Election Laws

PAGE 43ELECTION LAWS (Arranged by Sasha Go | UpdatedSOURCES AND CONTRIBUTORS: ATTY. VALENCIAS NOTES, JO PUZONS NOTES, JAZZIE SARONA; UP LAW 2001 ELECTION NOTES

PHILIPPINE ELECTION LAWS

Based on the Lectures and Outline of Atty. Jocelyn Valencia

INTRODUCTION/ GENERAL PROVISIONS

SOURCE OF POLITICAL POWER/ UNDERLIYING PHILISOPHY:

Article II Sec. 1 of the Constitution: The Philippines is a republican state. Sovereignty resides in the people and all government authority emanates from them.

LAWS GOVERNING ELECTIONS

A. CONSTITUTIONAL PROVISIONS

Article II, Section 1: Declaration of Principles Section 1 (foundation of the democratic process),

Section 13 (vital role of the youth in nation building)

Section 23 (state encourage non-governmental, community-based or sectoral organization (party-list),

Section 26 prohibition on political dynasties as may be defined by law)

Article III Bill of Rights

Section 4 (freedom of speech and of expression);

Section 5 (No religious test shall be required for the exercise of civil or political rights);

Section 8 (right to form associations for those employed in public and private sectors);

Section 16 (speedy disposition of cases before all judicial and QJ or administrative bodies)

Article IV on Citizenship (qualification of candidates and voters);

Article V, Suffrage.

Article VI Legislative Department (composition of the members of the HR, qualifications, term of office, party list, vacancy, composition of the HRET and SET;

Article VII Executive Department (qualifications, term of office, limitations of term, manner of canvass and proclamation, composition of the PET, vacancy;

Article IX-A (common provisions for constitutional offices) &

Article IX- C: COMELEC (composition, powers and functions of the COMELEC, the body created by the constitution to conduct any electoral exercise as well as uphold and safeguard the integrity and sanctity of the ballot in order to achieve its objective of holding an honest, orderly peaceful free and credible elections);

Article X General provision on Local Government (requirement for alteration of political boundaries);

Article XVI (General provisions) prohibition against partisan political activities or prohibition on the appointment or designation of a member of the armed forces in the active service to a civilian position in the government;

Article XVII amendments or revisions to the constitution

B. OMNIBUS ELECTION CODE BP 881 basic law on elections.

C. AMENDMENTS UNDER THE 1987 CONSTITUTION:

RA 6646 (Electoral Reform Law of 1987). Sec. 2 thereof re-enacted the OEC when it provided that the first local elections under the new Constitution and all subsequent elections and plebiscites shall be governed by this Act and by the provisions of the BP 881, otherwise known as the OEC of the Philippines, and other election laws not inconsistent with this Act;

RA 7166 (An Act which provided for the synchronization of the National and Local Elections of 1992;

RA 7904 (An Act Governing the conduct of the 1995 Senatorial and Local Elections;

RA 7941 (Nov. 26, 1991) An act providing for the election of party-list representatives through the party-list system;

RA 8189 (June 11, 1996 Voters Registration Act of 1996 providing for the General Registration of Voters & Adopting a System of Continuing Registration;

RA 8295 (June 6, 1997 Proclamation of Lone Candidate in Special Elections);

RA 8436, An Act Authorizing the COMELEC to Use an Automated System in the May 11, 1998 National and local Elections and in subsequent National and Local Electoral Exercises. (Sec. 11, impliedly repealed Sec. 67 of BP 881 being inconsistent with Sec. 11, which provides that elective officials running for any office other than the one he/she is holding in a permanent capacity, except for President and VP, shall be deemed resigned only upon the start of the campaign period corresponding to the position for which he/she is running);

RA 8524 (Feb. 14, 1998 An Act Changing the Term of Office of Brgy. Officials and Members of the SK from 3 years to 5 years amending Sec. 43 (c) of RA 7160, the Local Government Code of 1991;

RA 9006 Feb. 12, 2001, An Act to Enhance the Holding of FRECRE through Fair Election Practices. (Sec. 14 of RA 9006 expressly repealed Sec. 67 of BP 881 and rendered effective the provision of Sec. 11 of RA 8436 insofar as the applicability of Sec. 11 on the matter is concerned).

RA 9164 (March 19, 2002), An Act Providing for Synchronized Barangay and SK. Elections, amending RA 7160, as amended.

RA 9189, An Act Providing for a System of Overseas Absentee Voting by Qualified Citizens of the Philippines Abroad.

RA 9225 (August 29, 2003), An Act Making the Citizenship of Philippine Citizens who Acquire Foreign Citizenship Permanent, Amending For the Purposes C.A. No. 63, as amended

RA 9244 (February 19, 2004), An Act Eliminating the Preparatory Recall Assembly as a Mode of Instituting Recall of elective Government Officials.

The basic law on elections and these amendments are designed to improve the law and to protect the integrity of the elections in order to achieve the objective of holding an:

HONEST,

ORDERLY

PEACEFUL

FREE AND

CREDIBLE elections (HOPE-FRECRE).

D. LOCAL GOVERNMENT CODE (RA 7160)RA 7160 The Local Government Code of 1991 for

1. Recall of local elective officials;

2. Qualifications and Disqualifications of elections of local elective officials;

3. Local initiative & referendum

Applicability

Shall govern all elections of public officers and, to the extent appropriate, all referenda and plebiscite. (Section 2 of the Omnibus Election Code)

Further strengthened by Sec 2(1) of Art. IX-C, the Constitution empowers the COMELEC to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall.

The COMELEC is mandated to apply the OEC and all other statutes on the subject governing election laws. (Section 36 of RA 7166).

MODES OF POPULAR INTERVENTION

I. ELECTIONS/ SUFFRAGE

(i) ELECTIONS DEFINED

Carlos v. Angeles 346 SCRA 571 (2000) ELECTIONS is the choice or selection of candidates to public office by popular vote through the use of the ballot, and the elected officials of which are determined through the will of the electorate.

In the context of the Constitution, the term election may refer to the following:

(1) Conduct of the polls,

(2) Listing of voters,

(3) Holding of the electoral campaign, and

(4) The casting and counting of votes.

The winner is the candidate who has obtained a majority or plurality of valid votes in the election.

Romualdez v. RTC 226 SCRA 408 - The right to vote is a most precious political right, as well as a bounden duty of every citizen, enabling and requiring him/her to participate in the process of government so as to ensure that the government can truly be said to derive its power solely from the consent of the governed.

(ii) ESSENCE OF ELECTIONS

Sunga v. COMELEC 288 SCRA 76 - Plurality of votes is the essence of an election or majority rule. A public office is filled only by those who receive the highest number of votes cast in the election for that office which is a basic tenet in all republican form of government.

FACTS: Trinidad and Sunga, were candidates in the mayoralty race in the Province of Cagayan. Trinidad won while Sunga garnered the second place and when Trinidad was subsequently disqualified, Sunga claims that he should be proclaimed.

ISSUE: Whether Sunga should be declared winner.

HELD: The SC ruled that it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes be proclaimed winner and imposed as the representative of a constituency, the majority of whom have positively declared through their ballots that they do not choose him.

Rulloda v. COMELEC, G.R. No. 154198, January 20, 2003 the winner is the candidate who has obtained a majority or plurality of valid votes cast in the election. For, in all republican forms of government, the basic idea is that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election.

(iii) BASIS OF PLURAILITY OF VOTES

Mitmug v. COMELEC 230 SCRA - The majority or plurality of votes is determined by the number of registered voters who actually cast their votes or those who actually voted and not based on the number of registered voters. There is no provision in our election laws which requires that a majority of the registered voters must cast their votes. All the law requires is that the winning candidates must be elected by plurality of votes, regardless of the actual number of ballots cast. Therefore, even if less than 25% of the electorate in the questioned precincts cast their votes, the votes has to be respected.

(iv) CONSTRUCTION OF ELECTION LAWS

Election contests are reasonably and liberally construed as it is imbued with public interest to give way to the will of the electorate and ascertain by all means the real candidate elected by the people. - Sec. 3 Rule 1, COMELEC Rules of Procedure Reason: to promote the effective and efficient implementation of the objectives of ensuring the holding of an honest, orderly, peaceful, free and credible elections and to achieve a just, expeditious and inexpensive determination and disposition of every action and proceeding brought before the COMELEC.

Margarito Suliguin vs. COMELEC, March 23, 2006, GR No. 166046 citing the case of Bince v. COMELEC, 242 SCRA 436, the SC held political laws must be so construed so as to give life and spirit to the popular mandate freely expressed through the ballot. Technicalities and procedural niceties in election cases should not be made to stand in the way of the true will of the electorate. Bince v. COMELEC 242 SCRA 273 - Laws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections.

Benito vs COMELEC 235 SCRA 436 - the proclamation of Benito as mayor-elect by the Municipal Board of Canvassers was not a valid proclamation. The fact that the candidate who obtained the highest number of votes dies, or 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. Election contests involve public interest, and technicalities and procedural barriers should not be allowed to stand if they constitute an obstacle to the determination of the true will of the electorate in the choice of their elective officials. Laws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections. Technicalities of the legal rules enunciated in the election laws should not frustrate the determination of the popular will.In applying the rules of statutory construction however, the provisions of election laws are divided into three parts namely;

1) Those which refers to the conduct of elections required to be observed by election officials;

2) Those provisions which candidates for public elective office are required to do and comply with;

3) Those provisions which cover procedural rules designed to ascertain, in case of dispute, the actual winner in the elections.1) Those which refers to the conduct of elections required to be observed by election officials;

The rules and regulations for the conduct of elections are:

Mandatory before the elections, but when it is Directory only after the elections most particularly if innocent voters will be disenfranchised by the negligence or omission of the elections officers (who will be liable either criminally or administratively). Saya-Ange v. COMELEC, G.R. No. 155087, November 28, 2003 - The rules and regulations for the conduct of elections are mandatory before the election, but when it is sought to enforce them after the election, they are to be directory only, if that is possible especially where, if they are held to be mandatory, innocent voters will be deprived of their votes without any fault on their part. When the voters have honestly cast their ballots, the same should not be nullified because the officers appointed under the law to direct the election and guard the purity of the ballot have not done their duty. Fernandez vs COMELEC GR No. 9135 April 3, 1990

While Section 24 of Republic Act No. 7166, otherwise known as An Act Providing For Synchronized National and Local Elections and For Electoral Reforms, requires the BEI chairman to affix his signature at the back of the ballot, the mere failure to do so does not invalidate the same although it may constitute an election offense imputable to said BEI chairman.

Nowhere in said provision does it state that the votes contained therein shall be nullified. It is a well-settled rule that the failure of the BEI chairman or any of the members of the board to comply with their mandated administrative responsibility, i.e., signing, authenticating and thumbmarking of ballots, should not penalize the voter with disenfranchisement, thereby frustrating the will of the people. (as cited in Punzalan vs. COMELEC [G.R. No. 126669. April 27, 1998])

Punzalan v. COMELEC April 27, 1998 - Section 15 of RA 6646 as amended by Sec. 24 of RA 7166, requires, in addition to the preliminary acts for the conduct of vote as provided under Sec. 191 of the OEC, the Chairman, to affix their signatures at the back of each and every ballot to be used during the voting. The failure on the part of these election officials to do their duties will not invalidate the ballot for to rule otherwise would disenfranchise the voters and place a premium on the official ineptness and make it possible for a small group of functionaries, by their negligence or their deliberate inaction to frustrate the will of the electorate. It may however constitute as an election offense imputable to the said BEI Chairman. Bautista vs Castro 206 SCRA 305 - The absence of the signature of the Chairman of the Board of Election Tellers in the ballot given to a voter as required by law and the rules as proof of the authenticity of said ballot is fatal. This requirement is mandatory for the validity of the said ballot. Marcelino C. Libanan v. HRET a ballot without the BEI chairmans signature at the back is valid and not spurious, provided that it bears any one o these other authenticating marks, to wit

a. the COMELEC watermark; and

b. in those cases where the COMELEC watermarks are blurred or not readily apparent, the presence of red and blue fibers in the ballots.

2) Those provisions which candidates for public elective office are required to do and comply with;

The provision of law which candidates for office are required to comply with are generally regarded as mandatory and failure to comply would be fatal to the candidate. Example, rules prescribing the qualification of candidates (such as age, citizenship or residency requirements cannot be cured by vox populi vox dei), deadline or filing of certificate of candidacy or limitation of period within which to file an election contest.

3) Those provisions which covers procedural rules designed to ascertain, in case of dispute, the actual winner in the elections.

Maruhom v. COMELEC 331 SCRA 473, it was ruled that laws and statutes governing election contests especially the appreciation of ballots must be liberally construed and that in applying election laws, it would be far better to err in favor of the popular sovereignty than to be right in complex but little understood legalisms.

Pea v. HRET 270 SCRA 340 - While statues providing for election contests are to be liberally construed, the rule likewise stands, that in an election protest, the protestant must stand or fall upon the issues he had raised in his original or amended pleading filed prior to the lapse of the statutory period for filing of the protest considering that compliance therewith are rendered mandatory for candidates.

LIMITATIONS TO THE LIBERAL CONSTRUCTION (WHEN LIBERAL CONSTRUCTION POLICY NOT APPLICABLE)

1) When the amendment to pleadings in an election contest will substantially change the cause of action, defense or theory of the case;

2) When the amendment will alter a final judgment on a substantial matter;

3) When the amendments will confer jurisdiction upon the court when none existed before;

4) When it seeks to cure a premature or non-existent cause of action

5) When the amendment is intended to delay the proceedings of the case.

Hofer v. HRET, GR. No. 158833, May 12, 2005 - the time limit for presentation of evidence of 20 days conformably with Rule 59 of the HRET Rules is explicit and strictly complied with. It is not a technicality that can be set aside as would make the liberal construction policy operative.TYPES OF ELECTIONS

1. REGULAR ELECTIONS is an election held on such dates established by law at regular intervals. Whether national or local, it refers to an election participated in by

a. those who possess the right of suffrage,

b. are not otherwise disqualified by law and

c. who are registered voters.

Paras v. COMELEC 264 SCRA 49 (1996) SK election is not considered a regular elections because the said elections are participated in by youth with ages ranging from 15 to 21, some of whom are not qualified voters to elect local or national elective officials.

2. SPECIAL ELECTIONS

a) In cases were postponement and failure of elections are declared by COMELEC

b) In case a permanent vacancy shall occur in the Senate or House of Representative at least 1 year before the expiration of the term, the COMELEC shall call and hold a special election to fill the vacancy not earlier than 60 days nor longer then 90 days after the occurrence of the vacancy, However, in case of such vacancy in the Senate, the special elections shall be held simultaneously with the next succeeding regular elections.

c) In case a vacancy occurs in the offices of the President and Vice-President, no special elections shall be called if the vacancy occurs within 18 months before the date of the next presidential elections

OTHER FORMS OF POPULAR INTERVENTION

II. INTIATIVE

RA 6735:

INITIATIVE IS DEFINED AS THE POWER OF THE PEOPLE TO PROPOSE AMENDMENTS TO THE CONSTITUTION OR TO PROPOSE AND ENACT LEGISLATION THROUGH AN ELECTION CALLED FOR THE PURPOSE.

Initiative is resorted to (or initiated) by the people directly either because the law-making body fails or refuses to enact the law, ordinance, resolution or act that they desire or because they want to amend or modify one already existing.

There are 3 systems of initiative:

a. Initiative on the Constitution which refers to a petition proposing amendments to the Constitution;

b. Initiative on statutes which refers to a petition proposing to enact a national legislation; and

c. Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city or municipal or barangay law, resolution or ordinance.

INDIRECT INITIATIVE is exercised of initiative by the people through a proposition sent to Congress or the local legislative body for action.

III. REFERENDUM

REFERENDUM is the power of the electorate to approve or reject legislation through an election called for the purpose. The law-making body submits to the registered voters of its territorial jurisdiction, for approval or rejection, any ordinance or resolution which is duly enacted or approved by such law making authority.

Referendum may be of 2 classes:

a. Referendum on statutes which refer to a petition to approve or reject an act or law, or part thereof, passed by Congress; and

b. Referendum on local law which refers to a petition to approve or reject a law, resolution or ordinance enacted by regional assemblies and local legislative bodies.

SBMA V. COMELEC 262 SCRA 492 (1996) not only Ordinances but also Resolutions are also appropriate subjects of a local initiative.

WHO MAY EXERCISE: It is exercised by all registered voters of the country, autonomous regions, provinces, cities and barangays.

REQUIREMENTS:

1) To exercise the power of INITIATIVE AND REFERENDUM:

National Law or Law passed by the legislative assembly of an autonomous region, province or city:

a. at least 10% of the total number of registered voters,

b. of which every legislative district is represented by at least 3% of the registered voters thereof,

c. shall sign a petition for the purpose and register the same with the COMELEC.

d. The percentage requirement is likewise applicable and is deemed validly initiated to a referendum or initiative affecting a law, resolution or ordinance

Law passed in a municipality

a. petition is signed by at least 10% of the RV of the municipality

b. of which every barangay is represented by at least 3% of the RV voters therein.

With respect to a barangay resolution or ordinance

a. signed by at least 10% of the registered voters of said barangay.

2) a petition for an INITIATIVE on the 1987 Constitution,

a. must be signed by at least 12% of the total number of registered voters,

b. of which every legislative district must be represented by at least 3% of the voters therein.

c. LIMITATION: Initiative may be initiated only after 5 years following the ratification of the 1987 Constitution and only once every five (5) years thereafter.

PROCEDURE IN THE CONDUCT OF INITIATIVE AND REFERENDUM:

1. The COMELEC, shall schedule a special registration of voters at least 3 weeks before the scheduled initiative or referendum.

2. After determining the sufficiency of the petition, the COMELEC shall, within 30 days, publish the same in Filipino and English at least twice in a newspaper of general and local circulation and set the date of the Initiative or Referendum not earlier than 45 days but not later than 90 days from the determination by the COMELEC of the sufficiency of the petition.

3. The Election Registrar shall verify the signatures on the petition on the basis of the registry of voters, voters affidavits and voters identification cards used in the immediately preceding elections.

EFFECTIVITY OF INITIATIVE or REFERENDUM

1) The national law proposed for enactment, approval or amendment approved by a majority of the votes cast as certified by the COMELEC, shall become effective 15 days following completion of its publication in the Official Gazette or in a newspaper of general circulation in the Philippines.

2) The proposition to reject a national law approved by a majority of the votes cast, shall be deemed repealed and the repeal shall become effective 15 days following the completion of publication of the proposition and the certification by the Commission. But if the majority is not obtained, the national law sought to be rejected or amended shall remain in full force and effect.3) With regards to the proposition in an initiative on the CONSTITUTION approved by a majority of the votes cast in the plebiscite, the same shall become effective as to the day of the plebiscite.

Santiago v. COMELEC 270 SCRA 106, COMELEC cannot validly promulgate rules and regulations to implement the exercise of the right of the people to directly propose amendments to the Constitution through the system of initiative. The power of the COMELEC to issue rules and regulations is limited only to what is provided under (A) Section 3 of Article IX-C of the Constitution, or (b) by a law where subordinate legislation is authorized and which satisfies the completeness and sufficiency standard tests.

In this case the petition to propose amendments to the Constitution particularly the lifting of the term limits of public elective officials was not validly initiated as it failed to comply with the signature requirement for initiating an Initiative (Petition signed by at least 12% of all the registered voters where each legislative district is represented at least by 3%) . The COMELEC never acquired jurisdiction over the petition as jurisdiction is acquired only after its filing the petition being the initiatory pleading.

Lambino vs. COMELEC, G.R. No. 174153, Oct. 25, 2006

FACTS: The Lambino Group commenced gathering signatures for an initiative petition to change the 1987 Constitution and then filed a petition with COMELEC to hold a plebiscite for ratification under Sec. 5(b) and (c) and Sec. 7 of RA 6735. The proposed changes under the petition will shift the present Bicameral-Presidential system to a Unicameral-Parliamentary form of government. COMELEC did not give it due course for lack of an enabling law governing initiative petitions to amend the Constitution, pursuant to Santiago v. COMELEC ruling.ISSUES:

Whether the proposed changes constitute an amendment or revision

Whether the initiative petition is sufficient compliance with the constitutional requirement on direct proposal by the people

RULING:

Initiative petition does not comply with Sec. 2, Art. XVII on direct proposal by people

Sec. 2, Art. XVII...is the governing provision that allows a peoples initiative to propose amendments to the Constitution. While this provision does not expressly state that the petition must set forth the full text of the proposed amendments, the deliberations of the framers of our Constitution clearly show that: (a) the framers intended to adopt relevant American jurisprudence on peoples initiative; and (b) in particular, the people must first see the full text of the proposed amendments before they sign, and that the people must sign on a petition containing such full text.

The essence of amendments directly proposed by the people through initiative upon a petition is that the entire proposal on its face is a petition by the people. This means two essential elements must be present.

2 elements of initiative

First, the people must author and thus sign the entire proposal. No agent or representative can sign on their behalf.

Second, as an initiative upon a petition, the proposal must be embodied in a petition.

These essential elements are present only if the full text of the proposed amendments is first shown to the people who express their assent by signing such complete proposal in a petition. The full text of the proposed amendments may be either written on the face of the petition, or attached to it. If so attached, the petition must stated the fact of such attachment. This is an assurance that everyone of the several millions of signatories to the petition had seen the full text of the proposed amendments before not after signing.

Moreover, an initiative signer must be informed at the time of signing of the nature and effect of that which is proposed and failure to do so is deceptive and misleading which renders the initiative void.

In the case of the Lambino Groups petition, theres not a single word, phrase, or sentence of text of the proposed changes in the signature sheet. Neither does the signature sheet state that the text of the proposed changes is attached to it. The signature sheet merely asks a question whether the people approve a shift from the Bicameral-Presidential to the Unicameral- Parliamentary system of government. The signature sheet does not show to the people the draft of the proposed changes before they are asked to sign the signature sheet. This omission is fatal.

An initiative that gathers signatures from the people without first showing to the people the full text of the proposed amendments is most likely a deception, and can operate as a gigantic fraud on the people. Thats why the Constitution requires that an initiative must be directly proposed by the people x x x in a petition - meaning that the people must sign on a petition that contains the full text of the proposed amendments. On so vital an issue as amending the nations fundamental law, the writing of the text of the proposed amendments cannot be hidden from the people under a general or special power of attorney to unnamed, faceless, and unelected individuals.

The initiative violates Section 2, Article XVII of the Constitution disallowing revision through initiatives

Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode is through Congress upon three-fourths vote of all its Members. The second mode is through a constitutional convention. The third mode is through a peoples initiative.

Section 1 of Article XVII, referring to the first and second modes, applies to any amendment to, or revision of, this Constitution. In contrast, Section 2 of Article XVII, referring to the third mode, applies only to amendments to this Constitution. This distinction was intentional as shown by the deliberations of the Constitutional Commission. A peoples initiative to change the Constitution applies only to an amendment of the Constitution and not to its revision. In contrast, Congress or a constitutional convention can propose both amendments and revisions to the Constitution.

Does the Lambino Groups initiative constitute a revision of the Constitution?

Yes. By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a Unicameral-Parliamentary system, involving the abolition of the Office of the President and the abolition of one chamber of Congress, is beyond doubt a revision, not a mere amendment.

Amendment vs. Revision

Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle of separation of powers or the system of checks-and-balances. There is also revision if the change alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution. On the other hand, amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved. Revision generally affects several provisions of the constitution, while amendment generally affects only the specific provision being amended.

Where the proposed change applies only to a specific provision of the Constitution without affecting any other section or article, the change may generally be considered an amendment and not a revision. For example, a change reducing the voting age from 18 years to 15 years is an amendment and not a revision. Similarly, a change reducing Filipino ownership of mass media companies from 100% to 60% is an amendment and not a revision. Also, a change requiring a college degree as an additional qualification for election to the Presidency is an amendment and not a revision.

The changes in these examples do not entail any modification of sections or articles of the Constitution other than the specific provision being amended. These changes do not also affect the structure of government or the system of checks-and-balances among or within the three branches.

However, there can be no fixed rule on whether a change is an amendment or a revision. A change in a single word of one sentence of the Constitution may be a revision and not an amendment. For example, the substitution of the word republican with monarchic or theocratic in Section 1, Article II of the Constitution radically overhauls the entire structure of government and the fundamental ideological basis of the Constitution. Thus, each specific change will have to be examined case-by-case, depending on how it affects other provisions, as well as how it affects the structure of government, the carefully crafted system of checks-and-balances, and the underlying ideological basis of the existing Constitution.

Since a revision of a constitution affects basic principles, or several provisions of a constitution, a deliberative body with recorded proceedings is best suited to undertake a revision. A revision requires harmonizing not only several provisions, but also the altered principles with those that remain unaltered. Thus, constitutions normally authorize deliberative bodies like constituent assemblies or constitutional conventions to undertake revisions. On the other hand, constitutions allow peoples initiatives, which do not have fixed and identifiable deliberative bodies or recorded proceedings, to undertake only amendments and not revisions.

Tests to determine whether amendment or revision

In California where the initiative clause allows amendments but not revisions to the constitution just like in our Constitution, courts have developed a two-part test: the quantitative test and the qualitative test. The quantitative test asks whether the proposed change is so extensive in its provisions as to change directly the substantial entirety of the constitution by the deletion or alteration of numerous existing provisions. The court examines only the number of provisions affected and does not consider the degree of the change.

The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main inquiry is whether the change will accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision. Whether there is an alteration in the structure of government is a proper subject of inquiry. Thus, a change in the nature of [the] basic governmental plan includes change in its fundamental framework or the fundamental powers of its Branches. A change in the nature of the basic governmental plan also includes changes that jeopardize the traditional form of government and the system of check and balances.

Under both the quantitative and qualitative tests, the Lambino Groups initiative is a revision and not merely an amendment. Quantitatively, the Lambino Groups proposed changes overhaul two articles - Article VI on the Legislature and Article VII on the Executive - affecting a total of 105 provisions in the entire Constitution. Qualitatively, the proposed changes alter substantially the basic plan of government, from presidential to parliamentary, and from a bicameral to a unicameral legislature.

A change in the structure of government is a revision

A change in the structure of government is a revision of the Constitution, as when the three great co-equal branches of government in the present Constitution are reduced into two. This alters the separation of powers in the Constitution. A shift from the present Bicameral-Presidential system to a Unicameral-Parliamentary system is a revision of the Constitution. Merging the legislative and executive branches is a radical change in the structure of government. The abolition alone of the Office of the President as the locus of Executive Power alters the separation of powers and thus constitutes a revision of the Constitution. Likewise, the abolition alone of one chamber of Congress alters the system of checks-and-balances within the legislature and constitutes a revision of the Constitution.

The Lambino Group theorizes that the difference between amendment and revision is only one of procedure, not of substance. The Lambino Group posits that when a deliberative body drafts and proposes changes to the Constitution, substantive changes are called revisions because members of the deliberative body work full-time on the changes. The same substantive changes, when proposed through an initiative, are called amendments because the changes are made by ordinary people who do not make an occupation, profession, or vocation out of such endeavor. The SC, however, ruled that the express intent of the framers and the plain language of the Constitution contradict the Lambino Groups theory. Where the intent of the framers and the language of the Constitution are clear and plainly stated, courts do not deviate from such categorical intent and language. SBMA v. COMELEC 252 SCRA 492 (1996).

FACTS: Sangguniang bayan passed Pambayang Kapasyahan Bilang 10, Serye 1993, expressing therein its absolute concurrence as required by RA 7227 (Bases Conversion and Development Act) to join the Subic Special Economic Zone. On September 5, 1993, the SB submitted the Kapasyahan to the Office of the President. Petitioner SBMA seeks to nullify the respondent COMELECs Orders denying petitioners plea to stop the holding of a local initiative and referendum on the proposition to recall the Kapasyahan.

To begin with, the process started by respondents was an Initiative but respondent COMELEC made preparations for a Referendum. In the body of the COMELEC Resolution No. 2842, the word referendum is repeated at least 27 times, but initiative is not mentioned at all. The COMELEC labeled the exercise as a referendum, the counting of votes was entrusted to a referendum committee, the documents were called referendum returns, the canvassers referendum board of canvassers and the ballots themselves bore the description referendum.

SC DISTINGUISHED INITIATIVE FROM REFERENDUM:

InitiativeReferendum

Initiative is a process of law-making by the people themselves without the participation and against the wishes of their elected representatives,Referendum consists merely of the electorate approving or rejecting what has been drawn up or enacted by a legislative body.

The process and the voting in an initiative are more complex.Voters simply write either yes or no in the ballot

The Constitution clearly includes not only ordinances but also resolutions (which pertains to an act passed by a local legislative body) as appropriate subjects of a local initiative in accordance with Section 32 Article VI of the Constitution.

IV. RECALL

RECALL is the mode of removal of a public officer by the people before the end of his term of office which shall be exercised by the registered voters of a local government unit to which the local elective official subject of such recall belongs.

Garcia vs. COMELEC 227 SCRA 100 (1993) The peoples prerogative to remove a public officer is an incident of their sovereign power and in the absence of a constitutional restraint, the power is implied in governmental operations.

MODE OF INITIATING RECALL (RA 7160)

Limited to a petition commenced only by the registered voters in the local unit concerned.

Section 70: The recall of any elective provincial, city, municipal or barangay official shall be commenced by a petition of a registered voter in the LGU concerned with the following percentage requirement:

At least 25% in the case of an LGU with a voting population of not more than 20,000

At least 20% in the case of LGUs with a voting population of at least 20,000 but not more than 75,000. Provided, that in no case shall the required petitioners be less than 5,000

At least 15% in the case of local government units with a voting population of at least 75,000 but not more than 300,000: Provided however, that in no case shall the required number of petitioners be less than 15,000; and

At least 10% in the case of local government units with a voting population of over 300,000: Provided, however, that in no case shall the required petitioners be less than 45,000.(1) Initiated by a written petition for recall duly signed before the Election Registrar or his representative and in the presence of a representative of the petitioner and a representative of the official sought to be recalled, and in a public place in the province, city, municipality or brgy. as the case may be, shall be filed with the COMELEC through its office in the local government unit concerned.(2) The COMELEC shall cause the publication of the petition in a public and conspicuous place for a period of not less than 10 days nor more than 20 days, for the purpose of verifying the authenticity and genuineness of the petition and the required percentage of voters.

(3) Upon the lapse of the said period, the COMELEC shall announce the acceptance of candidates to the position and prepare the list of candidates including the names of the official sought to be recalled (as he is automatically considered a registered candidate and entitled to be voted upon (Sec. 71 RA 7160) but who is prohibited to resign while the recall proceeding is in progress (Sec. 73).

ELECTION ON RECALL

Upon the filing of the resolution or petition, the shall set the date of the election on recall not later than 30 days for city, brgy. or municipal officials and 45 days for provincial officials.

EFFECTIVITY OF RECALL

only upon the election and proclamation of a successor in the person of the candidate who received the highest number of votes cast during the election in recall.

Should the official sought to be recalled receive the highest number of votes, confidence in him is thereby affirmed and he shall continue in office (Sec. 72).

LIMITATIONS ON RECALL

an elective official may be subject of recall elections only once during his term exclusively on the ground of lack of confidence. The recall cannot be undertaken within 1 year from the date of the officials assumption of office or one (1) year immediately preceding a regular election (Sec. 74).

Paras v. COMELEC 264 SCRA 49: SK elections is not considered a regular local elections for purposes of recall under Sec. 74 of RA 7160. The term regular local elections is construed as one referring to an election where the office held by the local elective official sought to be recalled will be contested and be filled up by the electorate. It is confined to the regular elections of elective national and local officials.

Angobung v. COMELEC 269 SCRA 245, the petition to initiate recall proceedings must be filed by at least 25% of the total number of RV and cannot be filed by one person only. The law merely stated that the recall be initiated by a petition of at least 25% of the RV and did not provide that the petition must be signed, considering that process of signing is statutorily required to be undertaken before the ER.

Malonzo v. COMELEC and the Liga ng mga barangay March 11, 1997, Malonzo questioned the validity of recall proceedings initiated by the said Liga composed of Punong Barangays and SK Chairmen. The SC upheld the validity of the recall proceedings and stated that while the Liga is an entity distinct from the PRA, it so happens that the personalities representing the barangays in the Liga are the very same members of the PRA, the majority of whom met and voted in favor of the resolution calling for the recall of Mayor Malonzo.

Jovito Claudio v. COMELEC et. al and PRA of Pasay v. COMELEC 331 SCRA 388 (2000),

Two issues were settled in the matter of recall:

1. On whether the word Recall in par. (b) of Sec. 74 of RA 7160 includes the convening of the PRA and the filing by it of a recall resolution and

2. On whether the phrase Regular Local Elections in the same paragraph includes the election period for that regular election or simply the date of the election.

Facts: Claudio was the mayor of Pasay who assumed office on July 1, 1998. Subsequently in May 29, 1999, of the 1,790 members of the PRA 1079 adopted the resolution entitled Resolution to initiate the recall of Claudio as Mayor for Loss of Confidence.

Claudio and two others, filed oppositions alleging procedural and substantive defects among which and more importantly anent the issue at hand, that the convening of the PRA took place within one-year prohibited period.

Held:

First Issue the petitioner claims that when several barangay chairpersons met and convened on May 19, 1999 and resolved to initiate the recall, followed by the taking of votes on May 29, 1999, the process of recall began and that since May 29, 1999 was less than 1 year after he had assumed office, the PRA was illegally convened and all proceedings held thereafter, including the filing of the recall petition in July 2, 1999 were null and void.

The COMELEC on the other hand, maintains that the process of recall starts with the filing of the petition for recall and ends with the conduct of the recall elections and that, since the petition for recall was filed on July 2, 1999, exactly one year and 1 day after petitioners assumption of office, he recall was validly initiated outside the one year prohibited period. Both petitioner and COMELEC agreed that the term recall as used in Sec. 74 refers to a process. They however disagree as to when the process starts for the purpose of the one year limitation in par. (b) of Sec. 74.

RECALL as used in par. (b) of Sec. 74 refers to the election itself by means of which voters decide whether they should retain their local officials or elect his replacement. Sec. 74 deals with restrictions on the power of recall. On the other hand, Sec. 69 provides that the power of recall shall be exercised by the registered voters of the local government unit to which the local elective official belongs. Since the power vested on the electorate is not the power to initiate recall proceedings (such power is vested in the PRA or in at least 25% of the registered voters under Sec. 70), but the power to elect an official into office, the limitations in Sec. 74 cannot be deemed to apply to the entire recall proceedings.

In other words, recall in par. (b) of Sec. 74 refers only to the RECALL ELECTION, which excludes the preliminary proceedings to initiate recall such as the convening of the PRA and the filing of a petition for recall with the COMELEC, or the gathering of signatures of at least 25% of the voters for a petition for recall. Considering that the recall election in Pasay was set on April 15, 2000, more than one after the petitioner assumed office as mayor of that city, the SC held that there is no bar to its holding on said date.

As to the Second Issue petitioner argued that the phrase regular local elections in par. (b) of Sec. 74 does not only mean the day of the regular local elections which for the year 2001 is May 14, but the election period as well, at 45 days immediately before the day of the election. Thus contending that beginning March 30, 2000, no recall election may be held.

Had congress intended this limitation to refer to the campaign period, which period is defined in the OEC, it could have expressly said so. If we follow petitioners interpretation, it would severely limit the period a recall election will be held.

Manuel Afiado et. al. vs. COMELEC 340 SCRA 600, the issue is WoN an elective official who became Mayor by legal succession can be the subject of a recall election by virtue of a PRA Resolution passed or adopted when the said elective official was still the Vice-Mayor.

Facts: Miranda became the substitute candidate for his father, for the position of Mayor. Joel emerged as the winner over his opponent Abaya and he was later proclaimed with Navarro as Vice-Mayor.

Defeated Abaya filed with the COMELEC a Petition to Declare Null and Void Substitution which later was amended seeking to declare the certificate of candidacy of the father, Jose Miranda, as null and void. The COMELEC ruled that the Certificate of candidacy was not valid, hence, he cannot be validly substituted by his son Joel, as a mayoralty candidate in Santiago City.

While the Petition of Joel was pending with the SC, the PRA of Santiago City convened on July 12, 1999 and adopted a Resolution calling for the recall of Vice-Mayor Navarro for loss of confidence.

After the Supreme court denied with finality the Petition of Joel, Vice-Mayor Navarro assumed and took oath as new mayor of Santiago City.

COMELEC denied due course the PRA Resolution as moot for the reason that the assumption by legal succession of petitioner as the new Mayor is a supervening event which rendered the recall proceedings against her moot and academic.

The SC referred to the Resolution itself which specifically referred to the recall of Navarro as Vice-Mayor for her official acts as VM. Even if the PRA were to reconvene to adopt another resolution for the recall of Navarro, this time as Mayor, the same would still not prosper in view of the limitation as prescribed in Sec. 74 which provides that No recall shall take place within one year from the date of the officials assumption of office or one year immediately preceding a regular elections. Navarro assumed office on October 11, 1999 and recall elections can only be initiated between October 11, 2000 to October 11, 2001 which is now barred by the May 14, 2001 elections.

V. PLEBISCITE

PLEBISCITE is the vote of the entire people or the aggregate of the enfranchised individuals composing a state or nation expressing their choice for a proposed measure. It is generally associated with the amending process of the Constitution, particularly on the ratification aspects and is required under the following:

a) Section 4 Art. XVII with reference to amendments or revisions to the Constitution which may be proposed by congress upon of the votes of all its members or by constitutional convention b) Sec. 10 Art. X relating to the creation, abolition, merging, division or alteration of the boundaries of any political unit.

Sanidad v. COMELEC 181 SCRA 529 the Supreme Court declared as unconstitutional the restriction imposed by the COMELEC on media relative to discussing on air and print the features of the plebiscite issues in the creation of the autonomous region for the Cordilleras and held that Plebiscites are matters of public concern and importance and the peoples right to be informed and to be able to freely and intelligently make a decision would be best served by access to an unabridged discussion of the issues. Padilla Jr. vs. COMELEC 214 SCRA 735, the COMELEC resolved to approve the conduct of the plebiscite in the area or units affected for the proposed Municipality of Tulay-na-Lupa and the remaining areas of the mother Municipality of Labo, Camarines Norte. Majority of the electorates in the units affected did not favor the creation of Tulay-na-lupa.

Petitioner Gov. of Camarines Norte in a special Civil Action of Certiorari seek to set aside the Plebiscite contending that it was a complete failure and that the results obtained were invalid and illegal because the Plebiscite as mandated by COMELEC Res. 2312 should have been conducted only in the political unit or units affected (which is the 12 barangays and should not have included the mother unit of the Municipality of Labo.

HELD: With the approval and ratification of the 1987 Constitution, more particularly Art. X, Sec. 10, the creation, division, merger, abolition or alteration of the boundaries of any political unit shall be subject to the approval by a majority of the votes case in a Plebiscite in the POLITICAL UNITS AFFECTED and reiterated its ruling in Tan v. COMELEC 142 SCRA 727 (1986) that in the conduct of a Plebiscite, it is imperative that all constituents of the mother and daughter units affected shall be included. The term political units directly affected was held to mean that residents of the political entity who would be economically dislocated by the separation of a portion thereof have a right to vote in the said Plebiscite or the plurality of political units which would participate in the Plebiscite.

Tobias et. al. v. Abalos Dec. 8, 1994 (En Banc), the exclusion of the constituents of San Juan to participate in the Plebiscite for the ratification of RA 7675 relative to the conversion of Mandaluyong into a highy urbanized city notwithstanding that it involved a change in their legislative district was upheld for the reason that the matter of separate district representation is merely ancillary to the conversion of Mandaluyong into a highly urbanized city. City of Pasig vs. COMELEC/Municipality of Cainta Province of Rizal, Sept. 10, 1999, the issue as to the propriety of the suspension of the Plebiscite proceedings pending the decision of the boundary dispute between the Municipality of Cainta and the City of Pasig was raised.

FACTS: The City of Pasig passed on Ordinance creating barangays Karangalan and Napico. The Municipality of Cainta moved to suspend or cancel the respective Plebiscite due to the pending case before the RTC of Antipolo for the settlement of the boundary dispute and prayed for its suspension or cancellation until the dispute is decided by the RTC. The COMELEC suspended the holding of the Plebiscite for the creation of Brgy. Karangalan but rendered the creation of Napico as moot as the same was already ratified in the Plebiscite held for the purpose.

HELD: The creation of Napico cannot be considered as moot and it is most proper that the P be declared null and void in view of the pending boundary dispute between Pasig and Cainta which presents a prejudicial question and must be decided first before the P for the proposed brgys. be conducted. Ma. Salavacion Buac/Antonio Bautista vs. COMELEC, Alan Peter Cayetano, GR 155855, January 26, 2004

FACTS: A petition for certiorari and mandamus was filed by petitioners Buac and Bautista assailing the October 28, 2002 en banc resolution of the COMELEC which held that it has no jurisdiction over controversies involving the conduct of plebiscite and annulment of its results.

The facts show that in April 1988, a plebiscite was held in Taguig for the ratification of the Taguig Cityhood Law (RA No. 8487) proposing the conversion of Taguig from a municipality into a city. Without completing the canvass of 64 other election returns, the PBC declared that the NO votes won and that the people rejected the conversion of Taguig to a city. The PBOC was however ordered by the COMELEC en banc to reconvene and complete the canvass which the board did and in due time issued an Order proclaiming that the negative votes prevailed in the plebiscite conducted.

Petitioners filed with the COMELEC a petition to annul the results of the plebiscite with a prayer for revision and recount of the ballots cast therein. Cayetano intervened and moved to dismiss the petition on the ground of lack of jurisdiction of the COMELEC. He claimed that a plebiscite cannot be subject of an election protests. He averred that the jurisdiction to hear a complaint involving the conduct of a plebiscite is lodged with the RTC.

The COMELEC 2nd division initially gave due course to the petition and ruled that it has jurisdiction over the case. It treated the petition as akin to an election protest considering that the same allegations of fraud and irregularities in the casting and counting of ballots and preparation of returns are the same grounds for assailing the results of an election. It then ordered the Taguig ballot boxes to be brought to its Manila Office and created revision committees to revise and recount the plebiscite ballots.

In an unverified motion, Intervenor Cayetano moved for reconsideration of the COMELEC Order insisting that it has no jurisdiction to hear and decide a petition contesting the results of a plebiscite.

In a complete turnaround, the COMELEC 2nd division issued an Order on November 29, 2001 granting the Motion for Reconsideration. It dismissed the petition to annul the results of the plebiscite and ruled that COMELEC has no jurisdiction over said case as it involves an exercise of quasi-judicial powers not contemplated under Section 2(2), Article IX-C of the Constitution.

On appeal, the COMELEC En Banc affirmed the ruling of its 2nd division. It held that the COMELEC cannot use its power to enforce and administer all laws relative to plebiscites as this power is purely administrative or executive and not quasi-judicial in nature. It concluded that the jurisdiction over the petition to annul the Taguig plebiscite results is lodged with the RTC under Section 19(6) of BP 129 which provides that the RTC shall have exclusive original jurisdiction in cases not within the exclusive jurisdiction of any court or body exercising judicial or quasi-judicial functions. Hence, the petition before the SC.

Petitioner reiterates:

Jurisdiction to decide plebiscite protest cases is constitutionally vested with the COMELECCOMELEC Order is discriminatory as during the pendency of the Taguig case, the COMELEC assumed jurisdiction over a similar case concerning the revision and recount of the plebiscite ballots involving the conversion of Malolos into a City. COMELEC resolved the said case and already declared Malolos a city.

Respondent COMELEC/Cayetano contends that:

There is no such action as a plebiscite protest under the Constitution;

The laws and the COMELEC rules provided only for election protests;

The quasi-judicial jurisdiction of the COMELEC over election contests extends only to cases enumerated in Section 2(2), Article XI of the Constitution (sole judge of all contests involving), which does not include controversies over plebiscite results, and;

Even if the petition to annul plebiscite results is akin to an election protests, it is the RTC that has jurisdiction over election protests involving municipal officials and the COMELEC has only appellate jurisdiction in said cases.

HELD: The SC held that the key to the case is its nature, which involves the determination of whether the electorate of Taguig voted in favor of or against the conversion of the municipality of Taguig. The invocation of judicial power to settle disputes involving the conduct of a Plebiscite is misplaced. Judicial power as defined under Section 1, Article VIII of the Constitution as the duty of the court of justice to settle actual controversies involving the rights which are legally demandable and enforceable and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.

The instant case assailing the regularity of the conduct of the Taguig Plebiscite does not fit the kind of case calling for the exercise of judicial power. There is no plaintiff or defendant in the case for it merely involves the ascertainment of the vote of the electorate on whether they approve or disapprove the conversion of their municipality into a highly urbanized city.

In referring to Article IX-C, Section 2(1), the SC said that the said provision is explicit that COMELEC has power to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. To enforce means to cause to take effect or to cause the performance of such act or acts necessary to bring into actual effect or operation, a plan or measure which entails all the necessary to bring into actual effect or operation, a plan or measure which entails all the necessary and incidental power for it to achieve the holding of HOPE-FRECRE. The Sc was surprised that for the first time, COMELEC yielded its historic jurisdiction over a motion for reconsideration which was even filed out of time, thus rendering it without jurisdiction to entertain the same.COMELEC

NATURE AND POWERS

1. COMPOSITION AND QUALIFICATIONS OF THE CHAIRMAN & THE SIX (6) COMMISSIONERS

Composed of a Chairman and six commissioners who shall be: Natural born citizen of the Philippines and At the time of their appointment, at least 35 years of age, Holders of a college degree and

Must not have been candidates for any elective position in the immediately preceding elections. However, majority thereof, including the chairman, shall be members of the Philippine Bar who have been engaged in the practice of law at least 10 years.

2. MANNER OF APPOINTMENT/LIMITATIONS/REMOVAL

The Chairman and the commissioners shall be appointed by the President with the consent of the commission on appointments for a term of 7 years without reappointment.

Appointment to any vacancy shall be only for the unexpired term of the predecessor.

In no case shall any member be appointed or designated in a temporary or acting capacity.

Commissioners are removable by impeachment.

Can the President appoint or designate a temporary chairman of the COMELEC?

Brillantes v. Yorac 192 SCRA 358, The President cannot validly designate Yorac as acting chairman on the legal premise that Art. IX-C Sec. 1(2) prohibits the appointment of members in a temporary or acting capacity. Art. IX-A Sec. 1(2) provides for the independence of the COMELEC and therefore, the choice of a temporary chairman falls under the discretion and prerogative of the commission and cannot be exercised for it by the President.

1997 Bar Question: A month before the forth coming election, A one of the incumbent Commissioners of the COMELEC, died while in office and B, another Commissioner, suffered a sever stroke. In view of the proximity of the elections and to avoid paralyzation in the COMELEC, the President, who was not running for any office, appointed Commissioner C of the COA, who was not a lawyer but a CPA by profession, ad interim Commissioner to succeed Commissioner A and designated, by way of temporary measure, Associate justice D of the Court of Appeals as Acting Associate Commissioner during the absence of Commissioner B. Question: Did the President do the right thing in extending such ad interim appointment in favor of Commissioner C and designating Justice D acting Commissioner of the COMELEC?

Suggested Answer: No. The President was wrong in extending an ad interim appointment in favor of Commissioner C. In Summers vs. Ozaeta 81 Phil. 754, it was held that an ad interim appointment is a permanent appointment. Under Section 15, Article VII of the Constitution, within two months immediately before the next presidential elections and up to the end of his term, the President cannot make permanent appointments.

The designation of Justice D as acting Associate Commissioner is also invalid. Section 1(2), Article IX-C of the Constitution prohibits the designation of any Commissioner of the COMELEC in a temporary or acting capacity. Section 12, Article VIII of the Constitution prohibits the designation of any member of the Judiciary to any agency performing QJ or administrative functions.

1998 BQ: Suppose a Commissioner of the COMELEC is charged before the SB for allegedly tolerating violation of the election laws against proliferation of prohibited billboards and election propaganda with the end in view of removing him from office. Will the action prosper?

Suggested Answer: No. Under Section 8, Article XI of the Constitution, the Commissioners are removable by impeachment. As held in the case of In re Gonzales, 160 SCRA 771, a public officer who is removable by impeachment cannot be charged before the SB with an offense which carries with it the penalty of removal from office unless he is first impeached. Otherwise, he will be removed from office by a method other than impeachment.

MEANING OF THE PRACTICE OF LAW

Cayetano v. Monsod 210 SCRA 210, the Supreme Court held that engaging in law practice is not only confined to courtroom practice. It includes any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. In upholding the confirmation of Monsod, the SC held that the more than 10 years of work experience of Monsod as a lawyer economist and other position requiring application of his legal knowledge constituted as engaging in the practice of law as would qualify him with such work experience to be Chairman of the COMELEC.

NATURE OF THE POWERS OF COMELEC

The powers and functions possessed by the COMELEC are executive/administrative which pertains to the power to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall. The power to enforce and enforce all laws, rules and regulations governing elections is exclusive to the COMELEC with the set purpose of insuring an honest, orderly, peaceful, free and credible elections.

The RTC cannot assume jurisdiction over a case involving the enforcement of the election code which pertained to taking cognizance of a Special Civil Action filed before it to restrain Mayor from pursuing certain infrastructure projects during the election period which was alleged to constitute a violation of Sec. 261 of the OEC. (Zaldivar v. Estenzo 23 SCRA 540; Gallardo v. Tabamo 32 SCRA 690).

A judge who restrained the suspension of the canvassing of election returns is guilty of ignorance of the law and is administratively liable therefore. (Libardo v. Cesar 234 SCRA 13). The other executive/administrative pertains to all questions affecting elections such as:

1) The determination of the number and location of polling places.

2) Deputization/appointment of election officials and inspectors

3) Supervise registration of voters

4) Award of bid contracts

5) Regulate the use of firearms

6) Call special elections

7) Investigation and prosecution of election offenses

8) Declare a postponement, suspension, annulment or failure of elections

9) Regulate the use of franchise or permits to operate media of communications and information.

10) Require compliance with the rules for the filing of certificates of candidacy.

11) Proclamation of winners

12) Registration of Political Parties and Accredit Citizens Arms

QUASI-LEGISLATIVE POWERS

Pertains to:

1) Prescribing rules to govern procedure (COMELEC Rules of Procedure) and 2) promulgation of rules and regulations relative to the conduct of elections to insure an honest, orderly, peaceful, free and credible elections, such as; issuance of rules to supervise and regulate media and advertisement, rules to implement prohibition against expenditures or those in excess of the limits authorized by law.

Brilliantes, Concepcion, Jr., De Venecia, Angara, Galvez-Lim. Drilon, San Juan, Gonzales, Isleta and Bernas vs. COMELEC, GR 163193 June 15, 2004

FACTS: In this case, at issue was an En Banc Resolution No. 67.12, dated April 28, 2004 of COMELEC providing en Banc Resolution No. 6712, dated April 28, 2004 of COMELEC to acquire automated counting machines and other equipment, devices, and materials. COMELEC issued a resolution providing for the 3 phases in the implementation:

PHASE I computerized system of registration and voters validation or the so-called biometrics system of registration;

PHASE II Computerized voting and counting of votes;

PHASE III Electronic Transmission of Results

In connection with PHASE II, COMELEC issued Resolution No. 6074 awarding the AES contract to Mega Pacific Consortium which was nullified by the SC on January 13, 2004 which also voided the contract entered with Mega for the purchase of computerized counting machines for the purpose of implementing the 2nd phase of the modernization program. Consequently, COMELEC had to maintain the old manual voting and counting system for the May 10, 2004 elections.

Similarly, the validation scheme under Phase I likewise encountered problems and had earlier made pronouncements that it was reverting to the old listing of voters. But despite the scrapping of Phase II, COMELEC ventured to implement Phase III of the AES through an electronic transmission of advanced unofficial results of the 2004 elections for national, provincial, and municipal position also dubbed as an unofficial quick count.

NAMFREL and political parties moved for reconsideration COMELEC Resolution No. 6712, alleging that:

It disregards RA 8173, 8436, and 7166 authorizing only the citizens arm to use an election return for an unofficial count; other unofficial counts may not be based on an election return;

The Commissions copy, the 2nd and 3rd copy of the election returns, as the case may be, has always been intended to be archived and its integrity preserved until required by the COMELEC to resolve election disputes. Only the BEI is authorized to have been in contact with the return before the Commission unseals it.

The instruction contained in Resolution No. 6712 to break the seal of the envelope containing copies 2 and 3 will introduce a break in the chain of custody prior to its opening by the COMELEC. In the process of prematurely breaking the seal of the BEI, the integrity of the Commissions copy is breached thereby rendering it void of any probative value.

COMELEC asserts that Section 52(i) OEC grants statutory basis for it to issue and resolution which cover the use of the latest technological and electronic devices for unofficial tabulation of votes.

In assailing the validity of the resolution, petitioners alleged that the Resolution is void:

For preempting the sole and exclusive authority of Congress under VII, Section 4 to canvass votes for the election of President and Vice-President;

For disregarding RA 8173, 8436, and 7166 which authorize only the citizen arm to use an election return for an unofficial count;

For violation of Section 52(i) of the OEC requiring not less than 30 day notice of the use of new technological and electronic devices.

HELD:

1ST ISSUE: That the assailed resolution is void as it usurps the sole and exclusive authority of Congress to canvass the votes for the election of President and Vice-President in the guise of an unofficial tabulation of election results based on a copy of the election returns. Article VII, Section 4 of the Constitution provides in part that the returns of every election for President and Vice-President duly certified by the BOC of each province or city shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificate of canvass, the President of the Senate shall, not later than 30 days after the day of the election, open all the certificates in the presence of the Senate and the House of Representative in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes.

2nd ISSUE: The resolution disregards existing laws which authorizes solely the duly accredited citizens arm to conduct the unofficial counting of votes. Under Section 27 of RA 7166, as amended by RA 8173 and reiterated in Section 18 of RA 8436, the accredited citizens arm, in this case, NAMFREL is exclusively authorized to use a copy of the election returns in the conduct of an unofficial counting of the votes, whether for the national or the local elections. No other entity, including COMELEC itself, is authorized to use a copy of the ER for purposes of conducting an unofficial count.

3RD ISSUE: Since Resolution No. 6712 was made effective immediately a day after its issuance on April 28, 2004, the COMELEC could not have possibly complied with the 30-day notice requirement provided under Section 52(i) of the OEC. This indubitably violates the constitutional right to due process of the political parties and candidates.

The AES provided in RA 8436 constitutes the entire process of voting, counting of votes and canvassing/consolidation of results of the national and local elections corresponding to the Phase 1, 2, and 3 of the AES. The 3 phases cannot be affected independently of each other. Phase II was a condition sine qua non to the implementation of Phase 3 and the nullification by the SC of the contract for Phase II of the system effectively put on hold at least for the May 10, 2004 elections, the implementation of Phase 3 of the AES.adjudicatory or quasi-judicial powers

Embraces the power to resolve controversies that may arise in the enforcement of election laws and resolution of cases involving regional, provincial and city officials or to election disputes in general. Sec. 3, Article IX-C, that the COMELEC in the exercise of its QJ functions may sit en banc or in two divisions, and shall promulgate rules and procedures in order to expedite the disposition of elections cases, including pre-proclamation controversies and summon parties to a controversy pending before it. The authority to hear and decide election cases, including pre-proclamations controversies is vested with a division and the COMELEC sitting en banc however does not have the authority over it in the first instance. The COMELEC en banc can exercise jurisdiction only on Motions for Reconsideration of the resolution or decision of the COMELEC in division as a requirement for the filing of a petition for certiorari by the aggrieved party with the SC within 30 days from receipt of a copy thereof.

In the exercise of its QJ functions, the COMELEC is empowered to cite a party for contempt of court conformably with the rules of court and impose the appropriate penalties as therein prescribed. A motion to reconsider a decision, resolution, order or ruling of a Division shall be filed within ) days from the promulgation thereof. Such motion, if not pro-forma suspends the execution for implementation of the decision, resolution, order or ruling and would in effect, suspend the running of the period to elevate the matter to the SC (Sec. 4).

Coquilla v. COMELEC G.R. No. 151914, July 31, 2002, the SC resolved the issue on whether the 30-day period for appealing the resolution of the COMELEC was suspended by the filing of a motion for reconsideration by the petitioner. Private respondent in this case contends that the petition should be dismissed because it was filed late considering that the COMELEC en banc denied petitioners motion for reconsideration for being pro-forma and conformably with Sec. 4 of Rule 19, the said motion did not suspend the running of the 30-day period for the filing of the petition for certiorari under Sec. 7 Art. IX-A of the Constitution.

The COMELEC en Banc ruled that the motion for reconsideration was pro-forma on the ground that the motion was a mere rehash of petitioners averments contained in his verified answer and memorandum, neither were there new matters raised that would sufficiently warrant a reversal of the assailed resolution of the Second Division. However, the mere reiteration in a motion for reconsideration of the issued raised by the parties and passed upon by the court does not make a motion pro-forma; otherwise, the movants remedy would not be a reconsideration of the decision but a new trial or some other remedy.

In explaining the purpose/objective of a motion for reconsideration, the SC referred to its decision in Guerra Enterprises Company Inc. v. CFI of Lanao del Sur 32 SCRA 314 (1970), where it held that the ends sought to be achieved in the filing of a motion for reconsideration is precisely to convince the court that its ruling is erroneous and improper, contrary to the law or the evidence, and in doing so, the movant has to dwell of necessity upon the issues passed upon by the court. It a motion for reconsideration may not discuss these issues, the consequence would be that after a decision is rendered, the losing party would be confined to filing only motions for reopening and new trial.

The SC further enumerated cases where a motion for reconsideration was held to be pro-forma: (1) it was a second motion for reconsideration; (2) it did not comply with the rule that the motion must specify the findings and conclusions alleged to be contrary to law or not supported by the evidence; (3) it failed to substantiate the alleged error; (4) it merely alleged that the decision in question was contrary to law or (5) the adverse party was not given due notice thereof.

Angelia v. COMELEC 332 SCRA 757 - As provided under Rule 13, (1) of the COMELEC Rules of Procedure, a Motion for Reconsideration of an En Banc Resolution is a prohibited pleading, EXCEPT IN ELECTION OFFENSE CASES (SEC. 261 OF THE OEC).

The proper recourse of a party who is aggrieved by a Decision of the COMELEC En Banc on a Motion for Reconsideration of a decision of a division in an ordinary action (election protest, QW, appeal from decisions of the court in election protest cases), is to file a petition for certiorari under Rule 65 of the Rules of Civil Procedure within 30 days from receipt of the aggrieved party of the said decision, order or ruling.

Banaga, Jr. v. COMELEC 336 SCRA 701 - An en banc decision in a special action (petition to deny due course or to cancel a certificate of candidacy, proceedings against a nuisance candidate, disqualification of candidates and postponement or suspension for elections, pre-proclamation controversies) becomes final and executory five (5) days from promulgation.

Reyes v. RTC Mindoro 244 SCRA 41, the SC ruled that in providing that the decisions, order and ruling of COMELEC which may be brought to the SC on certiorari under Art. IX-A#7 refers to the special civil action for certiorari under Rule 65.

Garces v. Court of Appeals 259 SCRA 99 (1996) and Filipinas Engineering & Machine Shop v. Ferrer 135 SCRA 25 (1985), the SC interpreted that term final orders, rulings and decisions of the COMELEC reviewable by the SC on certiorari as provided by law are those rendered in actions or proceedings before the COMELEC and taken cognizance of by the said body in the exercise of its adjudicatory or QJ powers. The Filipinas case involves a resolution of the COMELEC awarding a contract for a supply of voting booths to a private party, as a result of its choice among various proposals submitted in response to its invitation to bid, is not reviewable by certiorari as it is not an order rendered in a legal controversy before it but merely as an incident of its inherent administrative functions over the conduct of elections. Hence, any question arising from said order may be taken in an ordinary civil action for injunction with the RTC.

Loong v. COMELEC, 305 SCRA 832 (1999) and Macabago v. COMELEC, November 18, 2002, the issue brought before the SC is whether or not a petition for certiorari and prohibition under Rule 65 of the Rules of Civil Procedure is a proper remedy to invalidate a resolution of the COMELEC issued in the exercise of its administrative powers?

SC held that although as a general rule, an administrative order of the COMELEC is not a proper subject of a special civil action for certiorari, but when the COMELEC however acts capriciously or whimsically, with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing such an order, the aggrieved party may seek redress from the SC via civil action for certiorari under Rule 65 of the Rules of Civil Procedure.

The main issue in the Loong case is whether the COMELEC gravely abused its discretion when it ordered a manual count of the 1998 Sulu local elections. The resolution of the issue involved an interpretation of RA 8436 on automated election in relation to the broad power of the COMELEC under Section 2(1) of Article IX-C (enforcement, etc.). The SC took cognizance as the issue is not only legal but one of first impression and suffused with significance to the entire nation. It is adjudicatory of the right of parties to the position of the Governor of Sulu which are enough consideration to call for an exercise of the certiorari jurisdiction of the Court.

Ambil, Jr. v. COMELEC, 344 SCRA 358, the issue brought before the SC is whether the SC has the power to review via certiorari an interlocutory order or even a final resolution of a Division of the COMELEC. Pursuant to Section 7 of Article XI-A of the Constitution each commission shall decide by a majority vote of all its members in cases or matter brought before it within 60 days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon filing of the last pleading, brief or memorandum required by the rules of the commission or by the commission itself. Unless otherwise provided by this constitution or law, any decision, order or ruling of each commission may be brought to the SC on certiorari by the aggrieved party within 30 days from receipt of a copy thereof.

The SC held that is has interpreted this provision to mean final orders, rulings and decision of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers and that the said final decision or resolution must be of the COMELEC en banc, not of a division and certainty not an interlocutory order of a division. The SC has no power to review via certiorari, an interlocutory order or even a final resolution of a Division of the COMELEC.

The mode by which a decision, order or ruling of the COMELEC en banc may be elevated to the SC is by way of a special civil action of certiorari under Rule 65 of the 1964 Revised Rules of court, now expressly provided in Rule 64 of the Rules of Civil Procedure, as amended. Rule 65, Section 1, 1997 Rules of Civil Procedure, as amended, on the other hand, requires that there be no appeal or any plain, speedy and adequate remedy in the ordinary course of law. A MR is a plain and adequate remedy provided by law. Failure to abide by this mandatory procedural requirement constitutes a ground for dismissal of the petition.

Another issue in this case is that the decision of a member of a division whose decision has not yet been promulgated prior to his retirement cannot validly take part in the resolution or decision much more could be the ponente of the resolution or decision as a final decision or resolution becomes binding only after it is promulgated. The resolution of decision of the Division must be signed by a majority of its members and duly promulgated. Otherwise, before that resolution is so signed and promulgated, there is no valid resolution or decision to speak of.

adMINISTRATIVE FUNCTION

The doctrine of exhaustion of administrative remedies was likewise discussed by the SC stressing that before a party is allowed to seek the intervention of the court, it is a pre-condition that he should have availed of all the means of administrative processes afforded to him. A MR then is a pre-requisite to the viability of a special civil action for certiorari unless the party who avails of the latter can convincingly show that his case falls under any of the following exceptions to the rule:

When the question is purely legal;

Where judicial intervention is urgent;

Where the application may cause great and irreparable damage;

Where the controverted acts violates due process;

Failure of a high government official from whom relief is sought to act on the matter;

When the issue for non-exhaustion of administrative remedies has been rendered moot. Sabdullah T. Macabago v. COMELEC/Jamael M. Salacop, 392 SCRA 178 (2002)

--(Failure if elections, annulment of elections, pre-proclamation, election protest, distinction between the remedies under Rule 64 and 65 of the Rules of Court)

FACTS:Macabago and Salacop were candidates for Municipal Mayor of Saguiran, Lanao del Sur were Macabago was proclaimend winner by the MBC.

Salacop filed a petition with the COMELEC against the Macabago, the proclaimed Vice-Mayor, MC and MBOC to annul the elections and the proclamation of candidates alleging massive substitution of voters. Rampant and pervasive irregularities in voting procedures in some precincts and failure of the BEI to comply with Sections 28 and 29 of the COMELEC Resolution No. 3743 and Section 193 of the OEC, thus rendering the election process in those precincts a mockery and the proclamation of the candidates a nullity. The case was docketed as SPC-01-234.

In support of his petition, Salacop appended thereto photocopies of random Voters Registration Record evidencing the fraud and deceit, as well as affidavits tending to prove that serious irregularities were committed in the conduct of the elections in the subject precinct.

Petitioner denied the truth of the material allegations in the petition and averred that it raised a PPC and that the grounds would be proper in an Election Protest. The COMELEC took cognizance of the petition and on February 11, 2002, issued an Order directing the EO to bring to and produce before the COMELEC Office in Manila the original VRRs of the questioned precincts for technical examination.

In the same Order, the COMELEC declared that contrary to petitioners claims, the petition did not allege a PPC, and characterized the petition as one for the annulment of the election or declaration of failure of election in the municipality, a special action covered by Rule 26 of the COMELEC Rules of Procedure. Hence, COMELEC set aside the docketing of the petition as a special case (SPC) and ordered the re-docketing thereof as a special action (SPA).

After the examination of the evidence submitted by the petitioner, the COMELEC concluded that there were convincing proof of massive fraud in the conduct of the elections in the four (4) precincts that necessitated a technical examination of the original copies of the CRRs and their comparison with the voters signature and fingerprints. The COMELEC further noted that since the lead of Macabago was only 124 votes vis--vis the 474 cotes of the contested precincts, the outcome of the petition would adversely affect the result of the elections in the Municipality.

Petitioner filed with the SC the instant special civil action for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, praying for the reversal of the February 11, 2002 order of the COMELEC En Banc on the following issues:

ISSUES:(a)Whether petitioners recourse to this Court under Rule 65 of the 1997 Rules of Civil Procedure, as amended, is in order; and

(b)Whether the COMELEC acted without jurisdiction or committed grave abuse of discretion amounting to excess or lack of jurisdiction in taking cognizance of the petition of private respondent and in issuing the assailed Order.

HELD:

FIRST ISSUEPetitioner avers that he was impelled to file the instant petition without first filing with the COMELEC a motion for reconsideration of its order because under the COMELEC Rules of Procedure, a MR of an interlocutory order of the COMELEC En Banc is a prohibited pleading and that the COMELEC acted with grave abuse of discretion amounting to excess or lack of jurisdiction in issuing the assailed order. Salacop on the other hand, insists that under Rule 64 of the 1997 Rules of Civil Procedure, a special civil action for certiorari filed with this Court is proper only for the nullification of a final order or resolution of the COMELEC and not of its interlocutory order or resolution such as the assailed order in this case.

The assailed order of the COMELEC declaring Salacops petition to one for annulment of the elections or for a declaration of a failure of elections in the municipality and ordering the production of the original copies of the VRRs for the technical examination is administrative in nature (Canicosa v. COMELEC, 282 SCRA 512 (1997)). Rule 64, which is a procedural device for the review of final orders, resolutions, or decision of the COMELEC, does not foreclose recourse to the SC under Rule 65 from administrative orders of said Commission issued in the exercise of its administrative function (Cabagnot v. COMELEC, 260 SCRA 503 (1996). As a general rule, an administrative order of the COMELEC is not a proper subject of a special civil action for certiorari (Tupay Loong v, COMELEC, 305 SCRA 832 (1999)). But when the COMELEC acts capriciously or whimsically with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing such an order, the aggrieved party may seek redress from the SC via a special civil action for certiorari under Rule 65 of the Rules. Chavez v. Commission in Elections 211 SCRA 315 (1992), the SC held that the resolution of the COMELEC in deleting the name of a candidate in the list of qualified candidates does not c