PHILIPPINE ELECTION LAWS ELECTION LAWS 1. 1987 Constitution 9. Voter’s Registration Registra tion Act of 1996 (RA 8189) 2. Omnibus Election Code (BP 881) 10. Overseas Absentee Voting (RA 10590 3. Automated Election Law (RA 9369 amending RA 9189) amending RA 8436) 11. Biometrics (RA 10367) 4. Synchronized Elections Act Act (RA 7166) 12. Lone Candidate in Special Elections (RA 5. 1991 Local Government Code (RA 7160) 8295) 6. Initiative and Referendum (RA 6735) 13. Official Sample Ballots (RA 7004) 7. Party-List System Act (RA 7941) 14. Citizenship Retention and Re-acquisition 8. Fair Election Act (RA 9006) Act (RA 9225) 9225 ) When you talk about election law, it’s not just about Batas Pambansa 881, which is the Omnibus Election Code. Right now, unlike the LGC 1991, we have no single law that will cover all aspects of Election Law. Dean Andy Bau said, hopefully, in the near future, we will have one major Election Law. For example, when we look at #3, that refers to automated election law. Clearly, a lot of the provisions of the Omnibus Election Code are no longer relevant. When we talk about campaign, this is covered by The Fair Election Act (RA9006). When we talk about registration, it is covered by another law. When we talk about Overseas Absentee Voting, that’s covered by another law. !
SLIDE 4: PHILIPPINE ELECTIONS General Free Direct Equal Secret Choices (Person & Policy) Automated All Levels Synchronized conduct •
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
!
! ! ! !
!
!
!
!
Regular Plurality Formula Regulated by Law Supervised by Comelec Honest, Orderly and Peaceful Clean and Fair Inexpensive Participated in by Political Parties Public Disclosures
Unlike the states wherein electoral colleges actually determine the outcome of the elections, here our elections are referred to as direct where every vote counts and given one vote each. Secret, no one must know what your vote was. Except for the barangays, it is automated at all levels. It is synchronized but not necessarily simultaneous. Again Barangay and SK elections are not part of the general elections but last year we started electing the officials of the autonomous region together with other national and local officials. For all elective officials, except for the party list representatives, they’re elected by plurality. We don’t have round of elections compared to other countries; every president must garner more than half of the votes. In our case we have minority presidents. Public disclosures is the need to file your statement of contributions and expenditures. There is a need to file before a COMELEC your you r permits for campa igned rallies. It must be inexpensive there is a cap of P10 P5 P3 but we all know there are ways by which you can circumvent and even skirt the P10 P5 P3 requirement. And the COMELEC is the only body which whic h actually oversees and has control over ov er the election process. But Bu t that does not mean that COMELEC is the sole arbiter of the election protest. As we know we have various or several electoral tribunals.
SLIDE 5: PHILIPPINE ELECTIONS (May 2016) Figures Registered Voters: 54,363,844 Established Precincts: 369,133 Clustered Precincts: 92,509 (not more than 7 precincts and 800 voters) Vote-Counting Vote-Coun ting Machines (VCMs): 97,517 (Phl 92,509; Overseas 120, Contingency 4,888) Major Political Parties: 14 (2 dominant parties; 10 major national and 2 major local) • • •
•
•
Elective Offices President: 1 Vice-President: Vice-Presiden t: 1 Senators: 12 (of 24) District Representatives: 235 Party-List Representatives: 58 (59) Autonomous Region: R egion: 1 Provinces: 81 Cities: 144 Municipalities: Municipalities: 1,490 • • • • • • • • •
!
So far as COMELEC is concerned for party list the computation is 58 but I believe it should be 59 because 58 is actually less than 20%.
SLIDE 6: COMISSION ON ELECTIONS •
• • •
Independent 7-Person Constitutional Body (administrative agency, public office, fixed term, permanent appointments) Plenary authority to decide all questions affecting elections except the question as to the right to vote Enjoys Fiscal Autonomy Wide discretion in adopting means to carry out its mandate of ensuring HOPE (not straitjacketed by procedural rules) ! ! ! ! !
!
! !
It is an independent body, like all independent body their decisions are subject to judicial review by the SC. COMELEC is an administrative agency at the same time it is a public office. The term of office of all members of the COMELEC en banc is fixed by the constitution. They cannot be appointed in acting, designated, or in a temporary capacity. They have plenary authority to decide all matters pertaining to the elections. But again we must qualify that in terms of the jurisdiction given to electoral tribunals. In so far determining who are qualified to vote, COMELEC has no power or authority over determining one’s right to vote or suffrage. Again this has been given to the regular courts, not to COMELEC, even at the appellate level. All constituti onal commissions commiss ions enjoy fiscal fi scal autonomy. COMELEC can’t bend its own rules. It can suspend its own rules in order to achieve the clean, honest, orderly, peaceful, free elections. A lot of SC rulings have said that COMELEC cannot be straight-jacketed by their own rules. Obviously for as long as these rules are publish before application.
SLIDE 7: COMISSION ON ELECTIONS • • •
Enforcement Power: All Power: All election laws (persons and policies); polici es); exclusion exclusio n of others Judicial Power: Qualifications and Election Contests (excludes Suffrage) Jurisdiction: Original (Regional, Provincial and City); and Appellate (Municipal, Barangay and Sangguniang Kabataan) ! !
!
COMELEC has the power to enforce but no power to amend the law. Only the Congress can amend the law. COMELEC has control and supervision overall boards of candidates, except congress, and all boards of election inspectors. In a recent case SC said they have control and supervision over all election officers. COMELEC has regional jurisdiction over regional provincial city officials when we talk about election protest. But for all disqualification cases regardless of the position they are cognizable by the COMELEC commission. COMELEC exercises appellate jurisdiction over municipal barangay and SK officials.
SLIDE 8: COMISSION ON ELECTIONS • • •
Remedies: En Banc (MR, administrative) administrative) and Division (1st instance, instance, judicial) Process: Division - MR to to En Banc then then Certiorari to SC Contempt: Judicial (not Administrative) !
There are certain cases which are cognizable by the COMELEC en banc at the first instance as we all know these could be administrative administrative cases and motion for reconsideration of decisions made the COMELEC division.
!
However as a general rule we must file a case before the COMELEC division, as long as this is judicial in nature. From the division we elevate it to the en banc for a motion for reconsideration then you file a certiorari before the SC. And all COMELEC decisions are heard before the SC en banc, they are not ruled upon by any of the divisions of the SC. The power of the COMELEC to cite a person in contempt is limited, not absolute. They can only do so in the exercise of their judicial powers. If ever there is disorderly behavior for that admin case before COMELEC, like all admin agencies the recourse would be to go to court. But if it’s judicial in nature then they can do so on its own.
SLIDE 9: COMISSION ON ELECTIONS Judicial (Division) Administrative (En Banc) Disqualification Failure of Elections Election Protest Postponement of Elections Quo Warranto Election Offense (filing of information) Pre-Proclamation Annulment of Book of Voters Annulment of Proclamation Cancellation of certificate of candidacy based on final judgment on conviction with ancillary Intra- and inter-party penalty of DQ Cancellation of a certificate of candidacy Allocation of party-list seats Leadership (not expulsion of member) Accreditation of Major Parties Registration of Political Parties Delineation between judicial and administrative. At the first instance for judicial cases, you file it with the Division. There are only two divisions of COMELEC, and the COMELEC Chair does not sit in any of these Divisions. In admin cases, this is the list of Admin cases cognizable at the first instance by the COMELEC En banc. •
•
•
•
•
•
•
•
•
•
• •
•
•
•
•
! !
!
!
SLIDE 10: COMISSION ON ELECTIONS
!
!
!
!
3 types of possible disputes when we talk about the decisions made by the COMELEC. If we talk about Administrative, then we file it with the COMELEC En Banc. Then file a MR before the COMELEC En Banc before elevating the matter to the Supreme Court. If it is a judicial matter, then you file it with the Division then MR before the COMELEC En Banc, then elevate before the SC. Dotted line, in certain instances, even for administrative cases, there is no need for filing a MR before COMELEC En Banc. If you are able to name and SC obviously subscribes to your position that you
!
can dispense with the rule on exhaustion of administrative remedies. There are 19 or so exceptions to the rule on exhaustion of administrative remedies. However you must be able to distinguish if the matter is not judicial in nature, in so far as resolving controversies, if it is rule-making, then you can elevate the matter directly to the Supreme Court. One rule on rule-making, relative to admin law, when you talk about exhaustion of administrative remedies, you only talk about dispute resolution. When you talk about rule-making, you do not need to exhaust, you can seek immediate remedy before the Regular Courts. In this case, for COMELEC, you go directly to the SC.
SLIDE 11: PUBLIC OFFICES Branch Regular Courts
Tribunals
COMELEC
Executive
!
!
!
Public Office Supreme Court (judicial review over SET and HRET, 2016) Court of Appeals Regional Trial Court Municipal Trial Court Presidential Electoral Tribunal Senate Electoral Tribunal (exclusive and only task, 2016) House of Representatives Electoral Tribunal National Board of Canvassers En Banc Division (can become final without en banc confirmation, 2016) Board of Canvassers Board of Election Inspectors Law Department Department of Justice
What are the public offices that can resolve controversies pertaining to election? We have regular courts, that would include the ff: MTC, RTC: when we talk about inclusion, exclusion cases. CA: if there is a mixed question of fact or law, or when we talk about right to suffrage. SC: suffrage and decisions made by COMELEC and the electoral tribunals PET, SET, HRET : 2 cases you can bring to these electoral tribunals 1) Election protest 2) Quo Warranto Case COMELEC: serves as the national Board of Canvassers for Senators Party-list representatives Regional officials COMELEC En Banc COMELEC Divisions ( 3-3) Board of Canvassers - under control and supervision Board of Election Inspectors Law Department Authority to file, investigate and prosecute election offenses •
•
•
•
•
•
•
•
•
•
•
•
Under the current laws, the prosecutors/fiscals have concurrent jurisdiction to investigate and hear election offenses DOJ is also relave because the prosecutorial system is under the DOJ and they can prosecute election offenses
SLIDE 12: ELECTION TRIBUNALS
!
!
!
!
!
For disqualification cases, prior to proclamation, for all positions, they are cognizable by the COMELEC Division at the first instance Example, you want to question the qualification of the President, prior to proclamation, then you file it with the COMELEC Division, not with the PET The jurisdiction of the electoral tribunals are only reckoned after the proclamation. But for a quo warranto case, for lack of eligibility, which effectively questions the qualification of a candidate, but in this case, they are now proclaimed candidates, you apply the various jurisdictions depending on the positions. Proclamation for; done by Pres, VP - COMELEC Senators, Party-list Representatives, Regional Officials - COMELEC En Banc Provincial Officials - Provincial Board City Officials - City Board Municipal Officials - Municipal Board Postponement and Failure under RA 7166, they are now considered as administrative cases and cognizable by COMELEC En Banc at the first instance
SLIDE 13: VOTERS: CONCEPTS • •
• •
What? Suffrage is a Right (not an obligation) Who? Qualifications defined in Constitution; Disqualifications defined in Statute; Allow Absentee Voting, Dual Citizens, Disabled and Illiterates to Vote How? Procedural Requirements allowed to be imposed, Substantive not allowed Distinguished from Right to Register
!
!
!
Suffrage is now considered as a right, and no longer an obligation. Voters who do not vote, or do not register, cannot be penalized for not exercising this right. Qualifications are defined in the Constitution. Congress cannot impose additional substantive requirements. Congress can only impose procedural requirements, such as continuing system of registration. The right to vote is different from the right to register. Right to vote is reckoned on election day. But the the right to register can be prior to election day, for as long as you are qualified on election day (you’re not yet 18, but you will be on election day), you have the right to register.
SLIDE 14: VOTERS: QUALIFICATIONS Filipino Citizen At least 18 years of age on election day Resident in Philippines for at least 1 year prior to election day (domicile; permanent residency) Resided in place wherein propose to vote for at least 6 months prior to election day (permanent or temporary) Free from Disqualifications In order to vote, must be a registered voter Qualifications Residence in the Philippines - that speaks of either domicile and permanent residency Residency in the place where you intend to vote, whether city or municipality - domicile, permanent residency, or temporary residency for at least 6 months reckoned from election day Despite the fact you possess all the qualifications but you’re not a registered voter, then you cannot exercise that right. • • • •
• •
!
•
•
!
SLIDE 15: VOTERS: DISQUALIFICATIONS Sentenced by final judgment – imprisonment of 1 year or more Sentenced to suffer accessory penalty – political rights Adjudged by final judgment – crime involving disloyalty Court-declared insane and incompetent persons You must be free from all disqualifications enumerated by the continuing registration act. The grounds to disqualify a voter will happen or exist after you are qualified. So, you are qualified now, but afterwards you commit a crime or you were declared insane, you are now disqualified. These grounds are post-eligibility. Because if it were pre-eligibility, that will amount to a substantive requirement which is not allowed because the list of requirements under the Constitution is exclusive. SLIDE 16-17: VOTERS: REGISTRATION • • • •
!
• • • • • •
Nature: Continuing Listing: Computerized List at all Levels Number: 200 Voter-Precinct (unless clustered) Biometrics: Mandatory for new; for registered voters, validation Changes: Permanent but subject to changes (+ or -) Addition (+) New Voters Transfer of Residence to Reactivation Inclusion Deletion (-) Cancellation (death) Transfer of Residence from ! ! ! !
•
! !
! ! !
!
!
!
Deactivation Exclusion Annulment of Book of Voters Our system of registration is continuing, you can apply for registration any day, any week day, during office hours but your application is processed quarterly. Right now, COMELEC and clustered precincts. But the unit of voting at present is still 200 voters per precinct. As been upheld by the SC, biometrics is now mandatory. It’s mandatory for new voters and in order for you, if you’re a voter prior to the biometrics system, you must have your biometrics taken otherwise you cannot vote. We call that a procedure to validate your prior registered status. Under the law, the list is permanent subject to addition or deletion. Here are the grounds / instances by which the permanent list, the number will increase or decrease. Cancellation only applies to deceased voters.
SLIDE 18: VOTERS: DEACTIVATION Disqualified to Vote Failed to Vote in 2 preceding elections Registration Excluded by the Court Lose Filipino Citizenship Failure to have biometrics taken (validation) If your name is placed in the deactivated list or any of these grounds, you just have to apply for reactivation then you will be able to vote. If you don’t, then you obviously cannot vote and these are the grounds for deactivation. • • • • •
!
SLIDE 19: VOTERS: OPPOSITION • • • • • • •
What? Applications not yet resolved Where Oppose? Election Registration Board Who may Oppose? Voter, Candidate or Political Party When? Specified Period How Oppose? File Written Opposition/ Challenge Why Oppose? Not Qualified, Fictitious Appearance? Mandatory if application opposed While your activation is pending before the election registration board, your application can be opposed on the ground that you do not possess the qualifications, you are not a real person. Again, you file the opposition before the ERB, not before the municipal / metropolitan courts because in this particular case, your application has not been approved. We call that Opposition to Application. !
!
!
SLIDE 20: VOTERS: INCLUSION / EXCLUSION • • • •
What? Applications already acted upon Where File? MTC (not Comelec), then RTC (not Comelec), then SC (question of law) Grounds? Disapproval or Name Stricken Out (Inclusion); Not Qualified or Voter Not Real (Exclusion) When? Specified Period Once your application has been approved, then you either file for inclusion meaning your application was rejected or removed and you want your name to be included. Grounds for inclusion would be disapproval or your name was stricken out. And the other case would be to file an exclusion case meaning your application was approved and someone wants your name excluded. And for exclusion you are not qualified or you’re a fictitious voter. !
!
!
!
In one case, you were not able to file your registration because you were late for your flight, that is not a ground for inclusion. Again, important would be jurisdiction, MTC then RTC then SC for a pure question of law. Never elevate it to COMELEC because again under the Constitution, COMELEC has no right / authority to resolve matters pertaining to suffrage (ie qualification and disqualification of voters).
SLIDE 21: VOTERS: ANNULMENT OF BOOK OF VOTERS • • • • •
Annul What? Book of Voters per precinct Where File? Comelec When Filed? Normally, after period to file inclusion/ exclusion lapses Who Files? Any Voter, EO or Party What Grounds? (1) Book Prepared Improperly, Preparation Attended with Vice or Fraud, and (2) Book contains Statistically Improbable Data (not qualification of voters) Annul not just the registration of one voter. Here this is a precinct wide annulment of the book of voters. What’s contained in the book? It contains all approved applications forms for registration. We must distinguish that from the computerized list of voters, which is just a list. Annulment of the book of voters annuls the whole book, not on the basis that the voters are disqualified or do not possess all the qualifications, but the only reason by which this is constitutional because the ground for annulment is limited to the procedural aspect of the preparation of the book of voters. 2 grounds: 1) Book prepared improperly or attended by any fraud or vice, or 2) the book contains statistically improbable data. !
!
!
SLIDE 22: VOTERS: ELECTION DAY •
Illegal Voter Not registered; Use another name; Disqualified; Multiple Registrant (allowed to vote if properly identified) Illegal Act Vote-Buying; Vote-Selling; Vote-Betting: Promise to induce or withhold vote (allowed to vote if take oath) Ok so you have remedies 1) pending application, 2) once your application was approved, 3) to annul the book of voters, and 4) on election day. Again, there are two grounds by which you can question a voter: 1) the voter is an illegal voter not registered, multiple registrant, using another name and in that case, the Board of Election Inspectors can still allow you to vote if you show any other identification card or the Board just allows you to vote. In the case of an illegal act vote buying, vote selling, vote betting, promise to induce, you can still be allowed to vote if you take an oath denying the challenge. You take your oath before the Board of Election Inspectors. That challenge and the oath is then recorded in the minutes of the proceedings of that BEI. !
•
!
!
!
SLIDE 23: OFFICIALS: ELECTIVE National Office President; Vice-President; Senators (24; 1/2); Representatives (District and Party-List) Local Office LCE: Regional Governor, Provincial Governor, City or Municipal Mayor and Punong Barangay VLCE: Vice-Governor and Vice-Mayor; Sanggunian Members 2 ways of classifying elective officials: 1) in relation to their offices 2)in relation to their constituency So for example a district representative is a national official but, locally elected. But for a party-list representative national official, nationally elected. In this case, I classified these officials in terms of office and not the manner in which they were elected. •
!
•
! !
!
SLIDE 24: OFFICIALS: QUALIFICATIONS Listing: Set by the Constitution (national) and statutes (local) Citizenship (naturalized elsewhere: oath and renounce 2016) Age Residency (physical presence may be broken, 2016) Registered Voter Literacy Free from Disqualifications [Undertake Drug Test under CDDA OF 2002, unconstitutional] Procedure: Electoral aspect of DQ (administrative proceeding): summary Where do we find the qualifications of our national and elective officials? For national officials, we can find them in the Constitution and Congress cannot add or subtract from this list because the qualifications are exclusive and final. But for local officials we can find them in statutes and Congress can amend the statute and provide for other requirements such as an educational attainment. That’s allowed for a governor but not allowed for a Senator. A foundling is presumed a natural-born. Residency even if you’re not in that place 24/7 it can be unbroken as long as it’s an accumulated period of a year. Then, you are qualified to run for that position. Under the Comprehensive Dangerous Drugs Act there was an additional requirement. All candidates must go through a drug test and must be declared clean, otherwise they are disqualified, the SC declared that unconstitutional explicitly for national positions. If you file a disqualification case before COMELEC then that is summary in nature. Summary in nature does not mean you dispense with due process. So, notice, hearing, opportunity to present your case are essential requirements for due process. • • • • •
!
!
!
!
!
SLIDE 25: SPECIFIC QUALIFICATIONS
SLIDE 26: CANDIDATE: EVOLUTION OF DEFINITION
SLIDE 27: OFFICIALS: CANDIDATE Definition: Seeks public office and files certificate of candidacy and campaign period has started Nature of CoC: announce and declare eligible (2016); if CoC void, candidate not considered a candidate even if cancelled after elections (2016) Ministerial Duty: If filed in due form, ministerial duty to receive COC; Comelec may look into patent defects (appearing on the face) of CoCs Effect of Non-Filing: Not a candidate (not liable for unlawful acts and omissions before becoming a candidate; before start of campaign period) Effect of Filing: On Tenure of Incumbents (elective – remain in office; appointive – ipso facto resigned) Once upon a time a person becomes a candidate upon the filing of a certificate of candidacy. That has changed because under the automated election law, a person only becomes a candidate not upon filing (but obviously you have to file your COC), but you’re only a candidate at the start of the campaign period. So in our automated election system you file your COC on December prior to election year. You have three months or two months after you file your COC where you’re not considered a candidate, because you’re only considered a candidate either 60 days (nationally elected officials) 45 days (locally elected officials) prior to election day. During that period wherein you file your COC and the campaign has not started. According to the Automated Election Law, 1 you’re not a candidate and 2 unlawful acts and omissions are only reckoned from the start of the campaign period. So there’s no such thing as vote-buying, no such thing as premature campaigning. You don’t even have to count how much you spent. You don’t need to follow the P10 P5 P3 prior to the campaign period. Notwithstanding the fact that you have already filed your COC. Why? Because you’re not a candidate. If your COC is declared void you were never a candidate. • •
•
•
•
!
!
!
!
Even if you garnered the plurality of votes, all those votes will be considered void, and effectively the 2nd place is the 1st placer. Can COMELEC not accept a CoC? No. The acceptance is ministerial. However, COMELEC, in the exercise of its discretionary powers may disqualify a candidate depending on the ground. SLIDE 28: INCUMBENTS: ADVANTAGES 1. Elective officials not considered resigned regardless of elective position sought (appointive officials considered ipso facto resigned upon filing of certificate of candidacy) 2. Electioneering does not extend to acts of governance, provided no intention to campaign for or against a candidate (not all acts of beneficence is considered campaigning) 3. News about incumbents not considered campaigning, thus, not covered in caps on campaign media exposure 4. Governance collaterals and announcements may not be required to be removed since not considered campaigning without intent to campaign 5. Rules of Appreciations favor incumbents (no longer applicable in an automated election where names are printed on ballots) Once upon a time, all elective officials who will file for a CoC for an elective position, except for President and Vice President, are considered resigned upon the filing. For appointive officials, upon filing a CoC, you are considered ipso facto resigned. Under the Fair Election Act (FEA), we have different rules. Depending whether you’re appointive or elective. For appointive – the rule is the same. Considered ipso facto resigned upon filing CoC. (not at the start of campaign period) For elective – whether higher, lower or same office, you are not considered resigned. Because that provision in the OEC, which considered these people resigned, has been expressly repealed by the FEA. !
!
!
!
!
SLIDE 29: INCUMBENTS: OFFENSES Vote-buying Coercion of subordinates Appointment of new employees, creation of new positions, promotions, or gives salary increases Transfer of officers and employees in the civil service Intervention of public officers and employees Undue influence Appointment or use of special policemen, special agents, confidential agents or the like Illegal release of prisoners before and after election Use of public funds, money deposited in trust, equipment, facilities owned or controlled by the government for an election campaign Use of armoured land, water or air craft Use of Policemen and provincial guards acting as bodyguards or security guards Release, disbursement or expenditure of public funds Construction of public works, delivery of materials for public works and issuance of treasury warrants and similar devices Suspension of elective provincial, city, municipal or barangay officer • • • • • • • • •
• • • •
•
SLIDE 30: OFFICIALS: SUBSTITUTION •
• • •
Grounds: (1) Death, (2) Withdrawal, and (3) Disqualification (not allowed: (a) if violate term limit; (b) not meet residency requirement; (c) CoC denied due course or cancelled – (c.1) nuisance and (c.2) material misrepresentation); if invalid substitution – not considered a candidate Who? Substitute must be Qualified When? Up to mid-day of election day (if withdrawal, on or before December 10, 2015) Substitute? Qualified (not disqualified) and Same Party
•
Limitations: Substituted candidate can still run for other elective positions; Withdrawal not affect liabilities 1) Death -can still be substituted until 12 noon of election day. 2) Withdrawal -because we’re under an automated system, you must withdraw and can be substituted. COMELEC sets a deadline normally December of the year preceding the election 3) Disqualification -once upon a time, if you’re disqualified, you can be substituted regardless of the ground. Now because of several cases, we have to distinguish: if you violate the term limit, if you do not meet the residency requirement, if your CoC is denied due course because you are a nuisance candidate, committed material misrepresentation - you cannot be substituted. There’s only one type of candidate who can be substituted even if you’re disqualified ! commission of an election offense Why the distinction? Because in 1), you were never qualified in the first place, you were never eligible in the first place. But if you commit an election offense, you possess all the qualifications, but you committed something bad and you got caught. There’s only one ground: Commission of ANY Election Offense !
!
!
!
SLIDE 31: OFFICIALS: DISQUALIFICATIONS •
• • • • • • • •
Purpose of DQ: prevent candidate from running, or if elected, from serving; DQ distinct from administrative case (2016) Lack qualifications/ possess some disqualifications Violate Term Rule (1-2-3 terms) Commission of an election offense Nuisance Candidate Sentenced by Final Judgment (accessory penalty) Willfully Commits Material Misrepresentation No valid, timely and properly filed certificate of candidacy Grounds under the 1991 LGC, for local elective officials
SLIDE 32-36: OFFICIALS: DISQUALIFICATIONS Lack of Qualifications Pleading? Petition to Disqualify a Candidate Grounds? Constitution or Statutes; for local officials under OEC and LGC (e.g. fugitives) (2016) Where File? Comelec Division When File? Before Proclamation Process? Summary, Due Process, requires a complaint/petition; not motu propio unless there is final judgment If Not File? Quo Warranto Commission of Election Offenses Pleading? Petition to Disqualify a Candidate What Offenses? Vote-Buying, Terrorism, Unlawful Expenditures, Unlawful Campaign, Coercion of Subordinates, Threats, Prohibition against Release of Public Funds (other election offenses – file EO case – RTC hears) Where File? Comelec Division When File? Before Proclamation If Not File? Election Protest; Election Offense Nuisance Candidate Petition? Petition to Declare a Candidate a Nuisance Candidate Who Is? Campaign Capability, Intention, Performance, Exposure, Platform, Party Affiliation, Organization, Profession, Income, Health, Education, Name Where File? Comelec Division • • • • •
•
• •
• • •
• •
•
When File? Within 5 days from Last Day Filing of Certificate of Candidacy If Not File? No remedy Misrepresentation Pleading? Petition to Deny Due Course to or Cancel a Certificate of Candidacy What? Misrepresentation must be Material (pertains to Qualifications and Disqualifications, also as to permanent residency (2016); foundling presumed natural-born unless proven otherwise (2016); not surname, profession, political party) and Willful/ Deliberate; Even if there is ‘misrepresentation,“ if actually qualified, should not be disqualified Where File? Comelec Division When File? 25 days from Filing of CoC If Not File? Quo Warranto • •
• •
• • •
SLIDE 37-38: COMPARE AND CONTRAST
!
!
!
!
If you do not possess the qualifications, what prevails? The fact that you are qualified or the entries in your CoC? What is important is that you are actually qualified. Even if you make wrong entries that will show otherwise in your CoC. If you do not possess any of the qualifications, then you file a Petition to Disqualify before the COMELEC Division because this is judicial. You can file it any time before proclamation and it is summary in nature. Assuming you were unable to find any case prior to proclamation, you still have a remedy. But this time, you’re now proclaimed– a voter can file a Quo Warranto case. There are two subsets of election offenses, and not all of these offenses can be a ground for a petition to disqualify a candidate, cognizable by the Comelec Division: a. All election offenses – a hundred or more election offenses enumerated in the Omnibus Election Code and other statutes. An election offense case may be filed either before the (a) law department of Comelec, or (b) before the prosecutor’s office. b. Election offenses enumerated under Sec. 68 of the OEC – the petitioner has two options: 1. To file a disqualification case before the Comelec Division, which shall be summary in nature; or 2. To file an election offense case, either before the (a) law department of Comelec, or (b) before the prosecutor’s office, which shall involve a full-blown trial before the Regional Trial Court. Examples: 1. Vote buying. What are the options? Either file a petition to disqualify before the Comelec Division, and/or file an election offense case before the fiscals office or Comelec law department 2. A candidate, who is the incumbent city mayor, uses the city vehicle for campaign. What are the options? It is an election offense, but not one enumerated under Sec 68 of the OEC. There’s only one remedyfile an election offense case.
!
!
!
!
!
!
For the Commission on Election offenses, it can be filed anytime before proclamation. But for an election offense case, the prescriptive period is 5 years. A nuisance candidate is any person who has no bona-fide intention to run for office. However there are nuisance candidates who win. The prescriptive period to file a case against a nuisance candidate is just 5 days from the last day of the filing of the COC. Elements of misrepresentation: a. Material b. Deliberate or wilful; and c. The person is not actually qualified. So even if the misrepresentation was material and deliberate, but the candidate is actually qualified, the case should be dismissed. Material pertains to the qualifications, i.e. age, residency, literacy, citizenship. Even if you misrepresent by using a surname of a different person, different profession, declaring you are a member of a political party, when you’re actually not – misrepresentations which may make one liable for falsification, these would not be material for a candidate to be disqualified. But that same person can be disqualified, once convicted for falsification. Conviction for falsification carries with it the accessory penalty of deprivation of political rights. The prescriptive period is 25 days from the filing of that particular COC. If you knew that you were convicted of libel, which is a crime involving moral turpitude, you can be disqualified on the ground of material misrepresentation (2016 case) Pay particular attention to what is the appropriate caption, what are the grounds, where to file COMELEC division, when to file is also important, who can file, what if you were not able to file, can you still file after proclamation, and can you be substituted. Again, there is only one ground where a candidate who has been disqualified can be substituted that would be for commission an election offense
SLIDE 39: EFFECT OF DQ Succession or Special Elections Commission of an election offense nd “2 Placer” Violation of 3-term limit Not a voter (inclusion denied with finality) Conviction of criminal offense involving moral turpitude Not a Filipino citizen Dual Citizen (2016) Final decision on DQ before elections What if you are disqualified after proclamation? For local officials and even for the president you follow the rule on succession For senators and representatives, they must call a special election Therefore, when Governor Ejercito was disqualified after proclamation on the ground of an election offense, who became the governor? Not the 2 nd placer but the vice governor But if governor ER was disqualified on the ground that he was not qualified such as nuisance, material misrep, violation of the term limit, then who will become the governor? Not the vice governor but the 2 nd placer. Because the votes of gov ER will be considered void. And the 2 nd placer will be the first placer. •
• • • • • •
!
!
!
SLIDE 40: CAMPAIGN: CONCEPT •
Definition: Act designed to promote the election or defeat of a candidate; satire of political parties on social issues not election propaganda (2016)
•
• •
Operative Act: Intent/ Design material (not all acts of beneficence are considered campaigning) and Period (start of campaign) Application: All Candidates for All Elective Offices Framework: Regulated but Liberalized Critical, essential would be the intention. The intent must be to promote the election or the defeat of a candidate. Why is intention relevant? Because if your intention is not for a particular candidate but to advocate a particular issue even if it involves several candidates, like what happened in the Diocese of Bacolod Case, that will not be considered campaigning. Therefore the rules on campaigning will not be applicable. And intent must also be relevant when you give out things of value, objects of value. Because if your intention is not to campaign but its part of governance like what happened to the distribution of basketballs bearing the name of the mayor during summer time which is campaign period, it is not campaigning. !
!
!
SLIDE 41: CAMPAIGN: ALLOWABLE FORMS Forming Organizations Holding Rallies Making Speeches Distributing Campaign Materials Soliciting Votes Publishing Advertisements Before ballpens, billboards were prohibited. But that prohibition was repealed expressly by the Fair Elections Act • • • •
!
SLIDE 42: CAMPAIGN: PROPAGANDA Paid Political Advertisements Free Space and Airtime Use of Gadgets and Billboards Private Poster Areas Posting in Private Places, PUVs and terminals Can you post in public places? No, except in COMELEC poster areas. But only posters. In private places, and even in public utility vehicles as upheld in a recent case, as long as there is a written consent from the owner- you can display posters not streamers, or you can even display letters. Because when you talk about letters walang required dimensions. • • • • •
!
!
SLIDE 43: CAMPAIGN: FORMS Printed Materials (8.5”W x 14”L) Letters Posters (2’x 3’) in Poster Areas (12’x 16’) Rally Streamers (3’x 8’) • • • •
SLIDE 44: CAMPAIGN: PAID ADS Print: 1/4th page in broadsheet; ! in tabloid 3x a week Television: 120 minutes (for national); 60 minutes (for local) per station Radio: 180 minutes (for national); 90 minutes (for local) For media, again we have no rule now or regulation or law pertaining to social media. Right now, trimedia lang ang may law. Print, television, which is per station, and radio which is also per station. • • •
!
SLIDE 45: CAMPAIGN: UNLAWFUL ACTS Foreign Intervention Removal or Destruction of Lawful Propaganda • •
• • • •
Materials not Disclose Payor Exceed Limits (Time and Space) Transportation, Foods and Drinks During Rallies Movie or Video of or by Candidate Here are some of the unlawful acts. Well some of these are practiced and breached. Like bawal ang food and drinks. 5 hours before and 5 hours after. So if you’re a candidate, what would you do? Give it 6 hours before. Or befriend the COMELEC official. If you’re a celebrity, TV personality, you can no longer appear on tv during the campaign period. !
SLIDE 46: PROHIBITED CONTRIBUTIONS • • • • • • • • • •
All SEC-registered corporations Financing Institutions Public Utility Operator Natural Resources Explorer Government Contractors Franchise Holders Donee Institution from Government (P100,000) Donee Educational Institutions (P100,000) Foreigners/ Foreign Corporations Civil Servants and AFP !
There are certain persons, juridical persons, that are not allowed to contribute. And there are certain natural persons which cannot also contribute: namely foreigners, civil servants, including the PNP and Armed Forces of the Philippines. For the rest, these are juridical persons and the prohibition does not extend to their officers.
SLIDE 47: OTHER PROHIBITED ACTS • • • • •
Not reveal true name of contributor Not report all contributions Exceed Limits (P10, P5, P3) Not file Statement Expenditures made by non-authorized persons These are the other prohibited acts. P10 will pertain to President, Vice president. If you’re a member of a party, and supported by that party, it’s P3. If you’re an independent candidate, or a member of a party but that party does not have any resources, then that would be P5. !
SLIDE 48: LAWFUL EXPENDITURES • • • • • • •
!
Use of Facilities Advertisements Travel Meetings/ Rallies Compensation Counsel* Communications Copying of List of Voters* Written Materials Sample Ballots* Pollwatchers Volunteers (* not included in cap) Office/ HQ Not all expenditures are covered by the 10-5-3 pesos cap. Look at the expenditures, items, with an asterisk. For lawyers, copying or sorting of the list of voters, sample ballots, are not covered in the 105-3. • • • • • •
SLIDE 49: POSTPONEMENT OF ELECTIONS •
•
Grounds: (1) Force majeure, (2) Violence, (3) Terrorism, (4) Loss or Destruction of Election Paraphernalia, and (5) Analogous Causes Extent: Serious and Impossible to have free and orderly elections
• • •
Conditions: Grounds must exist before end of voting/transmission Authority: Comelec en banc (petition or motu propio); not BEI or election officers Result: Special Elections within 30 days from cessation When you want to question the integrity of the process, you have two types of cases: postpone the elections or declare a failure of elections. The grounds are not exclusive, because of the phrase, “analogous causes”. But as we know in ejusdem generis, the causes must be similar, or analogous to, the enumeration. What would be the extent of these grounds? It must be serious and impossible to have voted. The grounds must exist prior to close of election day. Only the COMELEC en banc can postpone. An election officer cannot postpone. Effect? You postpone the election to a later date, which may be beyond 30 days, for as long as the cause is still present. !
!
SLIDE 50: FAILURE OF ELECTIONS Grounds: (1) Force majeure, (2) Violence, (3) Terrorism, (4) Fraud, and (5) Analogous Causes Extent: Failure to elect and affect results of elections; relates to entire elections (2016) Examples: Failure - transfer of venue of counting without notice, ballots replaced/ burned; No Failure – voting resumes after sporadic violence/ gun fire, fake ballots, landslide results, vote-buying, destruction of copies of ERs; convincing evidence showing will of people muted by causes (2016) Conditions: Election not held or suspended, After voting, During preparations or transmission of election returns, Canvassing Authority: Comelec en banc (petition) Result: Special Elections within 30 days from cessation (objective of declaration, 2016) For failure, the grounds again are not exclusive. The extent must be- you don’t know who won. According to the SC there must be convincing evidence showing the will of the people was muted by these causes. Again in any failure of election case, there must be some mathematical assumptions. Because you must be able to show without the cause of the failure, you won. And therefore, you must show some numbers. The violence affected 10 people, and the margin of the other candidates is just 5. For postponement, it can be done motu proprio by COMELEC. But for failure, there must always be a verified petition. • • •
• • • •
!
!
SLIDE 51: COMPARE AND CONTRAST
SLIDE 52-62: AUTOMATED ELECTIONS • •
Statutory Bases: RA 9369 amending RA 8436 Automated Election System: voting, counting, consolidating, canvassing, and transmission (not proclamation) Automated elections, unfortunately, for barangay, it will be manual. You can automate the whole process except proclamation. COMELEC can adopt several systems in a given elections. Paper-Based or Direct Recording Election System : Ballots, Election Returns, Certificate of Canvass, Statement of Votes Comelec Discretion: AES or AESs, Paper- Based or Direct Recording Features: Use of Ballots, Stand-alone machine, with Audit Trails, Minimum Human Intervention and Security Measures Right now, there must be paper ballots. Hopefully in the future, no more paper ballots, but that would need a higher trust level. Processes: Casting, Counting and Transmission at Precinct Level Consolidation and Proclamation at Canvassing Levels Precinct-Level Result: Printing of Elections Returns (30 copies) then Electronic Transmission to Board of Canvassers; Results loaded in Data Storage Devices Again, at the precinct-level, the ballot is the best evidence of the vote of one person. The election return is the evidence of votes in one precinct. A Certificate of Canvass would be the evidence of votes at the higher level. The Statement of Votes is the breakdown at that higher level. A certificate of votes would be either you prepare that form or it’s a limited number of forms for COMELEC. Right now, people don’t really use the certificate of votes because you can photocopy the printed election returns or a certificate of canvass. From the precinct to the next level and to the higher level, the results are transmitted electronically for our automated election. But for the barangay elections, they will be transmitted physically or manually. What would be the basis of the proclamation would be what is electronically transmitted not the printed copies of the printed returns. If its not a complete transmission and the Board has the option to lower the threshold to 90%. It can also require the BEI to submit to it the storage device, the SD card. There are 2 SD cards used in the elections: one, which remains in the machine up to today, and the other one is the SD card transmitted manually/physically to the next level of the board of canvassers. By the way, from the city to the provincial board, it is no longer an SD card. It’s a CD. So when it comes to the provincial board, CD reader. Canvassing at BoC: Consolidation of Results in Data Storage Devices then Electronic Transmission to Comelec (Senate and Party-List) and Congress (President and Vice-President) and Proclamation Up to today, only Congress can look into the authenticity and due execution of what was transmitted. Again, if you compare the canvassing before congress, the members of Congress do not look into computer screens. They go over printed Certificates of Canvass. Hence, they can go into the due execution and authenticity of these printed documents. But if you look at the canvassing from the other levels of canvassing, the board will just look at computer screens. Again, as I have told you in class, it’s either red, yellow or green. Preliminaries: 6:00 to 7:00 a.m. 1) BEI sets up Polling Place 2) Pollwatchers present credentials to BEI 3) BEI posts Precinct Certified Voters List (PCVL) 4) BEI shows sealed Vote Counting Machine (VCM) and empty Ballot Box to public 5) BEI turns on Vote Counting Machine (VCM) and logs in B. Voting Proper: 7:00 a.m. to 5:00 p.m. 1) Voters vote in the order of arrival !
•
• •
!
•
! !
•
!
!
!
•
!
•
•
2) 3) 4) 5) 6)
Voter approaches BEI BEI verifies Voter identity BEI checks if fingers unstained with Indelible Ink (if stained, cannot vote) BEI announces name of Voter If no challenge or challenged dismissed, Voter signs in Election Day Computerized Voters List (EDCVL) 7) BEI Chair: a. Signs Ballot in space provided b. Gives Ballot inside Secrecy Folder and Marking Pen to voter 8) Voter votes by shading circles 9) Voter inserts Ballot in the VCM 10) Ballot is accepted or rejected (given another Ballot): a. Misread Ballot (re-fed in 4 different orientations) b. Previously Read Ballot (diverted to Bin for Rejected Ballot) c. Invalid Ballot You can only be given another ballot, just one, on any of these grounds: a) misread b) previously read c) invalid ballot. Or if it’s a spoiled ballot, meaning, you accidentally tear the ballot. If the tearing is intentional, and someone saw it, you cannot be given another ballot. 11) BEI applies Indelible Ink Why stain your forefinger? Because that will be an evidence that you already casted you vote. 12) Voter gets voter receipt After you vote, you’re given a receipt, and you deposit your receipt in a box. You don’t bring home the receipt, because normally that receipt will be the evidence that you will use for the consideration given you if there was vote-buying. 13) Voter returns Secrecy Folder and Marking Pen 14) Voter departs 15) Illiterates and Persons with Disability can be assisted by relative within 4th degree, person of confidence or BEI Can there be proxy voters? Yes for illiterate, disabled voters. And that [they require proxy] must be reflected in the application form of that voter, so that that voter will accompany the disabled voter. And who can be the proxy voter? It can either be: 1. a relative, however that relative can only accompany [maximum] 3 disabled voters; or 2. any member of the Board of Election Inspectors, and there is no limit as to the number of disabled voters the BEI can assist. 16) No premature announcement of status of voting before close of polls Prior to the close of the polls, there should not be any pre-mature announcement. 12 noon the board cannot say, Agra has not voted. C. Closing of Polls: 5:00 p.m. up 1) If there are Voters within 30-meter radius, they will be allowed to vote (must fall in line, fill-up sheet and called) Can you still vote after 5:00pm? IT DEPENDS. If you are there at 5:00pm, within a 30meter radius, and you fall in line and fill up a form, and when you are called you are still there, you can still vote. 2) BEI prints 8 copies of National Election Returns (NERs) and 8 copies of Local Election Returns (LERs) 3) VCM transmits results to: a. Comelec b. Transparency Server (KBP) c. City/ Municipal Board of Canvassers (C/ M BoC) 4) VCM prints 22 copies of NERs and 22 copies of LERs !
!
!
!
!
•
!
5) BEI signs all ERs and affixes thumbmarks and places 8 NERs and 8 LERs inside Envelopes 6) Distribute all 30 NERs and 30 LERs (Next/ Higher Level of Canvassing, National and Local Political Parties, Media, Citizens’ Arm, Ballot Box, Posted on Wall) 7) BEI shall post 1 copy of ER in a conspicuous place inside polling place 8) VCM prints Statistical and Audit Reports 9) Unused Ballots shall be disposed (torn lengthwise and placed in Envelopes) 10) BEI removes SD card (Slot A) and place inside Envelope (SD is Slot B not removed) 11) VCM shall be turned over to Logistics Provider or Election Officer 12) Deliver Ballot Box to the Local Treasurer Local treasurers are important during election. If you visit your municipal hall, or city hall, you will see the ballot boxes at office of treasurer. The treasurers are the custodians of all ballot boxes. Are police officers allowed inside the polling place? No, ONLY if: 1. To vote 2. When there is actual violence a. If there is only a threat of violence, they can be called to station at the door b. But, if threat they cannot go inside (door lang) !
!
SLIDE 63: PRE-PROCLAMATION CASES • •
•
Aspects: BoC-related and Results-related Allowed: Objections pertaining to Proceedings and Composition of BoC; Pollwatchers-related; DataStorage Delayed, Destroyed, Falsified (before canvass) Not Expressly Allowed: Material Defects, Manifest Errors, Omission, Discrepancy (not allowed under Comelec Resolution) Rules of Appreciation; Violence; Voting Procedure; Eligibility of Voters (whether manual or AES) For Pre-proclamation cases: (there are 2 branches) 1. Related to the Board of Canvasser - you question their composition (ex. they should not be related to each other, or to any candidate) 2. Regard to their Proceeding - the other cluster of grounds would pertain to the results If you want to question proceedings or composition of the board either file it with the board or the comelec division, they have concurrent jurisdiction. But if you want to question the results. You can only question it at the first instance before the board. I supposed theoretically you can go to the comelec division, but you must be able to justify non-exhaustion. Comelec in the previous automated elections have declared in relevant resolutions, that there is no preproclamation in relation to results in an automated election system. They have confined a preproclamation, insofar as composition and proceedings. But for me, theoretically, there can be irregularities in the canvassing, or even transmission of results. But if you are the Board of canvassers and there is a pre-proclamation on the matter of the results because they are under the control and supervision of the comelec. They must follow comelec and dismiss your pre-proclamation complaint. Whether it is automated or manual, rules of appreciation, violence, irregularities in the voting procedure, presence of ghost voters are not allowed in pre-proclamation cases. Why? Because of the Issue of Evidence: When you talk about a pre-proclamation case, we just look at documents (e.g. the election return or certificate of canvass). Because for these grounds, in order to prove that these grounds existed, evidence aliunde must be presented, or testimonial evidence must be presented. And, for preproclamation this cannot be presented because for proclamation and canvassing, it must be summary and expeditious. ! !
!
!
!
SLIDE 64: POST-PROCLAMATION: ELECTION PROTESTS • •
Grounds: Fraud and Irregularities in Casting, Counting and Canvassing Documents in Question/ Evidence: Ballots, ERs, CoCs and Data-Storage Devices
•
•
• •
Venue: P/VP (PET); Senators (SET); Representatives (HRET); Regional; Province; City (Comelec Division); Municipality (RTC); Barangay (MTC) Requirements: Filed by candidate; Within period; Protestee proclaimed; Payment of filing fee; Allegations of fraud; Identify precincts; Verified; Certificate of non- forum shopping Procedure: Revision; Trial If prosper: protestee removed, true winner proclaimed Election Protest is also known as election contest. One type of election contest is election protest. Another is Quo Warranto Case. For Election protest, any irregularity [can be a ground]. The best evidence will depend on the ground. If you want to question the integrity of the votes at the VOTER level, then the best evidence would be the ballots. But if your ground is subtraction, addition and consolidation at the PROVINCIAL level, then the best evidence would NOT be the ballots; rather, the best evidence would be the certificates of canvass at the lower level. Why will a candidate file a protest? Because that candidate believes that he/she won. And therefore, the protestee must be ousted or removed from office. And hopefully the one who made that protest will be declared the winner; because that is not the case in all instances. !
!
!
!
SLIDE 65: POST-PROCLAMATION: QUO WARRANTO • • •
Grounds: Disloyalty to Republic; Ineligibility Venue: Same as Election Protest If prosper: Respondent ousted; special elections or succession For quo warranto, there are two grounds: (1) disloyalty to the Republic; and (2) in disqualification cases, a lack of eligibility. So quo warranto is effectively a disqualification case POST-proclamation. However, in this case, the one who filed the case will not become the governor or the mayor. It will either be: (1) a special election (if it’s for Senate or House of Reps); or (2) succession (for President, VP and local officials). !
SLIDE 66: POST-PROCLAMATION: ANNULMENT OF PROCLAMATION • • • •
Grounds: Proclamation based on irregular and illegal canvass Period to File: 10 days from proclamation Venue: Comelec Division Effect: Proclamation annulled; re-canvass If you want to question the manner of the proclamation, your immediate remedy is not an election protest (although you could file that). Your remedy would be to annul the proclamation. !
SLIDE 67-68: ELECTION OFFENSES
SLIDE 69: CASES PER CATEGORY Categories
Electorate
Candidate Election Integrity Pre-Proclamation Election Protests / Post-Proclamation Election Offenses !
Specific Cases Objection on Application for Registration Inclusion and Exclusion Annulment of Book of Voters Challenge on Election Dat Disqualification Quo Warranto Postponement of Elections Failure of Elections BoC-related Consolidated Results-related Annulment of Proclamation Election Protest Quo Warranto Against Candidates Against Non-Candidates and Voters
I have not done the multiple choice for dispute resolution. If I were to include in the choices, these would be the choices: If it’s ELECTORATE related " Then you could file an objection (pending approval or rejection). # Once the application for objection has been approved or disapproved, you could file for # inclusion/exclusion. You can file an annulment of the whole book; or # You can even challenge on election day. # So those are already 4 options. " Pertaining to the CANDIDATE " BEFORE proclamation, you can have a disqualification case; # AFTER proclamation, a quo warranto. # So you have 6 options. " You question the INTEGRITY: " Postponement; or # Failure. # Then you have 8 options. " PRE-PROCLAMATION CONTROVERSY, you have 2. " But according to COMELEC, only 1. # But for barangay, there will be 2. # So you have 10 options. " POST-PROCLAMATION " Annulment; # Protest; and # Quo Warranto. # That’s 13 options. " And ELECTION OFFENSES " Against candidates; # For other persons not candidates. # So, there could be 15 choices in your multiple choice. "
And there could be another set of choices: What is the caption? " What is the period? " Where do you file it? " So in one number, there could be five answers.
SLIDE 70-73: DISPUTE RESOLUTION
