for or against a candidate or group of candidates to any public office shall bear and be reasonably legible or audible words political advertisements paid for, followed by the true and correct name and address of the candidate or party for whose benefit the election propaganda was printed or aired.If the broadcast is given free of charge by the radio or television station, it shall be identified by the word airtime for this broadcast was provided free of charge by followed by the true and correct name and address of the broadcast entity.Print, broadcast or outdoor advertisements donated to the candidate or political party shall not be printed, published, broadcast or exhibited without the written acceptance by the said candidate or political party. Such written acceptance shall be attached to the advertising contract and shall be submitted to the COMELEC. (Sec. 4, RA 9006)

40.What are the prohibited campaign?1. Public exhibition of a movie, cinematograph or documentary portraying the life or biography of a candidate during campaign period;

2. Public exhibition of a movie, cinematograph or documentary portrayed by an actor or media personality who is himself a candidate;

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 candidate or political party.Scope

a. Prohibiting the posting of decals and stickers except in the common posting area authorized by the COMELEC is not valid. (Adiong vs. COMELEC, 244 SCRA 272)

b. Mass media may report news relating to candidates, and mass media practitioners may give their opinion regarding candidates. (National Press Club vs. COMELEC, 207 SCRA 1)

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Rallies1. An application for permit for a rally shall not be denied except on the ground that a prior written application for the same purpose has been approved. A denial is appealable to the provincial election supervisor or COMELEC. (Sec. 87, BP 881)2.It is unlawful to give or accept transportation, food, drinks ore things of value within 5 hours before and after a public rally, before election day and on election day. (Sec. 89 BP 881)

41. What are the limitations on election expenses?ANSWER: The following are the limitations on election expenses under Sec. 13, RA 7166:1. Candidatesa. President and vice president P10 per voterb. Other candidates P3 per voter in his constituencyc. Candidate without political party P5 per voterd. Party/organization and coalition participating in the party- list system P5 per voter2. Political party and coalition P5 per voter in the constituency where it has candidates. (Sec. 13, RA 7166)

42.Who are required to file a statement of contribution and expenditures? What are the effects of failure to file? What are the penalties thereto?ANSWER:a. Every candidate and treasurer of political party shall file within 30 days after election day a statement of contributions and expenditures. b.All candidates are required to file whether winning, losing or withdrawn.

1. Effect of failure to file

No persons elected shall assume office until he and his political party have filed the required statements.

2. Penaltiesa. First Offense administrative fine from P1,000 to P30,000

b. Subsequent offensei. Administrative fine from P2,000 to P60,000

ii. Perpetual disqualification to hold public office (Sec. 14, RA 7166)Exception to the penalty of fine: Candidates for elective barangay office3. Effect of withdrawalA candidate who withdrew his certificate of candidacy must still file a statement of contributions and expenditures, for the law makes no distinction. (Pilar vs. COMELEC, 245 SCRA 759)

43.What composes the Board of Election Inspectors? What are its powers and functions?ANSWER: The Board of Election Inspectors shall be composed of a chairman and two members, all of whom are public schools 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 who are registered voters of the city or municipality may be appointed. (Sec. 13, RA 6646)

The appointment of military personnel as members of the BEI is a grave electoral irregularity. There was absolutely no legal basis for their appointments and were devoid of any justification other than the bare assertion that political parties and municipal candidates agreed on the said agreement. It is highly irregular to replace duly constituted members of the BEI who were public school teachers. (Cawasa vs. COMELEC, 383 SCRA 787)

The BEIs have the following powers and functions:1.Conduct the voting in the polling place and administer the counting of votes2.Act as deputies of the COMELEC in the conduct of the elections

3.Maintain order within the polling place and its premises; keep access thereto open and unobstructed; and enforce obedience to its lawful orders.

Proceedings of the BEI. The meeting of the BEI shall be held in the polling place designated by the COMELEC. The BEI shall act through its Chairman and shall decide by majority vote, without delay, all questions which may arise in the performance of its duties.

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Failure of Elections44.Who has the authority to declare failure of elections and the calling of special election? What are the three instances where a failure of election may be declared?

ANSWER: Section 4 of RA 7166 provides that the COMELEC sitting en banc by a majority vote of its members may decide the declaration of failure of election and the calling of special election. A prayer to declare failure of elections and a prayer to annul the election results are actually of the same nature as both are based on allegations of fraud, terrorism, violence or analogous causes. (Banaga Jr. vs. COMELEC, 336 SCRA 701)

Sec. 6 of 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 the election in the 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 on account of force majeure, violence, fraud and other analogous causes; 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 the failure to elect on account of force majeure, violence terrorism or other analogous causes. (Mitmug vs. COMELEC, 230 SCRA 54; Soliva vs. COMELEC, GR. No. 141723, April 20, 2001; Banaga vs. COMELEC, 336 SCRA 701 and Benito vs. COMELEC, 349 SCRA 705)45.What are the two conditions that must concur before the COMELEC can act on a verified petition seeking to declare a failure of election? What is the consequence of a declaration of failure of election?

ANSWER: Before the COMELEC can act on a verified petition seeking to declare a failure of election, two conditions must concur: (1) no voting took place in the precinct or precincts due to force majeure, violence or terrorism, and (2) the votes not cast are sufficient to affect the results of the election. The cause of the failure may arise before or after the casting of votes or on the day of election. (Benito vs. COMELEC, 349 SCRA 705) In the event that there is a declaration of failure of election, the COMELEC, sitting en banc, may call a special election. (Section 4, RA 7166)

46.A and B were candidates for mayor. A was proclaimed winner but B sought to have a declaration of failure of election since in 49 out of 67 precincts less than a quarter of the registered voters voted. Will the action prosper?

ANSWER: NO. In order that a failure of election may declared, no voting must have taken place in the precincts or even if there was voting, the election resulted in the failure to elect. In this case since actual voting took place and the results will not amount to failure to elect, the petition should be denied. (Mitmug vs. COMELEC, 230 SCRA 54)The petitioner equates failure of election to the low percentage of votes cast vis--vis the number of registered voters in the subject election precincts. However, there can be failure of election in a political unit only if the will of the majority has been defiled and cannot be ascertained. But if it can be determined, it must be accorded respect . After all, there is no provision in the laws which requires that a majority of registered voters must cast their votes all the law requires is that a winning candidate must be elected by a plurality of valid votes, regardless of the actual number of ballots cast. Thus, even if less than 25% of the electorate in the questioned precincts cast their votes, the same must still be respected. (Benito vs. COMELEC, 349 SCRA 705)

Pre-proclamation Controversy47.(1)What are pre-proclamation controversies?(2)What issues may be raised in a pre-proclamation case? What issues are explicitly prohibited to be raised in a pre-proclamation case under the Automated Election System?ANSWERS:(1) Pre-proclamation controversies refer to any question about the composition and proceeding of the board of canvassers. After the proclamation, a controversy becomes an election contest. (Section 241, BP 881; COMELEC Res. No. 8804, Part II, Rule 4, Section 6, March 22, 2010) (2) The following shall be proper issues that may be raised in a pre-proclamation controversy:a. illegal composition or proceedings in the BOC;b. the canvassed ERs contain certain discrepancies in the same returns or in other authentic copiesc. when the ERs are delayed, lost of destroyed;d. the ERs were prepared under duress, threats, coercion, or intimidation, obviously manufactured or not authentic, and

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e. when substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate. (COMELEC Res.8809, Section 24, March 30, 2010)

There shall be no proclamation cases on issues/controversies relating to the generation/printing, transmission, receipt and custody, and appreciation of the ERs or the COCs. (COMELEC Res.8809, Section 24, March 30, 2010)

48.When is there an illegal composition and illegal proceeding of the BOC? What are considered evidence of an illegal proceeding of the BOC?

ANSWERS: There is an illegal composition of the BOC when, among other similar circumstances, any of the members do not possess the legal qualifications and appointments. There is an illegal proceeding of the BOC when the canvassing is a sham or mere ceremony, the results of which are pre-determined and manipulated. The following circumstances indicate an illegal proceeding of the BOC: 1) hurried canvassing 2) terrorism 3) lack of sufficient notice to the members of the BOC, and 4) improper venue. (COMELEC Res.8804, Section 2, March 22, 2010)

49.How are pre-proclamation cases initiated?

ANSWER: Pre-proclamation cases may be initiated in the BOC or directly with the COMELEC with a verified petition clearly stating the specific grounds/s for the illegality of the composition and/or proceedings of the BOC. (COMELEC Res.8804, Part II, Rule 4 Section 3, March 22, 2010)

50.When must a petition for a pre-proclamation case be filed?

ANSWER: A petition for pre-proclamation case must be filed immediately: 1) for illegal composition i) when the unqualified BOC member is appointed prior to canvassing, upon exercise of his powers and duties as a BOC member, ii) when the unqualified BOC member is appointed after the canvassing, at the time of his appointment. 2) for illegal proceeding: when the proceedings become illegal. (COMELEC Res.8804, Part II, Rule 4 Section 4, March 22, 2010)

51.Who hears and decides pre-proclamation cases?

ANSWER: Pre-proclamation cases are heard and decided by the COMELEC. However, candidates in the Presidential, Vice Presidential, Senatorial and Congressional Elections are prohibited from filing pre-proclamation cases. (RA 7166, Section 15) Exceptions: PPC may be allowed in the following circumstances: 1) correction of manifest errors 2) questions affecting the composition or proceedings of the BOC (RA 9369, Section 38) 3) determination of the authenticity and due execution of the COCs

52.How is a pre-proclamation case considered for judgment?

ANSWER: Upon receipt of the evidence, the BOC shall take up the controversy, consider the written objections and oppositions, and immediately rule on the petition be a majority vote. There must be notice and hearing. Then after the hearing, it is also necessary that the tribunal show substantial evidence to support its ruling. (Sandoval vs. COMELEC,GR No. 133842, January 26, 2000)

53.What are the remedies that may be afforded in a pre-proclamation case? How may a recount of canvass votes be done?

ANSWER: 1) recount of canvass votes 2) annulment of proclamation, when the BOC failed to issue a timely ruling 3) termination of canvassing and proclamation of the elected candidates on the basis of available ERs if the missing ERs will not affect the results of the election, in case of delayed ERs.

A recount of canvass votes may be done in case of a clear showing, after a hearing, that the ER canvassed 1) appear to have been tampered with, falsified or prepared under duress 2) contain discrepancies in the votes credited to any candidate, the difference of which affects the result of the election.

54.When may a proclamation be annulled on the basis of a pre-proclamation controversy? May a proclamation of a winning candidate be made while a Motion for Reconsideration is pending?

ANSWERS: A proclamation may be annulled when the BOC failed to issue a timely ruling on the controversy, depriving the complainant an opportunity to appeal. (Sema vs. COMELEC, GR No. 134163, December 13, 2000) YES. The BOC need not wait for the resolution of a Motion for Reconsideration of a pre-proclamation controversy pending before the COMELEC. (Chu vs. COMELEC, GR No. 135423, November 29, 1999) ELECTION LAWS 15

55.What is the effect of the pendency of a pre-proclamation case before the COMELEC at the beginning of the term of office of the elective official?ANSWER: All pre-proclamation cases pending before the COMELEC shall be terminated at the beginning of the term of office (noon 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. (Barroso vs. Ampig, 328 SCRA 530)

Proclamation56.Can a winning candidate who died before his proclamation still entitled to be proclaimed? What are the effects of the death of a winning candidate?ANSWERS: YES. In Benito vs. COMELEC, 325 SCRA 436, it was held that a mayoralty candidate who obtained the highest number of vote and who was ambushed and killed before his proclamation is still entitled to be proclaimed as winner but with the information, in parenthesis, that he died, for the purpose of applying the rule on legal succession.

The death of a winning candidate: 1) cannot serve as basis for the Municipal Board of Canvassers to exclude from tallying, counting and canvassing all votes for and in the name of the deceased candidate; 2) does not render his victory and proclamation moot and academic but it is rather the duty of the Municipal Board of Canvassers to proclaim as winner the candidate who obtained the highest number of votes; and 3) does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office.

57.What is the so-called Rejection of the Second Placer Doctrine? What are the two specific requirements for the application of the doctrine?ANSWER: The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not 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 his rejection by the electorate is to disenfranchise the electorate without any fault on their part and to undermine 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) For to allow the defeated and repudiated candidate to take over the mayoralty despite his rejection by the electorate is to disenfranchise the electorate without any fault on their part and to undermine the importance and meaning of democracy and the peoples right to elect officials of their choice. (Benito vs. COMELEC, 325 SCRA 436)

The doctrine is equally applicable to multi-slot position such as Sanggunian member. Thus, if the 10th spot in the city council has been declared vacated, the 11th placer cannot be elevated to said higher position for the simple reason that the electorate did not elect him as one of the ten city councilors. (Idulza vs. COMELEC, 427 SCRA 7012)

The doctrine will apply if two conditions concur: (1) the decision on a candidates disqualification case remained pending on election day resulting in the presence of two mayoralty candidates; and (2) the decision on such disqualification case became final only after elections. (Cayat vs. COMELEC, GR 163776, April 24, 2007)

The doctrine was applied in Labo vs. COMELEC and a host of other cases because the judgment declaring the candidates disqualification had not become final before the elections but became final only three days after the 1992 elections. On the other hand, the doctrine does not apply to Cayat vs. COMELEC because the disqualification of Cayat and the subsequent cancellation of his certificate of candidacy (for his failure to pay the prescribed filing fee for his motion for reconsideration) became final 23 days before the 2004 elections. Thus, Palileng was the only candidate for Mayor of Buguias, Benguet. 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 his case because he is not a second placer but the only placer. Consequently, his proclamation as mayor is beyond question. (Cayat vs. COMELEC, supra)

However, in Maquiling v. COMELEC, GR No. 195649, April 16, 2013, the Supreme Court further elucidated the Rejection of the Second Doctrine. Thus,

When there are participants who turn out to be ineligible, their victory is voided and the laurel is awarded to the next in rank who does not possess any of the disqualifications nor lacks any of the qualifications set in the rules to be eligible as candidates.

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The very existence of a disqualifying circumstance makes the candidate ineligible. Knowledge by the electorate of a candidates disqualification is not necessary before a qualified candidate who placed second to a disqualified one can be proclaimed as the winner. The second-placer in the vote count is actually the first-placer among the qualified candidates. That the disqualified candidate has already been proclaimed and assumed office is of no moment. The subsequent disqualification based on substantive ground that existed prior to the filing of the certificate of candidacy voids not only the certificate of candidacy but also the proclamation.

Arnado was both a Filipino and American citizen when he filed hid certificate of candidacy.xxx The affirmation of Arnados disqualification, although made long after the elections, reaches back to the filing of the certificate of candidacy. Arnado is declared to be not a candidate at all in the 2010 elections. Arnado being a non-candidate, the votes cast in his favour should not have been counted. This leaves Maquilin as the qualified candidate who obtained the highest number of votes. Therefore, the rule on succession under the Local Government Code will not apply.

Effect of Proclamation58.What is the effect of the proclamation of a winning candidate whose proclamation is the subject of a pending election protest?ANSWER: Once proclaimed and duly sworn in office, a public officer is entitled to assume office and to exercise the functions thereof. The pendency of an election protest is not sufficient basis to enjoin him from assuming office or from discharging his functions. Unless his election is annulled by a final and executory decision, or a valid execution of an order unseating him pending appeal is issued, has the lawful right to assume and perform the duties of the office to which he has been elected. (Mendoza vs. Laxina, 408 SCRA 156)

59.What is the effect of the proclamation of a candidate who has been charged with an election offense?ANSWER: The COMELEC is mandated to dismiss a complaint for disqualification of a candidate who has been charged with an election offense under Section 261 of the OEC but who has already been proclaimed as winner by the Board of Canvasser. If the COMELEC finds that there is probable cause, it shall order its Law Department to file appropriate Information with the RTC which has territorial jurisdiction over the offense, but shall nonetheless, order the dismissal of the complaint for disqualification, without prejudice to the outcome of the criminal case. If the trial court finds the accused guilty beyond reasonable doubt of the offense charged, it shall order his disqualification pursuant to Section 264 of the OEC as amended by Section 46 of RA 8189. (Albana vs. COMELEC, 435 SCRA 98)

Election Protest & Quo Warranto; Jurisdiction60.Who exercise exclusive original and appellate jurisdiction over election protests and quo warranto?ANSWER: The following exercise exclusive original jurisdiction over election protests: (1) Presidential Electoral Tribunal President and Vice President; (2) Senate Electoral Tribunal Senators; (3) House of representatives Electoral Tribunal Congressmen; (4) COMELEC Provincial, City and Regional; (5) Regional Trial Court Municipal, and (5) Municipal Trial Court Municipal and sangguniang Kabataan.

The final decisions of both the RTC and MTC are appealable to the COMELEC (Division). The final ruling of a COMELEC Division shall be elevated first to the COMELEC En Banc before the same shall be brought to the Supreme Court on certiorari. Final decisions of the SET and HRET may be brought to the Supreme Court on certiorari.

61.Distinguish election protest from quo warranto.

ANSWER:As to who can fileEP :any losing candidate who has filed a certificate of candidacy and has been voted upon for the same officeQW: any registered voter in the constituency

As to PurposeEP : annul The election of an elected candidate on the ground of frauds and irregularities in the conduct of election and the counting and canvassing of votesQW: disqualify an elected official on the ground of ineligibility due to age, citizenship or the COMELEC of acts enumerated under Sec. 68 of BP 881

As to groundsEP : fraud, terrorism, irregularities or illegal acts committed before, during or after the casting and counting of votesQW: ineligibility or disloyalty to the Republic of the Philippines

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As to reglementary periodEP: within 30 days (president and vice president), 15 days (senator) and 10 days for all others from proclamation of election resultsQW: within 10 days from proclamation of election results

Effect in the protesteeEP : Protestant may assume office after protestee is unseatedQW: Protestee may be ousted, the protestant will not be seated

62.When is an election protest said to be sufficient in form and substance?ANSWER: An election protest is said to be sufficient in form and substance if it contains verification and certification of non-forum shopping as required by SC Adm. Circular No. 04-94. Also an election protest should contain the following jurisdictional allegations: (1) the protestant is a candidate who duly filed a certificate of candidacy and was voted for in the election; (2) the protestee has been proclaimed elected; (3) the date of proclamation (Miro vs. COMELEC, 121 SCRA 466); and (4) the precincts where the alleged fraud or irregularity took place.

63.Is the payment of docket fee jurisdictional? What is the effect, if any, of the failure of the protestant to pay the prescribed docket fee? ANSWERS: A court acquires jurisdiction over any case only upon the payment of the prescribed docket fee. (Soller vs. COMELEC, 339 SCRA 685) Failure to pay filing fees will warrant outright dismissal of the action and the election tribunal has no jurisdiction over the case. (Banaga vs. COMELEC, 336 SCRA 701) But in Jaramilla vs. COMELEC, 414 SCRA 337, it was held that the COMELEC is not constrained to dismiss a case before it by reason of non-payment of filing fees. The COMELEC has the discretion whether to entertain the petition or not in case of non-payment of legal fees. And even if it were not afforded such discretion, it is authorized to suspend its rules or any portion thereof in the interest of justice.

The date of the payment of the filing fee is deemed the actual date of the filing of the lection protest and must be viewed vis--vis Section 3, Rule 25 of the COMELEC Rules of Procedure which provides that the petition shall be filed within ten (10) days following the date of the proclamation of the results of the election. Hence, the subsequent payment of the filing fee on June 6, 1997, did not cure the jurisdictional defect because the said date which is deemed the actual date of filing the election protest is twenty five (25) days after the proclamation of the results of the lection on May 12, 1997 and way beyond the ten-day reglementary period to file the same. (Melendres vs. COMELEC, 319 SCRA 262)

The rule prescribing the ten-day period is mandatory and jurisdictional and the filing of an election protest beyond the period deprives the court of jurisdiction over the protest. Violation of this rule should not be taken lightly nor should it be brushed aside as a mere procedural lapse that can be overlooked. The rule is not a mere technicality but an essential requirement, the non-compliance of which would oust the court jurisdiction over the case. Relatedly, if the docket fees are not paid on time, even if the election protest is timely filed, the court is deprived of jurisdiction over the case. (Id.)

The Supreme Courts decision in Pahilan and Gatchalian bar any claim of good faith, excusable negligence or mistake in any failure to pay the full amount of filing fees in election cases. Clearly then, the Court would no longer tolerate any mistake in the payment of the full amount of filing fees for election cases and any error in the payment of filing fees in election cases is no longer excusable.Where 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)

64.Is there simultaneous prosecution of a pre-proclamation controversy and an election protest allowed?

ANSWER: YES. There is no law or rule prohibiting the simultaneous prosecution or adjudication of pre-proclamation controversies and election protests. Simultaneous prosecution scenarios may be allowed because pre-proclamation controversies and election protest differ in terms of the issues involved and the evidence admissible in each case and the objective each seeks to achieve. Moreover, under certain circumstances, the Supreme Court even encourages the reinforcement of a pre-proclamation suit with an election protest. When it becomes apparent that a pre-proclamation suit is inadequate, the election irregularities may be fully ventilated and properly adjudicated by the competent tribunal. (Tan and Burahan vs .COMELEC, GR No. 166143,November 20, 2006)

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65.Who exercises jurisdiction over election contest relative to the election, returns and disqualifications of members of the House of Representatives?ANSWER: The House of Representatives Electoral Tribunal (HRET) has sole and exclusive jurisdiction over all contests relative to the election, returns and qualifications of the members of the House of Representatives. Thus, once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, COMELECs jurisdiction over election contests relating to his election, returns and qualification ends, and the HRETs own jurisdiction begins. (Aggabao vs. COMELEC, 449 SCRA 400)

66.When does the Supreme Court jurisdiction as the Presidential Electoral Tribunal be invoked?ANSWER: The jurisdiction of the Supreme Court sitting as a Presidential Electoral Tribunal would not include cases directly brought before it questioning the qualifications of a candidate for the presidency or vice-presidency before the elections are held. Evidently, the primary jurisdiction of the Court can directly be invoked only after, not before, the elections are held. (Tecson vs. COMELEC, GR No. 161434, March 3, 2004)

67.Who can legally contest the election of the President and Vice President? In case of death, can he be substituted by the wife?ANSWERS: Pursuant to Rule 14 of the Presidential Electoral Tribunal, only the registered candidate for President and Vice President who received the second or third highest number of votes may contest the election of the President or Vice President, as the case may be. The Rule envisions a scenario where, if the declared winner had not been truly voted upon by the electorate, the candidate who received the 2nd or 3rd highest number of votes would be the legitimate beneficiary in a successful election.NO. While the right to a public office is personal and exclusive to the public officer, an election contest is not purely personal and exclusive to the protestant or to the protestee such that the death of either would oust the court of all authority to continue the protest proceedings. The Court has allowed substitution and intervention but only by the real party in interest. Where the widow is not a real party in interest, Court has denied substitution by the wife or heirs. (Poe vs. GMA, 454 SCRA 142)

68.Who can be a protestant in an election contest involving municipal officials? Regional, provincial and city officials?ANSWER: Under the SC 2010 Rules of Procedure for Election Contest Involving Municipal Officials, any candidate for the same office with the second or third highest number of votes can be a protestant. For multi-slot positions, such as Sanggunian members, only four candidates following the last-ranked winner can file an election protest. (Sec. 4)

The losing candidate who is filing an election protest against an elective regional, provincial or city official must have received the second or third highest number of votes, or in a multi-slot position, was among the next four candidates following the last ranked winner proclaimed, as reflected in the official results of the election contained in the SOV. (Comelec Res. No. 8804, Part III, Rule 6, Section 2, March 22, 2010)

Execution Pending Appeal69.Is execution pending appeal of judgment available in election cases?ANSWER: YES. Even if BP 881 and other elections laws do not specifically provide for execution pending appeal of judgment in election cases, the Supreme Court has explicitly recognized and given approval thereto. The rationale why execution pending appeal is allowed in election cases is to give much 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 canvassers. The following constitute good reasons and a combination of two or more of them will suffice to grant execution pending appeal: 1) public interest involved or will of the electorate; 2) the shortness of the remaining portion of the term of the contested office; 3) length of time that the election contest has been pending (Fermo vs. COMELEC, 328 SCRA 52); and 4) filing of bond as a condition for the issuance of a corresponding writ of execution to answer for the payment of damages which the aggrieved party may suffer by reason of the execution pending appeal. (Ramas vs. COMELEC, 286 SCRA 189)

Election Offenses70.What is electoral sabotage? What penalty is imposed upon its violators?Under RA 9369, The Poll Automation Law, amending RA 8436, the following shall be guilty of a non-bailable special election offense to be known as electoral sabotage which is punishable by life imprisonment:

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(1) Any person who removes the certificate of canvass posted on the wall, whether within or after the prescribed 48 hours of posting, or defaces the same in any manner;

(2) Any person who simulates an actual certificate of canvass or statement of votes, or a print or digital copy thereof;

(3) The Chairman or any member of the Board of Canvassers who signs or aut