2012 notes on election law

7/28/2019 2012 Notes on Election Law

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2012 REVIEWER INELECTION LAW

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


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GENERAL

PRINCIPLES


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What is the right of Suffrage?ANSWER: It is the right to vote in the

election of officers chosen by the people

and in determination of questions

submitted to the people. It includes:

Election Plebiscite Initiative and Referendum


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Who may vote? Filipino citizenshipAt least 18 years of age Resident of the Philippines for at least

one year Resident of the place where he

proposes to vote for at least 6 months;

and Not otherwise disqualified by law


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Is registration a qualification to vote? No. It is but a condition precedent to the

exercise of the right. The act of registration is an indispensable

precondition to the right of suffrage. For

registration is part and parcel of the right tovote and an indispensable element in the

election process.

Registration is a regulation, not aqua l i f i ca t ion . (Akbayan Youth vs .COMELEC, G.R. No. 147066, 26 March

2001)


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Is failure to sign an application for registration a validground to cancel a voters registration?

YES. Failure to affix his signature to the application forregistration will necessarily invalidate his application forregistration.

Section 10 of RA 8189, explicitly provides: x x x To registeras a voter, he shall personally accomplish an application

form for registration x x x in three (3) copies x x x Theapplication for registration shall contain three (3) specimensignatures of the applicant x x x .

Gunsis application for registration did not comply with theminimum requirements of RA No. 8189. This leads to onlyone conclusion: that Gunsi, not having demonstrated thathe duly accomplished an application for registration, is not

a registered voter. Gunsi v. COMELEC, G.R. No. 168792,

23 February 2009


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Who are disqualified from voting? Persons convicted by final judgment to suffer

imprisonment for not less than 1 year, pardonedor granted amnesty; but right is reacquired after

expiration of 5 years after service of sentence;

Person adjudged by final judgment as havingcommitted any crime against national security;

but right is reacquired upon expiration of 5 years

after service of sentence; and

Insane or incompetent persons as declared bycompetent authority (Sec. 118, OEC)


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May the conduct of exit pollstransgress the sanctity and the

secrecy of the ballot? NO. In exit polls, the contents of the official ballot are

not actually exposed. Furthermore, the revelation of

whom an elector has voted for is not compulsory, but

voluntary.

Voters may also choose not to reveal their identities.Indeed, narrowly tailored countermeasures may be

prescribed by the Comelec, so as to minimize or suppress

incidental problems in the conduct of exit polls, withouttransgressing the fundamental rights of our people.

(ABS-CBN Broadcasting Corporation v. COMELEC, G.R.

No. 133486, Jan. 28, 2000)


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Who are not qualified to vote? Those convicted by final judgment to suffer

imprisonment for not less than one (1) year;unless pardoned or granted amnesty.

Those convicted by final judgment of crimesinvolving disloyalty to government or against

national security.

Note: Right to vote is only reacquired upon the expirationof five (5) years after service of sentence.

Those who are insane or incompetent persons asdeclared by competent authority.


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Q: What is absentee voting? A: It is a process by which qualified

citizens of the Philippines abroad

exercise their right to vote pursuant to

the consti tut ional mandate that

Congress shall provide a system for

absentee voting by qualified Filipinos

abroad (Sec. 2 , Ar t . V, 1987Constitution).


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Who are qualified to vote under theAbsentee Voting Act?

A N S W E R : A l l c i t i zens o f thePhilippines residing abroad, whoare not otherwise disqualified by law,

at least eighteen (18) years of age onthe day of the elections, may vote forpresident, vice-president, senators

and party-list representatives. (Sec. 4,RA 9189)


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Is an immigrant or permanent residentabroad qualified to vote under the

Absentee Voting Act? GR: An immigrant or permanent resident may

vote if he/she executes, upon registration, anaffidavit prepared for the purpose by the

Commission declaring that he/she shall resumeactual physical permanent residence in the

Philippines not later than three (3) years from

approval of his/her registration under this Act.

Such affidavit shall also state that he/she has notapplied for citizenship in another country.

(Section 5-d, RA 9189)


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Q: Is Section 5-D of RA 9189 Constitutional? A: Yes. Congress enacted the law prescribing a system of

overseas absentee voting in compliance with theconstitutional mandate.

Such mandate expressly requires that Congress provide asystem of absentee voting that necessarily presupposes

that the "qualified citizen of the Philippines abroad" is not

physically present in the country. He is presumed not tohave lost his domicile by his physical absence from this

country.

His having become an immigrant or permanent resident ofhis host country does not necessarily imply anabandonment of his intention to return to his domicile of

origin, the Philippines. (Macalintal v. Romulo, G.R. No.

157013, July 10, 2003)


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Who are NOT qualified to vote under theAbsentee Voting Act?

Those who have lost their Filipinocitizenship laws;

Those who have expressly renounced theirPhilippine citizenship and who havepledged allegiance to a foreign country;

Those convicted of an offense punishableby imprisonment of not less than one (1)year, including those found guilty of

Disloyalty as defined under Art. 137 of the

Revised Penal Code.


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Is an immigrant or permanent residentabroad qualified to vote under the

Absentee Voting Act? GR: An immigrant or permanent resident may

vote if he/she executes, upon registration, anaffidavit prepared for the purpose by the

Commission declaring that he/she shall resumeactual physical permanent residence in the

Philippines not later than three (3) years from

approval of his/her registration under this Act.

Such affidavit shall also state that he/she has notapplied for citizenship in another country.


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May an immigrant or permanent resident(green card holder) ABROAD be qualified

to run for an elective position in thePhilippines?

ANSWER: NO. Acquisition of a lawfulpermanent resident status abroadamounts to an abandonment andrenunciation of ones status as aresident of the Philippines; it constituted

a change from ones domicile of originto a new domicile of choice. (Ugdoracion v.COMELEC, 18 April 2008 Nachura ponente)


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PARTY-LIST


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What groups are disqualif ied for

registration under the party-list system?

1. Religious denominations or sects.2. Those who seek to achieve their

goals through violence or unlawful

means.

3. Those who refuse to uphold andadhere to the Constitution; and

4. Those suppor ted by fo re igngovernments


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What are the grounds for the cancellation

of registration?

1. Accepting financial contributionsfrom foreign governments or

agencies; and2. Failure to obtain at least 10% of

t h e v o t e s c a s t s i n t h e

constituency where the partyfielded candidates.


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Can major political parties participate in

the party-list elections?

No. It is not open to all but only to the marginalizedand the under represented.

Allowing all individuals and groups, including those

which now dominate district elections, to have the

same opportunity to participate in the party-list

elections would desecrate this lofty objective and

mongrelize the social justice mechanism into an

atrocious veneer for traditional politics. (Ang BagongBayani-OFW Labor Party v. COMELEC, G.R. No.

147589, Jun. 26, 2001)


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CAN THE LGBT COMMUNITY FORM A PARTY LIST?

Yes. Not only those sectors specifically enumerated in thelaw or related to said sectors (labor, peasant, fisherfolk,

urban poor, indigenous cultural communities, elderly,handicapped, women, youth, veterans, overseas workers,

and professionals) may be registered under the party-listsystem.

The enumeration in the law of marginalized and under-represented sectors is not exclusive.

Morality is not a criterion. The Courts role is not to imposeits own view of acceptable behavior. Rather, it is to apply

the Constitution and laws as best as it can, uninfluenced by

public opinion, and confident in the knowledge that ourdemocracy is resilient enough to withstand vigorous debate.

Ang Ladlad LGBT Party v. COMELEC, G.R. No. 190582,Apr. 8, 2010


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What is a political party?

It is an organized group of citizens advocating

ideology or platform, principles andpolicies for the general conduct of

government and which, as the most

immediate means of securing theiradoption, regularly nominates and

supports certain of its leaders and

members as candidate in public office(Bayan Muna v. COMELEC, G.R. No.

147612, Jun. 28, 2001)


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RULES ON DISTRICT RE-APPORTIONMENT

Elected from legislative districts which are apportioned inaccordance with the number of inhabitants of each areaand on the basis of a uniform and progressive ratio;

UniformEvery representative of Congress shallrepresent a territorial unit with more or less 250,000

population. All the other representatives shall have thesame or nearly the same political constituency so much

so that their votes will constitute the popular majority.

Each city with a population of at least 250,000 or eachprovince shall at least have one representative.

Legislative districts shall be re-apportioned by Congresswithin 3 years after the return of each census.


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Q: What is gerrymandering?Is it allowed?A: Formation of one legislative

district out of separate

territories for the purpose of

favoring a candidate or a party.

Gerrymandering is not allowed


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Guidelines for screening party-list participants

The political party, sector, organization or coalition mustrepresent the marginalized and the underrepresented

groups identified in Sec. 5 of RA 7941. Majority of its

membership should belong to the marginalized and

underrepresented;

While even major political parties are allowed by RA7941 and the Constitution, they must comply with the

declared statutory policy ofFilipino citizens belonging to

the marginalized and underrepresented sectors to beelected to the House of Representatives. Thus, they

must show that they represent the interest of the

marginalized and underrepresented;


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Guidelines for screening party-list participants

Religious sector may not be represented in the party-listsystem; except that priests, imams or pastors may beelected should they represent not their religious sects

but the indigenous community sector;

A party or an organization must not fall under thedisqualifications provided for under Sec. 6 of RA 7941

The party or organization must not be an adjunct of, or aproject organized or an entity funded or assisted by the

government;

The party, including its nominees must comply with thequalification requirements of Sec. 9, RA 7941


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Is it necessary for a party-list nominee toactually belong to the marginalized sector

that he seeks to represent? Yes. The law requires that the nominees must belong to

the sector that they represent. A representative of the

senior citizen must be a senior citizen; the youth sector

must be represented by a nominee who is not more than30 years old on election day.

Since the party list represent the marginalized andunderrepresented sectors, so also must the nominees

belong to the marginalized and underrepresentedsectors.

(Ang Bagong Bayani-OFW Labor Party v. COMELEC,G.R. No. 147589, Jun. 26, 2001)


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Q: In the party-list elections, who are elected intooffice?

A: It is the party-list representatives who are electedinto office, not their parties or organizations. Thus,

the age qualification pertains to them as a person(Amores v. Joel Villanueva CIBAC, G.R. No. 189600,

29 June 2010)

These representatives are elected, however,through that peculiar party-list system that the

Constitution authorized and that Congress by law

established where the voters cast their votes for theorganizations or parties to which such party-list

representatives belong. (Abayon v. HRET, G.R. No.

189466, Feb. 11, 2010)


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Q: Should the names of nominees bepublished?

YES. There is absolutely nothing in R.A. 7941that prohibits COMELEC from disclosing or evenpublishing through mediums other than the

Certified List the names of the party-list

nominees. As may be noted, the candidates qualifications

are a matter of public concern. The disclosure of

their names is, therefore, mandated by law

(Bantay RA 7941 v. COMELEC, G.R. No.

177271; G.R. No. 177314, May 4, 2007)


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Q: What is the formula mandated by theConstitution in determining the number of

party-list representatives? A: The House of Representatives shall be

composed of not more than two hundred and

fifty members, unless otherwise fixed by law.(Section 5 (1), Article VI of the 1987

Constitution).

The number of seats available to party-listrepresentatives is based on the ratio of party-listrepresentatives to the total number of

representatives.


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Number of seats available to legislative districts -------------------------------- x .20 = Number of seats available

.80 to party-list representatives

This formula allows for the corresponding increase in thenumber of seats available for party-list representatives

whenever a legislative district is created by law.

After prescribing the ratio of the number of party-listrepresentatives to the total number of representatives,

the Constitution left the manner of allocating the seatsavailable to party-list representatives to the wisdom of

the legislature. (Barangay Association for National

Advancement and Transparency(BANAT v. COMELEC,

G.R. No. 179271, Apr. 21, 2009)


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FOUR INVIOLABLE PARAMETERS TO DETERMINEWINNERS IN THE PARTY-LIST ELECTIONS:

(1) 20% al location. The Party-L ist

representatives shall constitute 20% of totalnumber of the members of the House including

those under the Party-List;

(2) 2% threshold. Only those parties garnering

a minimum of 2% of the total valid votes cast forthe Party-List system are qualified to have a seat

in the House of Representatives;


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3. Three-seat limit. Each qualified party,regardless of the number of votes itactually obtained, provided that it hassecured more than 2% of the total validvotes cast for party list system, is entitledonly to a maximum of 3 seats; and

4. Proportional representation. The

additional seats which a qualified party is

entitled to shall be computed in

proportion to their total number of votes (Veterans Federation Party v. Comelec, G.R. No.136781, October

6, 2000).


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How do we determine the number of seats in theHouse of Representative allotted for party list

representatives?

BANAT V. COMELEC (2009) Party-list representatives constitute 20% of

the total number of members of the House of

Representative. (Total number meansinclusive of those under the party-list). From

there, the following formula is derived:

According to the BANAT Case, there are 55party-list seats available. THIS MUST BEFILLED-UP.


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BANAT V. COMELEC (2009) Parties receiving at least 2% of the total

votes cast for the party-list system shall beentitled to one seat each (one seat for every

2%);

No party shall be entitled to more than 3seats;

The remaining parties (with less than 2%)will be ranked according to their total votesgarnered and will be entitled to a seat each

until the vacant party-list seats are all filled-

up.


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INCLUSION &EXCLUSION


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Q: Which court has jurisdictionover inclusion and exclusion

proceedings?

A: MTC - original and exclusive RTC - appellate jurisdiction SC - appellate jurisdiction over RTCon question of law


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PETITION FOR INCLUSION

Any person whose appl icat ion for

registration has been disapproved by theBoard or whose name has been strickenout from the list may file with the court a

petition to include his name in thepermanent list of voters in his precinct atany time EXCEPT 105 days prior to aregular election or 75 days prior to a

special election. The petition shall bedecided within 15 days after its filing. (Sec.34, RA 8189)


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PETITION FOR EXCLUSION

Any registered voter, representative of a

political party or the Election Officer, mayfile with the court a sworn petition for theexclusion of a voter f rom thepermanent list of voters giving the name,

address and the precinct of thechallenged voter at any time EXCEPT100 days prior to a regular election or

65 days prior to a special election.The petition shall be decided within 10days from its filing. (Sec. 35, RA 8189)


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Q: Who may file a petition in an inclusion or exclusionproceedings?

A: Inclusion

Any private person whose application was disapproved bythe Election Registration Board or whose name was

stricken out from the list of voters

COMELEC Exclusion

Any registered voter in the city or municipality Representative of political party Election officer COMELEC (BP 881 Omnibus Election Code)

Q D d i i i i l i l i


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Q: Do decisions in an inclusion or exclusionproceedings acquire the nature ofres judicata?

A: No. The proceedings for the exclusion or inclusion ofvoters in the list of voters are summary in character.

Except for the right to remain in the list of voters or for beingexcluded therefrom for the particular election in relation to

which the proceedings had been held, a decision in an

exclusion or inclusion proceeding, even if final andunappealable, does not acquire the nature of res judicata.

In this sense, it does not operate as a bar to any furtheraction that a party may take concerning the subject passed

upon in the proceeding. Thus, a decision in an exclusion

proceeding would neither be conclusive on the voterspolitical status, nor bar subsequent proceedings on his right

to be registered as a voter in any other election. (Domino

vs. COMELEC, G.R. No. 134015, July 19, 1999)


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Q: Can a voter be excluded for stating a fakeaddress?

A: NO. The right to vote is a most precious politicalright, as well as a bounden duty of every citizen,

enabling and requiring him to participate in theprocess of government to ensure that it can truly

be said to derive its power solely from the consentof its constituents.

A citizen cannot be disenfranchised for the flimsiestof reasons. Only on the most serious grounds, and

upon clear and convincing proof, may a citizen bedeemed to have forfeited this precious heritage of

freedom. (Asistio v. Aguirre, G.R. No. 191124, April 27,2010)


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Q: Can a voter be excluded for stating a fakeaddress?

A: That Asistio allegedly indicated in his Certificate ofCandidacy for Mayor, both for the 2007 and 2010 elections,a non-existent or false address, or that he could not be

physically found in the address he indicated when he

registered as a voter, should not operate to exclude him as

a voter of Caloocan City. These purported misrepresentations in Asistios COC

might serve as basis for an election offense under the

Omnibus Election Code (OEC), or an action to deny due

course to the COC. They do not serve as proof that Asistiohas abandoned his domicile in Caloocan City, or that he

has established residence outside of Caloocan City.

(Asistio v. Aguirre, G.R. No. 191124, April 27, 2010)


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Q: What is the effect of transfer ofresidence?

A:Any person, who transfers residencesolely by reason of his occupation,

profession or employment in private or

public service, education, etc., shall not

be deemed to have lost his original

residence. (Asistio v. Aguirre, G.R.

No. 191124, April 27, 2010)


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EFFECTS OFFILING A

CERTIFICATE

OF CANDIDACY


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Q. CAN YOU FILE 2 CERTIFICATES OF

CANDIDACY?

A: Filing of two (2) certificates of candidacy,

disqualifies the person to run for both elective

positions.

Q: Can you withdraw the CoC?

A: Yes. A person who has filed a CoC may, prior tothe election, withdraw the same by submitting to the

office concerned (COMELEC) a written declaration

under oath. (Sec. 73, Omnibus Election Code)

Q Wh t i th ff t f fili tifi t f did


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

A:

Appointive official Sec. 66 of the OEC provides thatany person holding an appointive office or position,

including active members of the Armed Forces of the

Philippines, and officers and employees in GOCCs, shall

be RESIGNED from his office upon the start of thecampaign period. (Quinto v. COMELEC, Feb. 22, 2010,

G.R. 189698)

Elective official No effect. The candidate shall continue

to hold office, whether he is running for the same or a

different position. (Sec. 14, Fair Elections Act expressly

repealed Sec. 67 of BP 881)

Q Wh t i th d t f th COMELEC i i i C C ?


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Q: What is the duty of the COMELEC in receiving CoCs?

GR: When a candidate files his COC, the COMELEC has a

ministerial duty to receive and acknowledge its receipt pursuantto Section 76, of the Election Code. The COMELEC may not,

by itself, without the proper proceedings, deny due course to or

cancel a COC filed in due form. (Luna vs. COMELEC, G.R. No.

165983, April 24, 2007)

XPN:

(i) Nuisance candidatesSec. 69 of the OEC;

(ii) Petition to deny due course or to cancel a COCSec. 78 ofthe OEC;

(iii) Filing of a disqualification case on any of the grounds

enumerated in Section 68, OEC.

Q Wh b id d did t ?


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Q: When can a person be considered a candidate?

A: A candidate refers to any person aspiring for or seeking an

elective public office, who has filed a certificate of candidacy by

himself or through an accredited political party, aggroupment orcoalition of parties.

Any person who files his certificate of candidacy withinthe filing period shall only be considered a candidate at

the start of the campaign period for which he filed hiscertificate of candidacy."

Any person may thus file a certificate of candidacy on any day

within the prescribed period for filing a certificate of candidacy

yet that person shall be considered a candidate, for purposesof determining ones possible violations of election laws, only

during the campaign period. (Penera v. COMELEC, G.R. No.

181613, Nov. 25, 2009)


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SAMPLE TEST QUESTION:

The Vice Mayor of a municipality filed hiscertificate of candidacy for the same office in the

last elections. The Municipal Mayor was also

running for re-election. Both were official

candidates of the same political party. After thelast day for the filing of certificates of candidacy,

the Mayor died. Under these facts -

1. Can the Vice Mayor succeed to the office ofthe deceased Mayor pursuant to the provisionsof the Local Government Code? Explain.


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2. Assuming that the Vice-Mayor succeeds to

the position of Mayor after the incumbent died,which position is now different from the one for

which he has filed his certificate of candidacy,

can he still continue to run as Vice-Mayor?

Explain.

3. Is there any legal impediment to the Vice

Mayor to substitute for the re-electionist Mayorwho died? Explain.


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Suggested Answer:

1. Yes, the vice mayor can succeed to

the office of mayor. Under Section 44 ofthe Local Government Code, he stands

next in line to the office of mayor in case

of a permanent vacancy in it.

His filing of a Certificate of Candidacy for

Mayor did not automatically result to hisbeing considered resigned (Sec. 67,

Omnibus Election Code).


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2. Assuming that the Vice-Mayor succeeds

to the position of Mayor after the incumbent

died, can he still continue to run as Vice-Mayor? Explain.

Yes, the vice mayor can continue to run

as vice mayor. At the time that he filed hiscertificate of candidacy, the vice mayor ran

for the same office he was holding.

The mere filing of a certificate of

candidacy of an incumbent elective official

does not result to his automatic resignation.


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3. Can the Vice Mayor substitute for there-electionist Mayor who died? Explain.

YES. Under Section 77 of the Omnibus

Election code, if a candidate dies after the

last day for filing certificates of candidacy, he

may be replaced by a person belonging to hispolitical party.

However, it is required that he should firstwithdraw his Certificate of Candidacy for

Vice-Mayor and file a new Certificate of

Candidacy for Mayor.


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SAMPLE QUESTION

On 01 December 2009, A City Legal Officer,and B, a City Vice-Mayor, filed certificates ofcandidacy for the position of City Mayor inthe May 11, 2010 elections.

a. Was A ipso facto considered resigned and, ifso, effective on what date?

b. Was B ipso facto considered resigned and, if

so, effective on what date?In both cases, state the reason or reasonsfor your answer.


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Suggested Answer:

a. No. A was not considered ipso factoresigned upon the filing of his certificate ofcandidacy even if he is an appointive official.

Because it is not yet the start of the

campaign period. (Quinto v. COMELEC, 12/09)

Section 66 of the Omnibus Election Code was

amended by the Automated Elections Law.


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b. B, on the other hand, is not also

considered ipso facto resigned.

Under the Fair Elections Act, an

incumbent elective official is NOTC O N S I D E R E D I P S O F A C T O

RESIGNED upon his filing of a

certificate of candidacy for anyelective office.


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SAMPLE QUESTION

a. Pedro Reyes is an incumbent Vice-

Mayor of Quezon City.

He intends to run in the regular

elections for the position of City Mayor

of Quezon City whose incumbentmayor would have fully served three

consecutive terms by 2004.

Would Pedro Reyes have to giveup his position as Vice-Mayor?


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SHOULD HE RESIGN AS VICE-MAYOR?

1. Once he files his certificate of candidacy;

2. When the campaign period starts; or5. Once and if he is proclaimed winner in the

election; or

6. Upon his assumption to the new elective

office;ANSWER: None of the above. Pedro

Reyes can run for Mayor withoutgiving up his position as Vice-Mayor.He will have to give up his position asVice-Mayor upon expiration of histerm as Vice-Mayor on June 30, 2004.

SUBSTITUTION OF CANDIDATES?


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SUBSTITUTION OF CANDIDATES?

Ifafter the last day for the filing of certificatesof candidacy, an official candidate of a political

party: (1) dies, (2) withdraws or is (3)

disqualified for any causea personbelonging to, and certified by, the same

political party may file a certificate of

candidacy not later than mid-day of election

day to replace the candidate who died,withdrew or was disqualified.

- Substitute must belong to the same party.

Q: What are the requisites for valid substitution?


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Q at a e t e equ s tes o a d subst tut o

GR:

The substitute must belong to the same party

The deceased, disqualified or withdrawn candidate must haveduly file a valid certificate of candidacy. (Ibid.)

XPN: This does not include those cases where the certificate

of candidacy of the person to be substituted had been denieddue course and canceled under Section 78 of the OmnibusElection Code. While the law enumerated the occasion where

a candidate may be validly substituted, there is no mention of

the case where a candidate is excluded not only bydisqualification but also by denial and cancellation of his

certificate of candidacy. (Ong v. Alegre & COMELEC, G.R. No.163295, January 23, 2006)

Q: On the last day of filing a CoC March 31


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Q: On the last day of filing a CoC, March 31,

Jose Monsale withdrew his CoC. April 1,

campaign period started. On April 2, he

wanted to run again so he filed a written

declaration withdrawing his withdrawal. Is

his act of withdrawing the withdrawal valid?

A: No. The withdrawal of the withdrawal of the

CoC made after the last day of filing is

considered as filing of a new CoC. Hence, itwas not allowed since it was filed out of time.

(Monsale v. Nico, G.R. No. L-2539, May 28,

1949)


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May a disqualified candidate be substituted?

Q: In the 1998 election, Mayor Mirandaalready served 8 consecutive terms, yet he

still filed a CoC. As a result, Abaya filed a

disqualification case. COMELEC then

disqualified Miranda and cancelled his CoC.

The son of Miranda, Joel, upon nomination of

their political party, filed a certificate of

substitute. Joel Miranda won.

Was the substitution valid?


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May a disqualified candidate be substituted?

A: There was no valid substitution. COMELECdid not only disqualify Miranda but also cancelled

his CoC. Therefore, he cannot be validly

substituted.

A disqualified candidate may only be substituted

if he had a valid CoC because if the disqualified

candidate did not have a valid and seasonably

filed CoC, he is and was not a candidate at all.(Miranda v. Abaya, G.R. No. 136351, July 28,

1999)

Q: Since there was no valid substitution should


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Q: Since there was no valid substitution, shouldthe candidate who obtained the second highest

vote be proclaimed? Who will then assume the

position of mayorship?

A: No. Under the doctrine on the rejection of second

placer, the second placer is just like thatsecondplacer. He was not the choice of the electorate. The

wreath of victory cannot be transferred to the

repudiated loser.

Following the rule on succession, it is the Vice-Mayorwho will assume the position of mayor. (Cayat v.

COMELEC, G.R. No. 163776, Apr. 24, 2010)

Q: Martin de Guzman died while campaigning


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Q: Martin de Guzman died while campaigning.His son substituted him. Voters on the day of the

election wrote Martin de Guzman instead of

casting the same in the name of his son, Joel deGuzman. Should the votes be counted in favor of

Joel?

A: Yes. As a general rule, the same will be

considered as stray votes but will not invalidate the

whole ballot.

Exception is when the substitute carries the samefamily name. (Sec. 12, R.A 9006)

Q: May a second placer be declared elected?


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Q: May a second placer be declared elected?

GR: No.

XPN:

If the one who obtained the highest number of votes

is disqualified and

The electorate is fully aware in fact and in law of the

candidates disqualification so as to bring such

awareness within the realm of notoriety but wouldnonetheless cast their votes in favor of the ineligiblecandidate. (Grego v. COMELEC, G. R. No. 125955,

June 19, 1997)


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PRE-ELECTIONDISPUTES


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What is a petition for disqualification?

It is the remedy against any candidate who does notpossess all the qualifications required by the Constitutionor law, or who commits any act declared by law to be

grounds for disqualification.

Note: A petition fordisqualification must be filed anyday after the last day for filing of certificates ofcandidacy BUT not later than the date of

proclamation.

The petition is heard summarily. However, theCOMELEC cannot disqualify a candidate without hearing

and affording him opportunity to adduce evidence to

support his side and taking into account such evidence


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What are the effects of disqualification?

Any candidate who has been declared by final judgmentto be disqualified shall not be voted for. The votes cast inhis favor shall not be counted.

If the candidate is not disqualified by final judgmentbefore the election and receives the highest number of

votes in the election, the court or COMELEC will continue

with the trial and hearing of the action, inquiry or protest.

Upon motion of the complainant or intervenor, the courtor COMELEC may order the suspension of the

proclamation of the candidate whenever the evidence

of guilt is strong.


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Petition to Declare a Nuisance Candidate

1. The COC has been filed to put the election process inmockery or disrepute;

2. The COC has been filed to cause confusion among

the voters;

3. That the filing of the COC clearly demonstrates thatthe candidate has no bona fide intention to run for office.

Note: The petition may be filed within five (5) days after

the last day of filing of COCs.


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Petition to Cancel Certificate of Candidacy

A petition to cancel a certificate of candidacymay be filed by any person exclusively on the

ground that any material representationcontained in certificate of candidacy as required

by law is false.

The petition should be filed not later than 25

days from the filing of the certificate of

candidacy.It should be decided not later than 15 days

before the election, after due notice and hearing.

Q: What are the requisites for the grant of a


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Q: What are the requisites for the grant of apetition to deny due course to or cancel a

certificate of candidacy?

A:Material misrepresentation in the qualifications forelective office, which includes age, residency,citizenship, and any other legal qualifications

necessary to run for an elective office;

Deliberate attempt to mislead, misinform or hide a

fact which would otherwise render a candidate

ineligible.

Note: These two requirements must concur to

warrant the cancellation of the certificate of

candidacy.


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Material Misrepresentation

Material misrepresentation in a COC refers to

the qualification for elective office, whichincludes false statement as to age, residency,

citizenship, being a registered voter and any

other legal qualifications necessary to run for an

elective office.

Note: A misrepresentation which does not affect

ones qualification to run or hold public office willnot suffice for the cancellation of a COC.


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Material Misrepresentation

Actor Daniel Fernando used his screen name in

his certificate of candidacy, instead of his realname Cezar Ramirez. A petition to cancel his

COC was filed on the ground of material

misrepresentation. Will the suit prosper?

Note: The COMELEC en banc dismissed the

petition ruling that a misrepresentation which

does not affect ones qualification to run or holdpublic office will not suffice for the cancellation of

a COC.

May the COMELEC matu proprio deny or cancel a


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y p p ycertificate candidacy?

NO. The Commission may not, by itself, without the

proper proceedings, deny due course to or cancel a certificateof candidacy filed in due form. When a candidate files hiscertificate of candidacy, the COMELEC has a ministerialduty to receive and acknowledge its receipt (Sec. 76 of theOEC).

While the Commission may look into patent defects inthe certificates, it may not go into matters not appearing ontheir face. The question of eligibility or ineligibility of acandidate is thus beyond its usual motu propio powers.

Nonetheless, Section 78 of the Omnibus Election Codeallows any person to file before the COMELEC a petition todeny due course to or cancel a certificate of candidacy on theground that any material representation therein is false.

Cipriano v. COMELEC, G.R. No. 158830 (August 10, 2004)

QUESTION:


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Q. Penera and Andanar ran for mayor of Sta.

Monica, Surigao Del Norte during the May 14, 2007

elections. Peneras political party held a motorcadepreceding the filing of her certificate of candidacy

announcing her candidacy for mayor.

Because of this, Andanar filed a petition to disqualify

Penera for engaging in premature campaigning in

violation of Sec.80 and 68 of the Omnibus Election

Code.

Does the act of campaigning for votes immediatelypreceding the filing of certificate of candidacy violate

the prohibition against premature campaigning?

ANSWER:


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A. The campaign period for local officials begin on 30

March 2007 and ends on 12 May 2007. Penera filed hercertificate of candidacy on 29 March 2007. Penera was thus a

candidate on 29 March 2009 only for purposes of printing the

ballots under Sec.11 of R.A. 8436.

Penera became a candidate only at the start of the campaign

period on 30 March 2007. Thus, all her actions prior to the start

of the campaign period are not punishable under Section 80 ofthe Omnibus Election Code. Such acts are within the realm of a

citizens protected freedom of expression.

In laymans language, this means that a candidate is liable for

an election offense only for acts done during the campaignperiod, not before. The law is clear as daylight any election

offense that may be committed by a candidate under anyelection law cannot be committed before the start of the

campaign period. (Penera v. COMELEC, G.R. No. 181613, Nov.25 2009

Q: What are pre-proclamation controversies?


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A: They refer to any question pertaining to or affecting the

proceedings of the board of canvassers, and thepreparation, transmission, receipt, custody and

appreciation of election returns which may be raised by

any candidate or by any registered political party or

coalition of political parties before the board or directlywith the COMELEC. (Sec. 241, B.P. 881 Omnibus

Election Code)

Note: The purpose of this kind of controversy is toascertain winners in the elections on basis of election

returns duly authenticated by board of inspectors and

admitted by the board of canvassers. (Abella v.

Larrazabal, G.R. No. 87721-30, December 21, 1989)

Q: Are pre-proclamation controversies allowed under


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the new Automated Elections Law?

A:GR: For purpose of the elections for president, vice

president, senator, and member of the House of

Representatives, no pre-proclamation cases shall be

allowed on matters relating to the preparation,transmission, receipt, custody and appreciation of election

returns or the certificates of canvass, as the case may be.

(Sec. 38, R.A. No. 9369)

XPNS:(i) Illegal composition of the Board of Canvassers (BOC);

(ii) Illegal proceedings of the BOC. (Sec. 1, Rule 3,

COMELEC Resolution No. 8804, March 22, 2010)

Q: Are there pre-proclamation cases in


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Q: Are there pre-proclamation cases inelections for President, Vice-president and

Members of the House of Representatives on

matters relat ing to the preparat ion,

t ransmission, receipt , custody, and

appreciation of the election returns or the

certificates of canvass?

A:

GR: No (Sec. 15, Synchronized Election Law).

No pre-proclamation cases are allowed in case of

barangay election. (Sec. 9, R.A. No. 6679)


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EXCEPTIONS:

(i) Correction of manifest errors

(ii) Questions affecting the composition

or proceedings of the board of

canvassers and

(iii) Determination of the authenticity

and due execution of certificates ofcanvass as provided in Sec. 30 of R.A.

7166, as amended by R.A. 9369.


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POST ELECTIONREMEDIES


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BAR QUESTION 1996 (Q14)

1. As counsel for the protestant, where will you file

an election protest involving a contested electiveposition in:

a. the barangay?

b. the municipality?c. the province?

d. the city?

e. the House of Representatives?

Suggested Answer:


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1. In accordance with Section 2(2), Article IX-C of theConstitution an election protest involving the

elective position enumerated below should be filedin the following courts or tribunals:

a. Barangay - Metropolitan Trial Court, MunicipalCircuit Trial Court, or Municipal Trial Court

b. Municipality - Regional Trial Court

c. Province - COMELEC

d. City - COMELEC

e. Under Section 17. Article VI of the Constitution,an election protest involving the position of

Member of the House of Representatives shall befiled in the House of Representatives ElectoralTribunal.

ELECTION CONTESTS


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ELECTION CONTESTS

An election protest is initiated by filing a protest

containing the following allegations:

a. The protestant is a candidate who duly filed acertificate of candidacy and was voted for in the

election:

b. The protestee has been proclaimed;

c. The date of the proclamation, (Miro vs. COMELEC,121 SCRA 466)


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The following have jurisdiction over electioncontests:

a. Barangay officials - Inferior Court;

b. Municipal officials -Regional Trial Court;

c. Regional, provincial, and city officials COMELEC

d. Congressman -House of Representatives ElectoralTribunal.

e. Senators - Senate Electoral Tribunal.

f. President and Vice President - Supreme Court


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The decision of the inferior court in

election contests involving barangay officialsand of the Regional Trial Court in election

contests involving municipal officials are

appealable to the COMELEC. (Section 2(2).

Article IX-C of the Constitution.)

The decision of the COMELEC may be

brought to the Supreme Court on certiorarion questions of law. (Rivera vs. COMELEC,199 SCRA 178)

The decision of the COMELEC in election


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The decision of the COMELEC in election

contests involving regional, provincial and

city officials may be brought to the SupremeCourt on certiorari (Section 7, Article IX-A and

Section 2(2), Article IX-C of the Constitution.)

The decisions of the Senate ElectoralTribunal and of the House of Representatives

Electoral Tribunal may be elevated to theSupreme Court on certiorari if there was grave

abuse of discretion. (Lazatin vs COMELEC 168

SCRA 391)

Q: What are the grounds for the filing of election protests?

A:


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A:

1. Fraud;

2. Vote-buying;

3. Terrorism;

4. Presence of flying voters;

5. Misreading or misappreciation of ballots;

6. Disenfranchisement of voters;

7. Unqualified members of board of election inspectors; andOther election irregularities.

Note: Pendency of election protest is not sufficient basis toenjoin protestee from assuming office.

A protestant has the right to withdraw his protest or drop pollingplaces from his protest. The protestee, in such cases, has no

cause to complain because the withdrawal is exclusive

prerogative of the protestant.

Q: When the protestant dies during the pendency of his/her election protest may his/her spouse substitute in his/


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her election protest, may his/her spouse substitute in his/

her stead to avoid dismissal of the protest?

A: No right of substitution can inure in favor of a surviving

spouse, for the right to hold the disputed public office is a

personal right which cannot be transmitted to the latters legal

heirs.

The rule on substitution as applied to election contest must only

be in favor of a person who is a real party in interest, e.g. the

party who would be benefited or injured by the judgment, and

the party who is entitled to avail of the suit. A wife cannot

substitute for her deceased husbands protest, for she will not,in any way, be directly or substantially affected by the possible

resolution of the protest. (Poe v. Macapagal-Arroyo, PET Case

002, Mar. 29, 2005)

SAMPLE QUESTION:


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SAMPLE QUESTION:

U n d e r t h e O m n i b u sE l e c t i o n C o d e , b r i e f l ydi f ferent iate an elect ion

protest from a quo warrantocase, as to who can file thecase and the respectivegrounds therefore.

Suggested Answer:


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An ELECTION PROTEST maybe filed by a losingcandidate for the same office for which the winner filed

his certificate of candidacy. A QUO WARRANTO CASEmay be filed by any voter who is a registered voter in theconstituency where the winning candidate sought to bedisqualified ran for office.

In an election contest, the issues are: (a) whoreceived the majority or plurality of the votes which werelegally cast and (b) whether there were irregularities inthe conduct of the election which affected its results.

In a quo warranto case, the issue is whether thecandidate who was proclaimed elected should bedisqualified because of ineligibility or disloyalty to thePhilippines.


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SAMPLE QUESTION:

D i s c u s s t h e d i s p u t a b l e

presumptions (a) of conspiracy to

bribe voters and (b) of the involvementof a candidate and of his principal

c a m p a i g n m a n a g e r s i n s u c h

conspiracy.

Suggested Answer:


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gg

Under Sec. 28 of the Electoral ReformsLaw -- proof that at least one voter indifferent precincts representing at least 20%of the total precincts in any LGU was offered,

promised or given money, valuableconsideration or other expenditure by therelatives, leader or sympathizer of acandidate for the purpose of promoting the

candidacy of such candidate, --- gives rise toa disputable presumption of conspiracy tobribe voters.


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Under Sec. 28 --- if the proof

affects at least 20% percent of theprecincts of the LGU to which the

public office aspired for by the favored

candidate relates, this shall constitute a

disputable presumpt ion of the

involvement of the candidate and of his

principal campaign managers in each of

the municipalities concerned, in theconspiracy.

P titi t A l P l ti


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Petition to Annul Proclamation

May be filed based on manifest errors in the

transmitted results or variance of results from theelection returns and the COC.

COMELEC is required to hear the petitionimmediately and the ballots may be orderedmanually re-counted to verify the manifest errors

or alleged variance.

Note: This remedy is much faster than an

election protest.

I titi t d l f il f l ti diff t


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

Held: A prayer to declare failure of elections

and a prayer to annul the election results x x x

are actually of the same nature. Whether an

action is for declaration of failure of elections orfor annulment of election results, based on

allegations of fraud, terrorism, violence or

analogous, the Omnibus Election Code

denominates them similarly. (Banaga, Jr. v.COMELEC, 336 SCRA 701, July 31, 2000, En Banc

[Quisumbing])

What conditions must concur before the Comelec can


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act on a verified petition seeking to declare a failure of

election? Is low turn-out of voters enough basis to

grant the petition?

Held: Before COMELEC can act on a verified petition seeking to

declare a failure of election, two (2) conditions must concur: first, no

voting has taken place in the precinct or precincts on the date fixed by

law or, even if there was voting, the election nevertheless results in

failure to elect; and, second, the votes not cast would affect the result of

the election. All the law requires is that a winning candidate must be

elected by a plurality of valid votes, regardless of the actual number of

ballots cast.

Thus, even if less than 25% of the electorate in the questioned precincts

cast their votes, the same must still be respected. (Mitmug v. COMELEC,230 SCRA 54, Feb. 10, 1994, En Banc [Bellosillo])

What are the two conditions that must concur before


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the COMELEC can act on a verified petition seeking to

declare a afailure of election?

Held: Before the COMELEC can act on a verifiedpetition seeking to declare a failure of election two

conditions must concur, namely: (1) no voting took

place in the precinct or precincts on the date fixed by

law, or even if there was voting, the election resulted ina failure to elect; and

(2) the votes not cast would have affected the result of

the election. Note that the cause of such failure of

election could only be any of the following: force

majeure, violence, terrorism, fraud or other analogous

causes. Banaga, Jr. v. COMELEC(336 SCRA 701)

SUSPECTED QUESTION:


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SUSPECTED QUESTION:

LOREN filed a protest questioning the

election of NOLI as Vice President. While thecase was pending, LOREN won as senator.

May LOREN continue with her electionprotest in order to determine the real winner in

the said elections?ANSWER: The purpose of the protest issimply to seek the removal of NOLI from office.LOREN forfeited her claim to the position by

filing her certificate of candidacy for senator.The protest has become moot. Nothing will begained by resolving it. (Legarda v. De Castro,18 January 2008)


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PROSECUTION

OF ELECTIONOFFENSES

Q: Who has the authority to prosecute election


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yoffenses?

A: The COMELEC is vested with the power of a publicprosecutor with the exclusive authority to conduct the

preliminary investigation and prosecution of election

offenses punishable under the Omnibus Election Code.

(Sec. 265, B.P. 881 Omnibus Election Code)

Q: May the COMELEC delegate such authority?

A: Yes. The COMELEC en banc may delegate such

authority to any public prosecutor but always subject to thecontrol and supervision of the COMELEC. (People v.

Delgado, G.R. No. Nos. 93419-32, September 18, 1990)

Q: In cases where the prosecutor exercises delegated


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authority to conduct preliminary investigation of

election offenses and such officer, after investigation,

already resolves the issue of probable cause, whereshould one appeal the resolution?

A: From such resolution, appeal to the COMELEC lies, and

the latters ruling on the appeal would be immediately finaland executory. However, if the preliminary investigation is

conducted by the COMELEC itself, appeal to the

COMELEC is unavailing, but the respondent may file a

motion for reconsideration of the resolution of theCOMELEC en banc finding probable cause. (Faelnar v.People, G.R. Nos. 140850-51. May 4, 2000)

Q: What are the election offenses?

A:


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A:

1. Vote buying and vote selling;

2. Conspiracy to bribe voters;3. Wagering upon result of election;

4. Coercion of subordinates;

5. Threats, intimidation, terrorism, use of fraudulent device or

other forms of coercion;6. Coercion of election officials and employees;

7. Appointment of new employees, creation of new position,

promotion, giving of salary increases;

8. Intervention of public officers and employees;

9. Undue influence;

10. Unlawful electioneering;

11. Others. (Sec. 261, B.P. 881 Omnibus Election Code)

Q: What is the prescriptive period of election offenses?


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A: 5 years from the date of their commission. (Sec. 267, B.P.

881 Omnibus Election Code)

Q: Which court has jurisdiction to hear and decideelection offenses?

A:

GR: The RTC has the exclusive and original jurisdiction to

hear and decide any criminal action or proceedings for

violation of the OEC.

XPN: The MTC has jurisdiction over offenses relating to failure

2012 notes on election law

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