Election Law

Election Law Chapter One:

GENERAL PRINCIPLES THEORY OF POPULAR SOVEREIGNTY 

Sec 1, Art 2 of the Philippine Constitution: “The Philippines is a democratic and republican state. Sovereignty resides in the people and all the government authority emanates from them.”

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Theoretically, the people combined represent the sovereign power of the State. In practice, however, sovereignty is exercised by the electorate and those chosen by them.

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Republicanism in so far as it implies the adoption of a representative type of government necessarily points out to the enfranchised citizens as the ultimate source of established authority.

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A democratic and a republican government derive all its powers, indirectly or directly from the people at large. Its essence is indirect rule.

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Actual sovereignty – exercised by the people by means of suffrage

Suffrage – the right and the obligation of qualified citizens to vote in the election of certain national and local officers of the government and in the decision of public questions submitted to the people NATURE OF SUFFRAGE 1. not a natural right but merely a privilege given or withheld by the lawmaking power subject to the Constitutional limitations - granted upon the fulfillment of certain minimum conditions deemed essential for the welfare of society - not a necessary accompaniment of citizenship 2. not absolute - nevertheless, only the serious grounds and upon clear and convincing proof may a citizen be deemed to have forfeited his right of suffrage Election Law Reviewer (2012)

3. as a right conferred by the Constitution, it is classified as a political right as well as a bounden duty of every citizen - enables him to participate in the process of the government to assure that it truly derives powers solely on the consent of the governed - principle: one man, one vote 4. based upon the theory that the people who bear the burden of the government should share in the privilege of choosing the officials of the government - one man one vote 5. as a duty it is in the nature of public trust - should be exercised in good faith and with intelligent zeal for the general benefit and welfare of the State SCOPE OF SUFFRAGE 1. Election – the means by which the people choose their officials for definite and fixed periods and to whom they entrust, for the time being as their representatives, the exercise of powers of the government. o Involves the selection or choice of a candidate by popular vote o “conduct of the polls” 2. Plebiscite – a vote of the people expressing their choice for or against a proposed law or enactment submitted to them o In the Philippines: it is applied to an election at which any proposed amendment to, or revision of, the Constitution is submitted to the people for ratification o It is also required by the Constitution to secure the approval of the people directly affected, before certain proposed affecting LGUs may be affected 3. Referendum – submission of a law passed by the national or local legislative body to the registered voters at an election called for the purpose of their ratification or rejection o Mode for appealing from an elected body to the whole body of voters 4. Initiative – process whereby the registered voters directly propose, enact or amend laws, national or local, through an election called for that purpose o Congress is mandated by the Constitution to provide a system of initiative and referendum which have been declared as the “people power” feature of the Constitution

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o Amendments to the Constitution may be proposed through an initiative

3. must be a Filipino citizen

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5. Recall – method by which a public officer may be removed from office during his tenure or before the expiration of his term by a vote of the people after registration of a petition signed by a required percentage of the qualified votes OBJECT OF SUFFRAGE 

Main Object: continuity of government and the preservation of its benefits

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Two-Fold Object: (1) enable the people to choose their representatives to discharge sovereign functions ( through elections) (2) determine their will upon such questions submitted to them (through a plebiscite, referendum, initiative or recall)

*Election laws regulate how the right of suffrage is to be exercised **In case of doubt, political laws must be so construed as to give life and spirit to the popular mandate freely expressed through the ballot POWER OF CONGRESS TO REGULATE SUFFRAGE 

Congress can regulate the right of suffrage since it is not a natural right but a political right. It is within the power of the State to prescribe the manner in which the right shall be exercised.

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Subject to constitutional restrictions, Congress has the power to: o define qualifications of voters o regulate elections o prescribe form of official ballot o provide for the manner in which candidates shall be chosen and the names that shall be printed upon the ballot o regulate the manner and conduct of elections o exercise of police power

CONSTITUTIONAL PROVISIONS ON SUFFRAGE ARTICLE V, Section 1 (Qualifications of voters) 1. must not be disqualified by any law 2. at least 18 years of age on the date of the election Election Law Reviewer (2012)

RA 9225 (Citizenship Retention and Reacquisition Act of 2003 / Dual Citizenship Law) This declares that the former natural-born Filipino citizens who acquired foreign citizenship through naturalization are deemed not to have lost their Philippine citizenship under the conditions provided in the Act. Former Filipinos may reacquire and retain their Philippine citizenship by taking the oath of allegiance to the Republic of the Philippines. How can one reacquire citizenship under this Act? As Section 3 of the Act provides, any provision of law to the contrary notwithstanding, natural-born citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the oath of allegiance to the Republic of the Philippines Natural born citizens of the Philippines who, after the effectivity of this Act, become citizens of a forign country shall retain their Philippine citizenship upon taking the aforesaid oath. Can children of those who reacquired Filipino citizenship also become Filipino citizens under this Act? According to Section 4 of this Act, the unmarried child, whether legitimate, illegitimate or adopted, below 18 years of age who reacquire Philippine citizenship upon effectivity of this Act shall be deemed citizens of the Philippines What are the effects of this Act on civil and political rights? According to Section 5, those who retain or reacquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines under the following conditions: 1. Those intending to exercise their right of suffrage must meet the requirements under Sec 1 Art 5 of the Constitutions, RA 9189, and other existing laws 2. Those seeking elective public office in the Philippines shall meet the qualification for holding such public office and required by the Constitution and existing laws and, at the time of filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath 3. Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office; Provided, that they renounce their oath of allegiance to the country where they took that oath 4. Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice; and 5. That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to those who: 2

4. resided: a. in the Philippines for at least one year; and b. in the place wherein they propose to vote for at least 6 months immediately preceding the election 5. no literacy, property, or other substantive requirement may be imposed *detention prisoners (those that are not yet convicted and disqualified under any law) are not explicitly disqualified to vote but they can only vote if COMELEC will held elections / provide voting facilities inside the detention facility

3. procedure for the disabled and illiterate to vote without the assistance of other persons SUBSTANTIVE REQUIREMENTS FOR THE EXERCISE OF THE RIGHT OF SUFFRAGE 1. Literacy – was removed by the 1973 Constitution *A Filipino does not cease to be a Filipino just because he is illiterate

**Congress cannot add or alter such qualifications; the specification in the Constitution is an implied prohibition against interference 2.

***Congress may add disqualifications (by law) 3.

ARTICLE V, Sec 2 – Congress shall provide a: 1. system for securing the secrecy and sanctity of the ballots 2. system for absentee voting for qualified Filipinos 2 a. RA 9189 (Absentee Voting Act of 2003) – Absentee voters may vote for president, vice-president, senators, and party-list representatives only) 4. a) b)

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Are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or They are in active service as commissioned or noncommissioned officers in the armed forces of the country which they are naturalized citizens

SUMMARY of RA 8189 (The Overseas Absentee Voting Act of 2003) o This law ensures equal opportunity to all qualified citizens of the Philippines abroad in the exercise of their right to participate in the election of President, VicePresident, Senators, and Party-list Representatives

Absentee voting o refers to the process by which qualified citizens of the Philippines abroad exercise their right to vote

Who are covered? o All citizen of the Philippines abroad, who are not otherwise disqualified by law, at least 18 years of age on the day of the elections. Who are disqualified? 1. Those who have lost their Filipino citizenship in accordance with Philippine laws Election Law Reviewer (2012)

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Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country Those who have committed and are convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not less than 1 year, including those who have been found guilty of Disloyalty as defined under Art. 137 of the RPC, such disability not having been removed by plenary pardon or amnesty; Provided that the person disqualified according to this shall automatically reacquire the right to vote upon the expiration of 5 years after service of sentence; provided, further, that COMELEC may take cognizance of final judgments issued by foreign courts of tribunals only on the basis of reciprocity and subject to the formalities and processes prescribed by the Rules of Court on execution of judgments An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by COMELEC declaring that he/she shall resume actual physical permanent residence in the Philippines not later than 3 years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be the cause for the removal of the name of the immigrant or permanent resident from the National Registry of the Absentee Voters and his/her permanent disqualification to vote in absentia Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority in the Philippines or abroad, as verified by the Philippines embassies, consulates or foreign service establishments concerned, unless such competent authority subsequently certifies that such person is no longer insane or incompetent

How may a Filipino citizen become a registered overseas absentee voter? o Filipino citizens abroad or Filipino citizens in the Philippines who will be abroad on Election Day may become registered overseas absentee voters by filing an application for registration or certification as overseas absentee voters Is a registered overseas absentee voter automatically entitled to vote? o No, a registered overseas absentee voter must have an approved application to vote in absentia to be entitled to vote

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2. Property – under the 1987 Constitution, Congress cannot impose property requirement (a) property ownership NOT a test of an individual capacity - the ownership of property neither adds nor detracts from a man‟s capacity to function fully and properly as a political being (b) property requirement inconsistent with concept of republican government – presupposes equal opportunity (c) property requirement inconsistent with social justice 3. Other Substantive Requirements – Congress is prohibited by the Constitution to impose additional substantive requirements for voting like education, sex and taxpaying ability. (but Congress may add procedural requirements by promulgation of the necessary laws)

Chapter Two:

COMMISSION ON ELECTIONS PURPOSE OF THE COMELEC To protect the sanctity of the ballot  purity of elections is one of the fundamental requisites of popular government To ensure free and honest expression of the popular will  Intention is to place it outside the influence of political parties and the control of the legislative, executive, and judicial branches of the government  By an independent office whose sole work is to enforce laws on elections. COMPOSITION OF THE COMELEC  

1 CHAIRMAN 6 COMMISISONERS

QUALIFICATIONS OF MEMBERS 1. 2. 3. 4.

Natural-born citizens of the Philippines, at the time of their appointment; At least 35 years of age; College degree holders Must nor have been candidates for any election immediately preceding the election; 5. Majority, including the Chairman, are members of the bar, in practice for at least 10 years o reason for this is that the commission is a quasi-judicial agency APPOINTMENT AND TERMS OF OFFICE OF MEMBERS

Election Law Reviewer (2012)

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The chairman and the commissioners are appointed by the president with consent of the Commission on Appointments;

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For a term of seven (7) years without reappointment; o Staggered term of 2 years interval

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First appointed Commissioners (without reappointment): o 3 shall hold office for 7 years 4

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2 for 5 years last members for 3 years

The powers and functions of the comelec are spelled out in the Constitution, ART. IX-C Section 2: (EARS JDD ARRF)

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A member appointed to fill a vacancy shall serve only for the unexpired term to preserve the staggered terms of office;

1. ENFORCE AND ADMINISTER laws and regulations relative to the conduct of an ELECTION, PLEBISCITE, REFERENDUM AND RECALL;

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Appointments in temporary or acting capacity in the commission are not allowed; o The commission is an independent body and to preserve its independence, the members appointed to that position must permanent;

2. REGISTER, political parties, orgs, and coalitions;

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That independence and impartiality may be shaken and destroyed by a designation of a person or officer to act temporarily in the commission.

DISABILITIES OF MEMBERS 1. Can‟t hold any other office 2. Can‟t practice any other profession 3. Active management / control of any business which affects function of his office prohibited; 4. Prohibited from being financially interested in any contracts with gov‟t, including GOCCs.

3. SUBMIT TO PRES. AND CONGRESS comprehensive report on conduct of election, pleb, ref, recall. 4. JURISDICTION o EXCLUSIVE ORIGINAL JURISDICTION over  Regional, provincial and city officials  All contests relating to elections, returns and qualifications o APPELLATE JURISDICTION over  Municipal officials decided by courts of general jurisdiction  Barangay officials decided by courts of limited jurisdiction 5. DECIDE all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors and registration of voters;

*The disabilities during their continuance in office are similar to those imposed on the president and vice-president.

6. DEPUTIZE, with the concurrence of the president, law enforcement agencies, including AFP, for the purpose of ensuring free, orderly elections;

**Reason behind the prohibitions: fiduciary nature of public office

7. ACCREDIT, citizen‟s arms of the comelec.

CONSTITUTIONAL POWER AND FUNCTIONS OF THE COMELEC

8. RECOMMEND TO CONGRESS measures to minimize election spending, limitation of places for propaganda materials and prevent and penalize all forms of election frauds, offenses and malpractice (improvements);

As an independent body, it is clothed with the 3 powers of government: 1. Executive or administrative o to enforce and administer election laws 2. Quasi-legislative o to promulgate rules on all questions affecting the elections and its rules of procedure 3. Quasi-judicial o To exercise original and appellate jurisdiction over certain election contests


9. RECOMMEND TO THE PRESIDENT the removal of any officers or employee deputized or for the imposition of disciplinary actions for violations of election laws; 10. FILE, petitions in court for inclusion or exclusion of voters;  INVESTIGATE AND PROSECUTE cases of violations of election laws

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ENFORCE AND ADMINISTER LAWS RELATIVE TO THE CONDUCT OF ELECTIONS, ETC. Scope of power:  The Constitution gave the COMELEC all the necessary and incidental powers for it to achieve the holding of free, orderly, honest, and peaceful, and credible elections  Has investigatory and prosecution power under the Constitution and the Omnibus Elections Code.  Great latitude is given to the COMELEC in adopting means and methods to ensure the accomplishment of the great objective for which it was created  Not strictly bound by the rules on evidence  The choice and means of the COMELEC will not be interfered with unless these are clearly illegal or arbitrary  As an independent body created by the Constitution, it is on a level higher than statutory administrative organs

DECIDE ELECTION CONTESTS Election contests - refers to the adversary proceedings by which matters involving the title or claim to an elective office, made before or after proclamation of the winner, is settled whether or not the contestant is claiming the office in dispute - in case of elections of barangay officials, the term is restricted to proceedings after the proclamation of the winner as no pre-proclamation controversies are allowed - neither a civil nor a criminal proceeding; it is a summary proceeding of a political character (Rule 20 COMELEC Rules of Procedure)

*The enforcement and administration of all election laws by the COMELEC does not include the power to annul an election which may not have been free, orderly, and honest, as such power is merely preventive, and not curative. If it fails to accomplish that purpose, it is not for such body to cure or remedy the resulting evil but some other agencies of the government. (Abes v COMELEC – this ruling will now apply to elections involving the President, VP, and Members of Congress) Specific powers include:  Power to annul or cancel illegal registry of list of voters and to order preparation of a new one  To cancel the canvass of election returns and annul an illegal proclamation  To suspend the proclamation of winning candidates pending an inquiry into irregularities brought to its intention  To direct the board of canvasser to include in the canvass returns from questioned precincts  To review the actuations of the board of canvassers even to the extent of inquiring beyond the election records of the voting centers in question When proclamations have been made:  Any alteration or amendment in any statements of election, or in any contradiction or discrepancy appearing therein cannot be made without the intervention of a competent court  But it can order a new canvass even after the proclamation where its valid order directing the suspension of the proclamation has been violated

The power of COMELEC to decide election contests includes the power to determine the validity or nullity of votes

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COMELEC is also vested with the power of the prosecutor to conduct preliminary investigation and the prosecution of election offenses punishable under the election law before a competent court LOCAL ELECTIVE POSITIONS

ELECTION CONTESTS involving… Regional, provincial, and city officials Municipal and barangay officials Sangguniang Kabataan (SK) officials

Finality of 3 Decisions

Jurisdiction Exclusive jurisdiction of COMELEC Under RTC and MTC subject to appeal to COMELEC (appellate) DILG has direct control and supervision

May be appealed to the SC Final, executory, and not appealable

NATIONAL ELECTIVE POSITIONS

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ALL CONTESTS relating to the “election returns, 4 and qualifications” of…

Jurisdiction

Members of the Lower House

House of Representative Electoral Tribunal

Finality of Decisions

Does not divest SC of jurisdiction to resolve questions of law Phrase refers to all matters affecting the validity of the contestee‟s title 6

Senate (Upper House)

Senate Electoral Tribunal

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President / VP

Supreme Court, sitting en banc, as Presidential Electoral Tribunal

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COMELEC and SC have CONCURRENT jurisdiction to issue writs of certiorari, prohibition, and mandamus over decisions of trial courts of general jurisdiction.

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COMELEC has authority to issue the extraordinary writs only in aid of its appellate jurisdiction

DECIDE ALL QUESTIONS AFFECTING ELECTIONS Election – may refer to the conduct of the polls including the listing of voters, the holding of the electoral campaign, and the election of officers in the “Katipunan ng mga Barangay” 

The jurisdiction of COMELEC is over popular elections, the elected officials of which are determined through the will of the electorate.

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COMELEC has the inherent power to amend or control its processes and orders before they become final and executor. The Rules of Court apply suppletorily.

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COMELEC has no jurisdiction over questions involving the right to vote.

REGISTER POLITICAL PARTIES, ETC. AND ACCREDIT ITS CITIZENS ARMS COMELEC WILL DENY REGISTRATION OF: 1. Political parties which… a. have no platform or program of government; b. seek to achieve their goals through violence or unlawful means; c. refuse to uphold and adhere to the Constitution; OR d. are supported by any foreign government 2. Religious denominations and sects 3. Partisan and non-neutral citizen‟s arms *Acceptance of financial contributions from foreign governments and their agencies related to elections is a ground for the cancellation of registration of a political party or organization. Such contributions are declared as constituting interference in our internal affairs. FILE PETITIONS, INVESTIGATE, PROSECUTE 

It can exercise these powers on its own initiative even in the absence of any complaint.

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COMELEC can conduct preliminary investigations in cases involving election offenses for the purpose of helping the court determine probable cause and for filing an information in court. This power is EXCLUSIVE. Ombudsman or Prosecutor can only perform such power if they have been duly delegated / deputized by COMELEC.

DEPUTIZE LAW ENFORCEMENT AGENCIES 

COMELEC, with the concurrence of the President, may deputize law enforcement agencies to perform some of its functions.

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The officers and agencies deputized by COMELEC are subject to the authority, control, and supervision of the COMELEC in respect of the particular functions covered by such deputation. o Under the Omnibus Election Code, COMELEC may relieve any officer or employee deputized by it, and, upon its recommendation, the corresponding authority shall suspend or remove from office any or all such officers or employees who may, after due process, be found guilty of such violation or failure.


It may only recommend to the President the suspension or removal and it is the President who will impose such. President may or may not follow the recommendation of COMELEC. BUT as to officers and employees appointed by the COMELEC, it can remove them for cause.

SUBMIT REPORT 

Report should contain a description on how a previous election, plebiscite, initiative, referendum, or recall was conducted and what laws or regulations, if any, were violated.

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COMELEC may also submit recommendations with respect to the flaws or defects it has discovered in the enforcement of election laws.

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Without the constitutional mandate to submit reports, COMELEC may refuse to submit such to other branches of the government.

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Congress, may, by legislation, fix a period for the rendition of decisions for election cases. o Under the 1973 Constitution, all election cases shall be decided in 90 days from the date of their submission for decision o Under Sec 257 of the Omnibus Election Code, election cases brought before COMELEC shall be decided within 90 days from the date of submission for decision.  Adherence to this is not strictly required since a very strict construction might allow the procedural flaws to subvert the will of the electorate and would amount to disenfranchisement of voters in numerous cases.

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Sec 258 of the Omnibus Election Code on the preferential disposition of election contests applies only to cases before the courts and not those before COMELEC

COMELEC HAS POWER TO PUNISH FOR CONTEMPT 

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COMELEC has the power to hear and decide any controversy that may be submitted to it in connection with the elections. As an incident of such power, it may also punish for contempt (Rule 64 of RoC). This power is judicial in character. BUT in the exercise of its ADMINISTRATIVE functions, it may not hold a person in contempt. o What are these admin matters?  Contracts  Distribution of ballots etc.

HEARING OF ELECTION CASES (CONSTITUTION ART. IX, SECTION 3) REGULATION OF PUBLIC ENTITIES (CONSTITUTION ART. IX-C, SECTION 4) 

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2 tiered organizational and functional structure: o Election cases including pre-proclamation controversies (except those relating to election, returns, and qualifications of members of Congress which are under the exclusive jurisdiction of the respective Electoral Tribunal of each house) and appeals from trial courts must first be heard and decided by a Division of COMELEC.  Mandatory and jurisdictional  COMELEC sitting en banc does not have the authority to hear the case at first instance o When the exercise of quasi-judicial powers are involved, COMELEC is mandated to decide cases first in divisions of 3, and then, upon motion for reconsideration, en banc. COMELEC sitting en banc o Can act directly on matters falling within the administrative powers o Can only act on MR only of decisions of a division of the COMELEC o The review of the COMELEC sitting en banc is mandatory before the decision may be brought to the SC on certiorari o There is a presumption of regularity and factual findings are binding upon the regular courts o When COMELEC en banc reviews and evaluates a party‟s petition, a party‟s answer and the supporting papers attached thereto, the same is tantamount to a fair “hearing” o Technical rules of evidence are not rigoriously applied


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COMELEC, during election period, may o Supervise and regulate  The enjoyment or utilization of any franchises or permits for the operation of transportation and other public utilities,  Media communication or information  All grants, special privileges or concessions granted

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This is to ensure equal opportunity, time, and space for public information campaigns and for a among candidates in connection with the objective of holding free, orderly, honest, peaceful and credible elections

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The provision seeks to place all candidates on more or less equal footing in making known their qualifications and platforms and their stand on public issues and thereby equalize their opportunities of winning at the polls

PARDON, ETC. OF VIOLATORS OF ELECTION LAWS (CONSTITUTION ART. IX0C, section 4) 

NO pardon, amnesty, parole or suspension of sentence for violation of election laws, rules and regulations shall be granted by the President without the favorable recommendation of the COMELEC

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PURPOSE: to avoid the possibility of the president granting pardon etc. who may belong to his party or for political reasons. 8

ELECTION AND CAMPAIGN PERIODS

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Election period: 90 days before election and 30 days thereafter (CONSTITUTION ART. IX-C, section 6)

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The Constitutional provision pertains only to the election period and not to the campaign period

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The COMELEC or Congress, in special cases, may change the duration of the election period.

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The limitation is designed to minimize partisan political activities and expensive election contests.

Campaign period: maximum of 90 days before the election part of which is intended for the COMELEC to prepare for the election, the printing, and distribution of forms, appointment of members in registrations boards, etc., and other preparatory acts fixed by law (may be less than 90 days) and covers only the period before the day of the election it is unlawful to engage in an election campaign or partisan political activity outside the campaign period 

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Comelec shall decide by majority vote of all members any case

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Within 60 days from date of its submission for decision or resolution; o Deemed submitted for decision upon filing of the last pleading, brief, memorandum, required by rules;

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SC has no power of supervision over the COMELEC and review is limited only to questions involving grave abuse of discretion amounting to lack or excess of jurisdiction o Grounds:  Grave abuse of discretion amounting to patent and substantial denial of due process committed n the exercise of its adjudicatory or quasi-judicial powers  There is absolutely no evidence or no substantial evidence in support of the findings  Erroneous estimation of the evidence presented  Question of law o REASON:  independence of COMELEC to secure free, orderly, honest, and peaceful elections

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Execution pending appeal can only be allowed: o on the basis of “good reasons” to be stated in a special order o the reasons must be of such urgency as to outweigh the injury or damage of the losing party should the latter secure a reversal of the judgment on appeal; and o there must be a motion by the prevailing party with notice to the adverse party

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Execution pending appeal o allowed by Section 2 Rule 39 of the Rules of Court is an exception to the general rule that only final judgments may be executed; o This is strictly construed.

ELECTION PERIOD NOT SAME WITH CAMPAIGN PERIOD; o Election period includes 30 days after election as election period; o While campaign period can only include the 90 days prior to election day;

REDITION OF DECISION AND JUDICIAL REVIEW (CONSTITUTION ART. IX-A, section 7)

Orders and rules of COMELEC sitting en banc subject to review by SC under certiorari (Rule 65), unless otherwise provided by Constitution o Only election disputes before COMELEC en banc in the exercise of its adjudicatory or quasi-judicial powers involving elective regional, provincial, and city officials, may be brought to the SC under certiorari


MR of an en banc decision is not allowed except in election cases. Only recourse would be certiorari to SC under Rule 65 An MR when not pro forma suspends the running of the period to elevate the matter to the SC

*Jurisdiction of the SC to review questions of law will not be affected RULES OF PROCEDURE 

The COMELEC en banc may promulgate its own rules concerning pleadings and practice before it or before any of its offices o Liberal construction of rules o May suspend its Rules or any portion thereof in the interest of justice o Rules of Court applies suppletorily 9

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Such rules shall not diminish, increase, or modify substantive rights; o Substantive rights – rights which substantive law declares or rights concerning life, liberty or property (bill of rights) o Procedural rights – refer to the remedies or means by which an aggrieved party, whose rights have been violated, may bring his case to suit, trial, and judgment.

VOTES REQUIRED FOR RENDITION OF DECISION 

ART. IX-A, SECTION 7 – COMELEC shall decide by a MAJORITY VOTE of all its members any case or matter brought before it;

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QUORUM of a DIVISION – TWO members shall constitute a quorum for the transaction of the official business of the division.

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DECISION OF A DIVISION – UNANIMOUS concurrence of all three commissioners; such decision shall be considered as a decision of the commission;

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DIVISION; IF REQUIRED VOTES NOT OBTAINED – in case there is a dissenting opinion, the case may be appealed to the commission en banc, in which case the vote of the majority thereof shall be the decision of the Commission;

ADDITIONAL FUNCTIONS AS MAY BE PROVIDED BY THE LAW (CONSTITUTION ART. IX-A, Section 8) 

COMELEC shall perform such other functions as may be provided by law

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Congress cannot diminish the powers and functions granted by the Constitution to COMELEC

3. Summons parties to controversy, issue subpoena and subpoena duces tecum, take testimony and investigate, conduct hearing, issue warrant of arrest; 4. Avail assistance of any national or local law enforcement agency to execute under its direct and immediate supervision any of its final decisions; 5. Punish contempt; 6. Enforce and execute decisions which shall have precedence over those emanating from other authority, except SC and habeas corpus; 7. Prescribe forms to be used un election, plebiscite and referendum; 8. Procure any supplies and equipment for elections etc. 9. Prescribe use or adoption of latest technological and electronic devices; 10. Carry out a continuing and systematic campaign through newspaper of general circulation, radios and other media to educate public; 11. Enlist non-partisan groups or organization of citizens from civic, youth, professional, educational, business or labor sectors known for their probity, impartiality and integrity and integrity with the membership and capability to undertake a coordinated operation and activity to assists it in the implementation of the provisions of the code and the resolutions, orders and instructions of the commission; 12. Conduct hearings on controversies; 13. Fix other reasonable periods for certain pre-election requirements in order that voters shall not be deprived of their right of suffrage and certain groups of rights granted them in the code. *Unless indicated in the Code, COMELEC is authorized to fix the appropriate period for the various prohibited acts enumerated therein.

POWERS AND FUNCTIONS UNDER THE OMNIBUS ELETION CODE 1. Exercise direct and immediate supervision and control over national and local officials or employees, including members of any national or local law enforcement agency; may also deputize ROTC cadets; 2. Promulgate rules and regulations implementing the provisions of the this code or other laws; and require the payment of legal fees for business done by comelec;


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Chapter Three:

REQUIREMENTS BEFORE ELECTION A. Registration

NECESSITY OF REGISTRATION 

It is essential to the exercise of the right of suffrage, not the possession thereof. It is part of the right to vote and an indispensable element in the election process.

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Unless excused by some fact which the law itself deems sufficient, the voter must register if he would exercise his privilege

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The fact that a voter is qualified to vote must be evidenced by the proper registration, and where it is not so evidenced the failure must, where the opportunity for registration is afforded, be attributed to the voter‟s own fault or neglect.

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Registration of voters – means of determining the qualifications of voters, and of regulating the exercise of the right to vote through statutes requiring the names of those entitled to vote to be previously recorded by the officers provided for that purpose Registration Laws – statutes requiring names of those entitled to vote to be previously recorded Registration - act of listing the names; the act of accomplishing and filing of a sworn application for registration by a qualified voter before the election officer of the city or municipality wherein he resides and including the same in the book of registered voters upon approval by the Election Registration Board Registration Record – refers to an application for registration duly approved by the Election Registration Board System of continuing registration of voters – the personal filing of application of registration of voters shall be conducted daily in the office of the Election Officer during regular office hours. No registration shall however, be conducted during the period starting 120 days before a regular election and 90 days before a special election The Constitution, by carefully prescribing the qualification of voters, necessarily requires that an examination of the claims of persons to vote, on the ground of possessing these qualifications, must at some time be had by those who are to decide on them. The requirements of offering and proving that one is entitled to vote, that their names must appear in an alphabetical list or register of voters, is highly reasonable and useful in promoting the mandate of COMELEC. It is not a new qualification that is added by COMELEC to those prescribed in the Constitution but is reasonable and convenient regulation of the mode of exercising the right of voting

Akbayan Youth v COMELEC W/N SC can compel COMELEC by mandamus to conduct special registration of new voters beyond the time period provided for by law. NO, COMELEC cannot be compelled by mandamus by the SC. As the sole institution tasked by the Constitution to enforce all laws and regulations relative to the conduct of an election, it exercises a prerogative that chiefly pertains to it and one which squarely falls within the proper sphere of its constitutionally mandated power. Furthermore, COMELEC did not act gravely when it denied the request. It can be seen that because of the circumstances and the laws available, it was prudent for it to deny the petition. Granting the petition may lead to a creation of a voter‟s list that is erroneous and doubtful since by law it can no longer be checked by the necessary organs within the period requested by the petitioners. (the period to question and examine the list has already lapsed on the day that the special registration was requested to be held) The right to vote is not absolute and must be exercised w/in the framework of the Constitution and applicable laws providing for procedural and substantive requirements. One of the indispensable procedural requirements is registration.

5

Refer to Sections 2, 3, 7, 8, 9, and 10 of RA 8189 (Voter‟s Registration Act of 1996) for the detailed list and procedure for voter registration Election Law Reviewer (2012)

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REGISTRATION WITH ELECTION REGISTRATION BOARD Election Registration Board (ERB) – there shall be in each city and municipality as many Election Registration Boards as there are election officers therein to act on all applications for registration in thickly populated cities/municipalities 

Composition: 1. Election Officer (EO) as the Chairman  In case of disqualification, COMELEC shall designate an acting Election Officer 2. Members – Public School Official most senior in rank and the Local Civil Registrar or in his absence, the city or municipal treasurer  In case of disqualification of unavailability of the Local Civil Registrar or the Municipal Treasurer, COMELEC shall designate any other appointive civil service official from the same locality as substitute

Change of Residence or address – any registered voter who has transferred residence to another city or municipality may apply with the EO of his new residence for the transfer of his registration book 

Application for transfer of registration shall be subject to the requirements of notice and hearing and the approval of the ERB



After approval and notice, the EO shall transmit by registered mail the voter‟s registration record to the EO of the voter‟s new residence

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If the change involved a change in precinct, the Board shall transfer his registration record to the precinct book of voters of his new precinct and notify the voter of his new precinct.

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All changes of address shall be reported to the office of the provincial election supervisor and the Commission in Manila

NOTE: The Election Officer is the highest official or authorized representative of the Commission in the municipality or city.

Notice and hearing of applications – Upon receipt of application for reg, the EO shall set them for hearing, notice will be posted in the city or municipal bulletin board and in his office for at least one (1) week before the hearing

Illiterate or disabled applicants – refer to persons who cannot by themselves prepare an application for registration because of their physical disability and/or inability to read and write

Challenges to right to register – any voter, candidate or representative of a registered political party may challenge in writing any application for registration, stating the grounds therefore.

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An illiterate person may register with the assistance of the Election Officer or any member of an accredited citizen‟s arm o HOW?  The EO shall place such person under oath and ask him questions and record the answers given in order to accomplish the application form.  This form will then be subscribed by the applicant in the presence of the Board by means of a thumbmark or any other customary mark and shall be subscribed and attested to also by the majority of the Board.

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A physically disabled person‟s application may be prepared by any relative th within the 4 civil degree of consanguinity or affinity or by the Election Officer or any member of an accredited citizen‟s arm using the data supplied by the applicant

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The fact of illiteracy or disability shall be so indicated in the application


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The challenge shall be under oath and be attached to the application, together with the proof of notice of hearing to the challenger and to the applicant

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The oppositions to the challenge must, in all cases, be filed not later than the second Monday of the month in which the same is scheduled to be heard or processed by the ERB. If this day will fall on a non-working holiday, oppositions may be filed on the next following working day.

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The hearing shall be heard on the third Monday of the month and the decision shall be rendered before the end of the month

Approval and disapproval of the application – the EO shall submit to the Board all applications for registration filed and by majority vote, approve or disapprove the applications 

upon approval, the EO shall assign a voter‟s ID number and issue the corresponding ID card to the registered voter 12



if disapproved, the applicant shall be furnished with a certificate of disapproval stating the ground therefore

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in any case, any aggrieved party may file a petition for exclusion or inclusion with the proper MTC or Metropolitan TC

DEACTIVATION, REACTIVATION AND CANCELLATION OF REGISTRATION Deactivation of registration – ERB shall deactivate the registration and remove the registration records of the following persons: 1. Any person sentenced by final judgment to suffer imprisonment for not less than 1 year – automatically regains the right to vote after 5 years of service of sentence 2. Any person adjudged by final judgment by a competent court or tribunal of having caused/committed any crime involving disloyalty to the duly constituted government – automatically regains right to vote 5 years after service of sentence 3. Any person declared by competent authority to be insane or incompetent – subsequently removed by a declaration of a proper authority 4. Any person who did not vote in the 2 successive preceding regular elections 5. Any person whose registration has been ordered excluded by the court 6. Any person who has lost his Filipino citizenship

Publication of action on application for registration - Within 5 days from the approval/disapproval of application, the Board shall post a notice in the bulletin board of the city or municipal hall PRESERVATION OF VOTER’S REGISTRATION RECORD 

The EO shall compile the original copies of the approved application for registration per precinct and arrange the same alphabetically according to surname. o He shall preserve the book of voters and ensure its integrity

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Provincial file – consist of duplicate copies of all registration records in each precinct of every city or municipality in the province o Shall be in the custody of the Provincial Election Supervisor

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National Central File – under the custody of the Commission in Manila rd consisting of the 3 copies of all the approved voter registration records

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The corresponding clerk of court has the duty to furnish the Election Officer of the necessary list which contains the persons disqualified (as enumerated above) at the end of each month

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COMELEC may request a certified list of those who have lost their Filipino citizenship or have been declared as insane / incompetent from other government agencies

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EO must post a certified list of deactivated voters and send a copy to the corresponding local head, central file, provincial file, and the voter concerned

IDENTIFICATION OF VOTERS 

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Voter’s Identification Card (VIC) – issued to the registered voter which shall serve as a document for his ID o In case of loss or destruction, no copy may be issued except to the registered voter himself or only upon the authority of the Commission o Design should be as much as possible tamper proof Voter’s Identification Number (VIN) – consists of three parts, each separated by a dash o Part 1: Current Address of the Voter (4 digits)  First 2 digits correspond to the province  Last 2 digits correspond to the city, district, or municipality o Part 2: Current Precinct Assignment of the Voter (4 digits +1 letter)  First 4 digits correspond to the precinct number  Letter indicates whether it is a mother or daughter precinct o Part 3: Permanent Birth and Name Code Unique to the Voter


Reactivation of registration – any voter whose registration is deactivated may file with the EO a sworn application for reactivation of his registration in the form of an affidavit stating that the grounds for the deactivation no longer exist 

May not file for reactivation 120 days before a regular election and 90 days before a special election

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EO must submit the application to the ERB for appropriate action

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If approved, EO must retrieve the inactive record and send necessary notices to persons and agencies concerned

BOOK OF VOTERS Books of voters – compilation of all registration records in a precinct

Cancellation of Registration – the Board shall cancel the registration of those who have died as certified by the Local Civil Registrar 

Local Civil Registrar has the duty of sending monthly lists of persons who died during the previous month to the EO of the place where the deceased is registered o In the absence of proof of place of registrations, must be send to the EO of the place of residence o In all cases, a list must be send to the national central file and the proper provincial file

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EO shall post a certified list in the bulletin board of his office and furnish copies thereof to the local heads concerned, national central file, and the provincial file

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Sealing – ERB shall notify within 15 days before the start of the campaign period representatives of all registered political parties and members of the Board of Election inspectors to inspect and verify the completeness of the voter‟s registration records o After verification and certification, the Board shall seal the book of voters in the presence of the Board inspectors at the start of the campaign period and take custody of the same until their distribution to the Board on the day of the election o EO must deliver the sealed precinct book of voters to the Chairman of the Board of Election Inspectors

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Annulment – COMELEC, upon verified petition of any voter or election officer or duly registered political party and after notice and hearing, annul any book of voters that is not prepared in accordance with RA 8189 or was prepared through fraud, bribery, forgery, impersonation, intimidation, forcer or any similar irregularity, or which contains data that are statistically improbable

LIST OF VOTERS PER PRECINCT 

List of Voters – enumeration of names of registered voters in a precinct duly certified by the ERB for use in the election



Permanent list of voters – consists of all registered voters residing within the territorial jurisdiction of every precinct indicated by the precinct maps o Accompanied by an addition/deletion list for the purpose of updating the list o Not be changed or altered or transferred to another precinct without the express written consent of the voter

INCLUSION, EXCLUSION AND CORRECTION OF NAMES OF VOTERS

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Computerization – computer printouts of the list of voters duly certified by the Board are official documents and shall be used for voting and other election related purposes as well as for legitimate research need

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Preparation and posting of the certified list of voters – must be prepared 90 days before a regular election and 60 days before a special election and copies must be furnished to the provincial, regional, and national central files


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Judicial proceedings: o petition for inclusion or correction of names of voters filed during office hours; o notice of the place, date and time of the hearing served on the members of the ERB and the challenged voter upon filing of petition o petition shall refer only to one (1) precinct and implead the Board as respondent; o no costs shall be assessed against any party in these proceedings except when the court shall find that the application has been filed solely to harass the adverse party and cause him to incur expenses; o any voter, election official or political party may intervene and present his evidence;

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Jurisdiction in inclusion and exclusion cases – MTC and Metropolitan TC shall have original and exclusive jurisdiction over all cases of inclusion and exclusion of voters in their respective cities or municipalities o May be appealed to the RTC within 5 days from notice  RTC must decide within 10 days  RTC decision shall immediately become final and executory  No MR shall be entertained o No appeal after 5 days, it will become final and executory Petition for inclusion of voters in the list – any person whose application has been disapproved or whose name has been stricken out from the list may file with the court a petition to include his name o May not be filed 105 days prior to a regular election or 75 days prior to a special election o Must be supported by a certificate of disapproval of application and proof of service of notice of his petition upon the Board o Shall be decided within 15 days from filing Petition for exclusion of voters in the list – any registered voter, representative, of a political party or the Election Officer, may file with the court a sworn petition for the exclusion of a voter from the permanent list o May not be filed 100 days prior to a regular election or 65 days prior to a special election o Must be accompanied by a proof of notice to the Board and to the challenged voter o Must be decided within 10 days from filing Verification of list of registered voters – the EO shall file exclusion proceedings when necessary and verify the list of the registered voters of any precinct by regular mail or house to house canvass o COMELEC may enlist the help of NGOs, etc. and deputize them to assist in the verification Voter excluded through inadvertence or registered with an erroneous or misspelled name o Voter may file on any date with the proper MTC or Metropolitan TC a petition for an order directing that the voter‟s name be entered or corrected in the list o Must attach the necessary documents and proof of notice o The citizenship of a person to be stricken out may be decided in the exclusion proceedings


INCLUSION AND EXCLUSION PROCEEDINGS SUMMARY IN CHARACTER 

The summary character of an exclusion case makes the decision that a court may render thereon even if final and unappealable does not acquire the nature of res judicata. o Exception: in cases where the right to remain in the list of voters or for being excluded therefrom for the particular election in relation to which the proceedings had been held acquires the nature of res judicata

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Factual findings and conclusions of TC are not conclusive on COMELEC

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The authority to order the inclusion in or exclusion from the list of voters necessarily carries with it the power to inquire into and settle all matters essential to the exercise of said authority

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The jurisdiction of lower court is limited only to determining the right of the voter to remain in the list if voters or to exclude him/her. The lower court has no jurisdiction to order the change or transfer or registration from one place of residence to another.

QUALIFICATIONS OF A VOTER (provided for by the Constitution) 

Citizenship – by birth or naturalization

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Age – a person may be registered as a voter although he is less than 18 years at the time of registration if he will be at least 18 at the time of the election

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Residence

RESIDENCE QUALIFICATION OF VOTER / CANDIDATE 

as used in election law, imports not only an intention to reside in a fixed place but also personal presence in that place coupled with conduct indicative of such intention o Place of his domicile or legal residence o That place where the elector makes his permanent or true home, his principal place of business, and his family residence, if he has one; where he intends to remain indefinitely, and without a present intention to depart, when he leaves it he intends to return to it, and after his return he deems himself at home

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Residence is a matter of intention – may be inferred from his acts, activities, and utterances

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Once acquired in a certain place, it will be deemed to continue there until a new one has been acquired

would be plainly ridiculous for a candidate to deliberately and knowingly make a statement in a certificate of candidacy which would lead to his or her disqualification. A minor follows the domicile of his parents.

In order to acquire a new domicile by choice (VOLUNTARY), there must concur: o residence or bodily presence in the new locality; o intention to remain there; o intention to abandon the old domicile In other words, there must be basically animus manendi coupled with animus non rivertendi.

The presumption that the wife automatically gains the husband‟s domicile by operation of law upon marriage cannot be inferred from the use of the term “residence” in Art 110 of the Civil Code because the Civil Code is one area where the two concepts are well delineated. What the wife acquires upon marriage is actual residence and she is not deemed to have lost her domicile of origin.

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The mere absence of an individual from his permanent residence without the intention to abandon it does not result in the loss or change of domicile

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Registration and voting by a person in another place do not by themselves constitute abandonment of the legal residence, where the stay in the former cannot be considered as voluntary but a necessity in order to continue his studies

There must also be actual presence in the place and not just mere intent to retain it as the domicile of origin. This is in line with the view that the house representatives / elective officials must be familiar with the environment and problems of the locality where he intends to run. (one cannot be that familiar with the locality without actual presence)

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Absence from the residence of origin to practice a profession does not constitute loss of residence

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Not necessary that a person should have a house in order to establish his residence and domicile in a municipality

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There is nothing wrong in an individual changing residences so he could run for an elective post, for as long as he is able to prove with reasonable certainty that he has effected a change of residence for election law purposes for the period required by law.

Padilla, J., dissenting:

Regalado, J., dissenting: Three types of domicile: 1. by origin or birth 2. by choice 3. by operation of law Davide, Jr., J., dissenting: Wife does not automatically regain domicile of origin upon the death of the husband. Upon death, the wife is given a chance to elect a domicile, but failing to elect such will lead to the conclusion that she will retain the domicile of the deceased husband.

Romualdez-Marcos v COMELEC DISQUALIFICATIONS FROM VOTING: Residence, for election purposes, is used synonymously with domicile. It is the fact of residence, not a statement in a certificate of candidacy which ought to be decisive in determining whether or not an individual has satisfied the Constitution‟s residency qualification requirement. The said statement becomes material only when there is or appears to be a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. It Election Law Reviewer (2012)

The following shall be disqualified from voting: (2) Any person sentenced by final judgment to suffer imprisonment for not less than one (1) year, such disability not having been removed by plenary pardon or granted amnesty; (3) Adjudged by final judgment of having committed any crime involving disloyalty to the duly constituted government; 16

(4)

o Automatically reacquire right to vote upon expiration of 5 years after service of sentence (applies to (1) also) Insane or incompetent persons as declared by competent authority unless subsequently declared as otherwise B. PRECINCTS AND POLLING PLACES

ELECTION PRECINCT – basic unit of territory established by the COMELEC for the purpose of voting (1)

Establishment – The COMELEC shall draw updated maps of all the precincts nationwide. o o o

(2)

Precinct maps – sketch or drawing of a geographical area stated in terms of streets or streets blocks or sitios the residence of which would belong to a particular precinct No territory comprising an election precinct shall be altered or a new precinct be established at the start of the election period Splitting of an original precinct or merger of two or more original precincts shall not be allowed without redrawing the precinct map/s 120 days before election day

Arrangement – Every barangay shall have at least 1 precinct which in turn shall have no more than 200 voters and shall comprise of contiguous and compact territories

How? Posting in the city hall or municipal building and in 3 conspicuous places in the city or municipality POLLING PLACES AND THEIR DESIGNATION Polling Place – building or place where the board of election inspectors conducts its proceedings and where the voters cast their votes Voting Center – building or place where the polling place is located (1) Size and location of polling place – As far as practicable, ground floor, sufficient size to accommodate 40 voters at one time outside the guard rail for the board of election inspectors (2) Modes for intimidating change of location a. Written petition of the majority of the voters b. Agreement of all the political parties c. Resolution of the COMELEC after notice and hearing (*It is the COMELEC which determines whether a change is necessary after notice and hearing.) Note: No location shall be changed within 45 days before a regular election and 30 days before a special election or a referendum or plebiscite except in case it is destroyed or it cannot be sued. ARRANGEMENTS AND CONTENTS OF POLLING PLACES (1)

During the voting, there shall be in each polling place a booth for every 20 voters registered in the precinct. a. Post a list containing the list of all the candidates or the issues or questions to be voted for

(2)

There shall be a guard rail between the voting booths and the table for the board of election inspectors which shall have separate entrance and exit.

(3)

On the day of the voting, a ballot box one side of which shall be transparent which shall be set in a manner visible to the voting public containing two compartments, namely, the compartment for valid ballots and the compartment for spoiled ballots

(4)

There shall be at least 10 voting booths of such size, specifications and materials as the Commission may provide to enable voters to fill out their ballots secretly,

o

A precinct shall be allowed to have less than 200 registered voters under the following conditions: (1) As soon as the 200-limit for every precinct has been reached, a spin-off or daughter precinct shall be automatically created to accommodate voters residing within the territorial jurisdiction of the original precinct (2) An island or group of islands with less than 200 voters may comprise 1 original precinct NOTE: In view of the automated elections, COMELEC had to cluster the precincts to only about 76,000 each having around 1,000 votes. PUBLICATION OF MAPS OF PRECINCTS st

When? At least 5 days before the 1 registration day preceding a regular or special election or a referendum or a plebiscite


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FURNISHING OF BALLOT BOXES, FORMS, and STATIONARIES AND MATERIALS FOR ELECTION (1) The COMELEC shall prepare and furnish the ballot boxes, forms, stationeries and materials necessary for the registration of voters and the holding of elections. (2) The provincial, city and municipal treasurers shall have custody of such election paraphernalia, supplies and materials. REQUISITION, PRINTING, AND DISTRIBUTION OF OFFICIAL BALLOTS AND ELECTION RETURNS (1)

The official ballots and election returns shall be printed upon orders of the COMELEC.

(2)

It shall be printed by the Government Printing Office and/or the Central Bank printing facilities exclusively, under the exclusive supervision and control of the Commission

(3)

NOTE: In the May 10, 2010 automated elections, the voters, instead of manually writing the names of candidates, shaded the oval indicated in the ballot next to the name of the candidate of their choice. SIGNATURE OF THE CHAIRMAN AT BACK OF EVERY BALLOT – The Chairman of the Board of Election Inspectors in the presence of the voter shall affix his signature at the back of his ballot Failure to do so shall be noted in the minutes of the board of election inspectors and shall constitute an election offense PUBLICATION OF OFFICIAL BALLOTS, ETC. – At least 10 days before an election in a newspaper of general circulation certified data on the number of official ballots and election returns and the names and addresses of the printers and the number printed by each.

NAME OF WATCHERS The ruling party and the dominant opposition party or their respective duly authorized representatives shall submit the names of their respective watchers.

There shall not be anything printed or written at the back of the ballot except as provided in Section 24 of R.A. No. 7166

C. Certificates of Candidacy CANDIDATE – any person aspiring for or seeking an elective public office, who has filed a certificate or candidacy by himself or through an accredited political party, aggroupment, or coalition of parties.

FORM AND CONTENTS OF BALLOTS (1)

(2)

It shall be uniform in size and shall be provided by the Commission  Printed in black ink on white security paper with distinctive, clear and legible watermarks that will readily distinguish it from ordinary paper  It shall be in the shape of a strip with stub and detachable coupon containing the serial number of the ballot and a space for the thumb mark of the voter on the detachable coupon  It shall bear at the top of the middle portion the coat-of-arms of the Republic of the Philippines, the words “Official Ballot,” the name of the city or municipality and province in which the election is to be held, the date of the election and the following notice in English: “Fill out this ballot secretly inside the voting booth. Do not put any distinctive mark on any part of this ballot.” It shall contain the names of all the offices to be voted for in the election, allowing sufficient space with horizontal lines where the voter may write the name of the individual candidates voted for by him


NOTE: Any person who files his CoC within the period for filing shall only be considered a candidate at the start of the campaign period for which he filed his CoC. FILING OF CERTIFICATE OF CANDIDACY (CoC) (1)

No person shall be eligible for any elective public office unless he files a sworn CoC within the period fixed by the Omnibus Election Code.

(2)

No person shall be eligible for more than 1 office to be filled in the same election.

(3)

If he files his CoC for more than 1 office, he shall not be eligible for any of them. Provided that before the expiration of the period to file a CoC, the person who has filed such may declare under oath the office which he desires to be eligible and cancel the CoC for the other office/s.

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(4)

(5)

Any vote in favor of a person who has not filed a CoC or in favor of a candidate for any office for which he did not present himself is void and counted as a stray vote but DOES NOT INVALIDATE the whole ballot. COMELEC or its designated officer has the ministerial duty to receive and acknowledge receipt of the CoC but has jurisdiction over a petition to deny due course to or cancel CoC provided due process is observed.

TIME AND PLACE OF FILING Under RA 7166 which provides for synchronized national and local elections, the CoCs shall be filed in 5 legible copies with the COMELEC not later than the day before the date legally fixed for the beginning of his campaign period. (1)

CoCs for President, Vice-President and Senators – COMELEC main office in Manila

(2)

CoCs for Members of the House of Representatives – provincial election supervisor of the province concerned

IMPORTANCE OF A VALID CoC (1) Requirement absolutely mandatory (2) The evident purposes of the law in requiring the filing of CoCs and in fixing the time limit therefor are: a. To enable the voters to know, at least 60 days before the regular election, the candidates b. To avoid confusion and inconvenience in the tabulation of the votes cast WITHDRAWAL OF THE CoC How? By submitting, prior to the election, to the office concerned a written declaration under oath which shall not affect whatever criminal, civil or administrative liabilities which a candidate may have incurred. Effect – The withdrawal of a CoC does not necessarily render the CoC void ab initio. Once filed, the permanent legal effects produced thereby remain even if the certificate itself be subsequently withdrawn. AUTOMATIC RESIGNATION

(3)

CoCs for provincial offices – provincial election supervisor concerned (1)

(4)

CoCs for city and municipal offices – city or municipal election registrar concerned

NOTE: A CoC filed beyond the deadline is not valid. o A CoC shall be filed by the candidate personally or by his duly authorized representative. PRINTING OF CANDIDATES’ NAMES IN ELECTION RETURNS (1) Names of registered candidates for local position shall be printed in the election returns. (2) If a candidate has been disqualified or declared a nuisance candidate, it shall be the duty of the COMELEC to instruct without delay the appropriate election officials to delete the name of said candidate as printed in the election return.


Any person holding a public appointive office or position, including active members of the AFP, and officers and employees in GOCC shall be considered ipso facto resigned from his office upon the filing of his CoC. (2) Forfeiture is automatic and permanently effective upon the filing of the CC for another office. Only the moment and act of filing are considered. (3) The automatic and permanent loss of office by any elective official makes no exception for officials under suspension when they file CC for another office. (4) An official who is considered as resigned upon the filing of his CC is not restored to his position by withdrawal of the same. [Flores v. COMELEC] – Under R.A. No. 6679, the person who wins the highest number of votes as kagawad becomes by operation of law the punong barangay. In the particular case of the petitioner, it should be noted that he was in fact not even elected in 1982 as one of the six councilmen but separately as the barangay captain. He was thus correctly deemed resigned upon his filing of a certificate of candidacy for kagawad in 1989, as this was not the position he was holding, or was incumbent in, at the time he filed such certificate.

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CERTIFIED LIST OF CANDIDATES

PETITION TO DENY DUE COURSE TO OR CANCEL A CoC

The COMELEC shall cause to be printed a certified list of candidates containing the names of all the registered candidates for each office to be voted for in each city or province or municipality immediately followed by the nickname or stage name of each candidate duly registered in his CoC and his political party affiliation, if any.

Who may file? Any person exclusively on the ground that any material representation contained therein as required is false.

CANDIDATES IN CASE OF DEATH, DISQUALIFICATION OR WITHDRAWAL OF ANOTHER (1)

If after the last day for the filing of the CC, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a CoC to replace the candidate.

(2)

The substitute candidate nominated by the political party concerned may file his CoC for the office affected not later than mid-day of the day of the election.

(3)

If it occurs between the day before the election and mid-day of election day, said CoC may be filed with any board of election inspectors in the political subdivision where his is a candidate.

(4)

The substitute candidate need not be a member of the political party concerned prior to his nomination as its official candidate.

VOTES CAST FOR SUBSTITUTED CANDIDATES (1) In case of valid substitutions after the official ballots have been printed, the votes cast for the substituted candidates shall be considered as stray votes but shall not invalidate the whole ballot. For this purpose the official ballots shall provide spaces where the voters may write the name of the substitute candidates if they are voting for the latter. (2) If the substitute candidate has the same family name, the above rule shall not apply. NOTE: Under the new law (Automated and Election System Act), in case of valid substitutions after the official ballots shall have been printed, the votes cast for the substituted candidates shall be considered votes for the substitutes.


When? At any time not later than 25 days from the time of the filing of the CoC and shall be decided, after due process and hearing, not later than 15 days before the election. CANCELLATION OF CERTIFICATE BY COMMISSION The COMELEC may motu propio or upon verified petition of an interested party, refuse to give due course to or cancel a CoC if the following situations are extant: (1) If it is shown that the CoC has been filed to put an election process in mockery or disrepute; (2) If CoC was filed to cause confusion among the voters by the similarity of the names of the registered candidate; (3) If there are any other circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office which the CoC has been filed and thus prevent faithful determination of the true will of the electorate. Note: A cancelled CoC cannot give rise to a valid candidacy, and much less to valid votes. Where, however, the ruling is not yet final on election day, the duty of the court is to ascertain the will of the electorate under the factual circumstances of the case. (COMELEC decisions in pre-proclamation controversies and petitions to deny course to or to cancel CoC shall become final and executory after the lapse of 5 days from their promulgation.) VOTES FOR CANDIDATES WITH DISQUALIFICATION CASE (1) Candidates who are disqualified by final judgment before the election shall not be voted for and the votes cast for them shall not be counted. (2) Those against whom no final judgment of disqualification had been rendered may be voted for and proclaimed, unless on motion of the complainant, the COMELEC suspends their proclamation because the grounds for their disqualification or cancellation of their CoCs are strong. MATERIAL AND FALSE REPRESENTATION – The false representation must be made with the intention to deceive the electorate as to the would-be candidate‟s qualifications for public office.

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RESIDENCE REQUIREMENT OF A CANDIDATE – COMELEC cannot base its decisions solely on very personal assessment standards. SIMILARITY/DIFFERENCE PROCEEDING

OF

PROCEEDING

WITH

QUO

WARRANTO

(1) SC has likened a proceeding under Section 78 of the Omnibus Election Code to a quo warranto proceeding since they both deal with the qualifications of a candidate. (2) The petition questioning the qualifications of a registered candidate to run for the office for which his CoC was filed can be raised (a) before the election and (b) after the election. SECTION 78 Deals with the qualifications candidate Time of filing: Before the election Grounds: Misrepresentation

of

a

SECTION 253 Deals with the qualifications of a candidate After the election Ineligibility or disloyalty to the Republic of the Philippines *Petition for quo warranto not barred by failure to file petition to disqualify

REMEDY WHERE CANDIDATE HAS BEEN PROCLAIMED  If winning candidate is NOT eligible because of failure to file properly his CoC as required by law – contest his election after he has been duly proclaimed.  It has been held that the defects of the CoC should be questioned on or before the election and not after the will of the people has been expressed through the ballots.  Where a candidate has received popular mandate, overwhelmingly and clearly expressed, all possible doubts should be resolved in favor of the candidate‟s eligibility for to rule otherwise is to defeat the will of the people. (The true will of the electorate should be paramount.) DISQUALIFICATIONS (1) Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than 18 months or for a crime involving moral turpitude. Election Law Reviewer (2012)

(2) Any candidate who, in action or protest in which he is a party, is declared by final decision guilty of or found by COMELEC of having: a. Given money or other material consideration to influence, induce or corrupt the voters of public officials performing electoral functions b. Committed acts of terrorism to enhance his candidacy c. Spent in his election campaign an amount in excess of the allowed d. Solicited, received or made any contribution prohibited under the Omnibus Election Code (3) Any person who is a permanent resident of or an immigrant to a foreign country, unless said person has waived his status as permanent resident or immigrant of a foreign country NOTE: The Dual Citizenship Act of 2003 expressly provides for the conditions before those who re-acquired Filipino citizenship may run for a public office in the Philippines. (At the time of the filing of a CoC, made a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath.) RULES GOVERNING ELECTION

CASES

OF

DISQUALIFICATIONS

BEFORE

THE

(1) Complaint filed before election – The complaint shall be inquired into by the Commission for the purpose of determining whether the acts complained of have in fact been committed. Where the inquiry results in a finding that the respondent candidate did in fact commit the acts complained, COMELEC shall order the disqualification of the respondent candidate from continuing as such candidate. (2) Complaint not resolved before election – COMELEC may motu propio or on motion of any of the parties refer the complaint to the Law Department of the Commission. (3) Complaint filed after election and proclamation of winner – The complaint shall be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department. (4) Complaint filed after election but before proclamation of winner – The complaint shall be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department. If the Law Department make a prima facie finding of guilt and the corresponding information has been filed with the trial court, the complainant may file a petition for suspension of the proclamation of the respondent. (5) Submission of recommendation to Commission en banc – The Law Department shall terminate the preliminary investigation within 30 days 21

from receipt of the referral and shall submit its study, report and recommendation to the Commission en banc within 5 days from the conclusion of the preliminary investigation. If it makes a prima facie finding of guilt, it shall submit with such study the Information for filing with the appropriate court.

Bagatsing v. COMELEC There is a difference between a disqualification case filed before and after an election. Why there is a difference between a petition for disqualification filed before and after the election proceeds from the fact that before the election, the question of disqualification is raised as an issue before the electorate and those who vote for the candidate assume the risk that should said candidate be disqualified after the election, their votes would be declared stray or invalid votes. Such would not be true in the case of one filed after the electorate has already voted. The mere filing of a petition for disqualification is not a ground to suspend the proclamation of the winning candidate. In the absence of an order suspending the proclamation, the winning candidate who is sought to be disqualified is entitled to be proclaimed as a matter of law.

EFFECTS OF DISQUALIFICATION (1)

After final judgment – The candidate shall not be voted for, and the votes cast for him shall not be counted.

(2)

Before final judgment – The Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and upon motion of the complainant or any intervenor, may, during the pendency thereof, order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.

(3)

Candidate who obtained the second highest number of votes – if the candidate who obtained the highest number of votes is later disqualified, this nd does not mean that the one who obtained the 2 highest number of vote will be declared as the elective officer. o Sound public policy dictates that the public offices are filled by those who have received the highest number of votes


Chapter Four:

ELECTION CAMPAIGN AND EXPENDITURES A. CAMPAIGN AND ELECTION PROPAGANDA Election Campaign or Partisan Political Activity – an act designed to promote the election or defeat of a particular candidate or candidates to a public office. Election Period – Commences 90 days before the day of the election and ends 30 days thereafter Campaign Period 1. President, Vice-President and Senators – 90 days before the day of the election 2. Members of the House of Representatives and elective provincial, city and municipal officials – 45 days before the day of the election What does it include? 1. Forming organizations or group of persons 2. Holding political caucuses, meetings, rallies, or other similar assemblies; 3. Making speeches or commentaries; and 4. Publishing or distributing campaign literature or materials for the purposes of soliciting votes and/or undertaking any campaign or propaganda to support or oppose the election of any candidate. What it DOES NOT include? 1. Public expressions of opinions or discussions of probable issues in a forthcoming election; 2. Attributes or criticisms of probable candidates proposed to be nominated in a forthcoming political party convention. PROHIBITED ACTS 1. It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity, except during the campaign period. 2. It shall be unlawful for any foreigner, whether juridical or natural person, to aid any candidate or political party, directly or indirectly, or take part in or influence in any manner any election, or to contribute or make any expenditure in connection with any election campaign or partisan political activity.

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3. It shall be unlawful for any person during the campaign period to remove, destroy, obliterate, or in any manner deface or tamper with, or prevent the distribution of lawful election propaganda. 4. It shall be unlawful for any candidate, political party, organization, or any person to give or accept, free or charge, directly or indirectly, transportation, food or drinks or things of value during the 5 hours before and after a public meeting, on the day preceding the election, and on the day of the election; or to give or contribute, directly or indirectly, money or things of value for such purpose. LAWFUL ELECTION PROPAGANDA 1. Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of a size not more than 8 ½ inches in width and 14 inches in length. 2. Handwritten or printed letter urging voters to vote for or against any particular political party or candidate; 3. Cloth, paper or cardboard posters, whether framed or posted, with an area not exceeding 2x3 feet; Except: At the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding 3x8 feet in size shall be allowed. However, said streamers may not be displayed except one week before the date of meeting or rally that it shall be removed within 72 hours after said meeting or rally; or 4. All other forms of election propaganda not prohibited by the Omnibus Election Code as the COMELEC may authorize after due notice to all interested parties and hearing where all the interested parties were given an opportunity to be heard. The Commission‟s authorization shall be published in two newspapers of general circulation throughout the nation for at least twice within one week after authorization has been granted. REQUIREMENTS FOR PUBLISHED OR PRINTED ELECTION PROPAGANDA 1. Any newspaper, newsletter, newsweekly, gazette or magazine and advertising, posters, pamphlets, circulars, handbills, bumper stickers, streamers, sample list of candidates or any published or printed political matter for or against a candidate or group of candidates to any public offices shall be bear and be identified by the word “paid for by” followed by the true and correct name and address of the payor and by the words “printed by” followed by the true and correct name and addresses of the printer.


2. If the broadcast is given free of charge, it shall be identified by the words “airtime for this broadcast was provided free of charge by” followed by the true and correct name and address of the broadcast entity. 3. Print, broadcast, or outdoor advertisements donated to the candidate or political party shall not be printed, published, broadcast or exhibited without the written acceptance by the said candidate or political party. ELECTION SURVEYS Elections surveys – measurement of opinions and perceptions of the voters as regards a candidate‟s popularity, qualifications, platforms or a matter of public discussion in relation to the election. -

Surveys affecting national shall not be published 15 days before an election and surveys affecting local candidates shall not be published 7 days before an election.

EQUAL ACCESS TO MEDIA TIME AND SPACE All registered parties and bona fide candidates shall have equal access to media time and space. 1. Print advertisements – Not exceed ¼ page in broadsheet and ½ page in tabloids, 3x a week per newspaper, magazine or other publications 2. TV and radio advertisements – Not more than 120 minutes for TV and 180 minutes for radio whether by purchase or donation (national candidates and registered political parties) 3. TV and radio advertisements – Not more than 60 minutes for TV and 90 minutes for radio whether by purchase or donation (local candidates and registered political parties) 4. All mass media entities shall furnish the COMELEC with a copy of all contracts for advertising within 5 days after its signing. 5. No franchise or permit to operate a radio or television station shall be granted or issued, suspended or cancelled during the election period. 6. The COMELEC shall ensure that radio or television or cable television broadcasting entities shall not allow the scheduling of any program or permit any sponsor to manifestly favor or oppose any candidate or political party. However, in all instances the right of said broadcast entities to air accounts of significant news or news worthy events and view on matters of public interest. 7. All members of media, television, radio, or print shall scrupulously report and interpret the news, taking care not to suppress essential facts nor to distort the truth by omission or improper emphasis.

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8. Any mass media columnist, commentator, announcer, reporter, on-air correspondent or personality who is a candidate for any elective public office or is a campaign volunteer for or employed or retained in any capacity by any candidate or political party shall be deemed resigned, if so required by their employer, or shall take a leave of absence from his/her work as such during the campaign period. 9. No movie, cinematograph or documentary portraying the life or biography of a candidate shall be publicly exhibited during the campaign period. 10. No movie, cinematograph or documentary portrayed by an actor or movie personality who is himself a candidate shall likewise be publicly exhibited during the campaign period. NOTE: Right to Reply – All registered parties and bona fide candidates shall have the right to reply to charges published against them. The reply shall be given publicly by the newspaper, television and/or radio station which first printed or aired the charges with the same prominence or in the same page or section or in the same time slot as the first statement. AFFIRMATIVE ACTION BY THE COMELEC 1. COMELEC shall procure the print space upon payment of just compensation from at least 3 national newspapers of general circulation wherein candidates for national office can announce their candidacies free of charge equally and impartially. 2. COMELEC shall procure free airtime from at least 3 national television networks and 3 national radio networks free of charge equally and impartially among all candidates for national office. 3. COMELEC may require national television and radio networks to sponsor at least 3 national debates among presidential candidates and at least 1 national debate among vice-presidential candidates. 4. COMELEC shall promulgate rules and regulations for holding such debates. REGULATION OF ELECTION PROPAGANDA THROUGH MASS MEDIA 1. The COMELEC shall promulgate rules and regulations regarding the sale of air time for partisan political purposes during the campaign period to insure that equal time as to duration and quality is available to all candidates for the same officer or political parties at the same rates or given free of charge. 2. All contracts for advertising in any newspaper, magazine, periodical or any form of publication promoting or opposing the candidacy of any person for public office shall, before its implementation, be registered by said Election Law Reviewer (2012)

newspaper, magazine, periodical or publication with the Commission. In every case, it shall be signed by the candidate concerned or by the duly authorized representative of political party. 3. No franchise or permit to operate a radio or television station shall be granted or issued, suspended for cancelled during the election period. 4. Any radio or television station, including that owned or controlled by the government, shall give free of charge equal time and prominence to an accredited political party or its candidates if it gives free for charge air time to an accredited political party or its candidates for political purposes. 5. In all instances the COMELEC shall supervise the use and employment of press, radio and television facilities as to give candidates equal opportunities under equal circumstances to make known their qualifications and their stand on public issues within the limits set forth in the Code for election spending. RULES, MEETINGS, AND OTHER POLITICAL ACTIVITIES 1. Subject to the requirements of local ordinances on the issuances of permits, any political party supporting official candidates or any candidate individually or jointly with other aspirants may hold peaceful political rallies, meetings, and other similar activities during the campaign period. 2. Any political party or candidate shall notify the election registrar concerned of any public rally said political party or candidate intends to organize and hold in the city of municipality, and within 7 working days thereafter submit to the election registrar a statement of expenses incurred in connection therewith. COMELEC SPACE, POSTER AREA, TIME, AND INFORMATION BULLETIN 1. COMELEC SPACE – The COMELEC shall procure space in at least one newspaper of general circulation in every province or city. In the absence of said newspaper, publication shall be done in any other magazine or periodic in said province or city, wherein candidates can announce their candidacy. Said space shall be allocated, free of charge, equally and impartially by the COMELEC among all candidates within the area in which the newspaper is circulated. The use of “COMELEC space” is personal to the candidate. He cannot delegate or transfer the use to any other person. 2. The COMELEC shall designate common poster areas in strategic public places such as markets, barangay center and the like wherein candidates

24

can post, display, or exhibit election propaganda to announce further their candidacy.

-

Whenever feasible, common billboards may be installed by the COMELEC and/or non-partisan private or civic organizations which the COMELEC may authorize whenever available, after due notice and hearing, in strategic places where it may be readily seen or read, with the heaviest pedestrian and/or vehicular traffic in the city or municipality. The space in such a common poster area or billboards shall be allocated free of charge, if feasible, equitably and impartially among the candidates in the province, city, or municipality. 3. COMELEC TIME – The COMELEC shall procure radio and television time, which shall be allocated equally and impartially among the candidates within the areas of coverage of said radio and television stations. For this purpose, the franchise of all radio broadcasting and television stations are hereby amended so as to require, radio or television time, free of charge, during the period of the campaign. 4. COMELEC BULLETIN – The COMELEC shall cause the printing and supervise the dissemination of bulletins, which shall be of such size as to adequately contain the picture, bio-data and program of government of every candidate. Said bulletin shall be disseminated to the voters or displayed in such places as to give due prominence thereto. Any candidate may reprint at his expense, any “COMELEC bulletin” upon prior authority of the Commission. Said reprint shall be the exact replica of the original and shall near the name of the candidate causing the reprint and the name of the printer. PUBLIC FORUM The COMELEC shall encourage non-political, non-partisan private or civic organizations to initiate and hold in every city and municipality, public for at which all registered candidates for the same office may simultaneously and personally participate to present, explain, and/or debate in their campaign platforms and programs and other like issues. The Commission shall promulgate the rules and regulations for the holding of such to assure its non-partisan character and the equality of access thereto by all candidates. MASS MEDIA ADVERTISING FOR CANDIDATES Election Law Reviewer (2012)

-

R.A. NO. 9006 repealed Section 11(b) of R.A. No. 6646 which declares unlawful “for any newspaper, radio broadcasting or television station, or other mass media, or any person making use of the mass media to sell or to give free of charge print space or air time for campaign or other political purposes except to the Commission as provided under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator, announcement or personality who is a candidate for any elective public office shall take a leave of absence from his work as such during the campaign period.” The ban on mass media advertising for candidate was meant to prevent well-funded candidates from unfairly dominating the use of mass media through paid advertisements at the expense of candidates from less affluent strata of society.

NOTE: The experiences in the 1992, 1995 and 1998 elections have shown that the ban on media advertisement diminished the chances of unknown candidates to get elected.

National Press Club v. COMELEC The objective which animates Section 11(b) is the equalizing as far as practicable, the situations of rich and poor candidates by preventing the former from enjoying the undue advantage offered by huge campaign „war chests‟. The objective is not only a concededly legitimate one; it has also been given constitutional status by the terms of Article IX(C)(4) of the 1987 Constitution. Section 11 (b) is limited in the duration of its applicability and enforceability. By virtue of the operation of Article IX (C) (4) of the Constitution, Section 11 (b) is limited in its applicability in time to election periods. Section 11 (b) does not purport in any way to restrict the reporting by newspapers or radio or television stations of news or news worthy events relating to candidates, their qualifications, political parties and programs of government. Moreover, Section 11 (b) does not reach commentaries and expressions of belief or opinion by reporters or broadcasters or editors or commentators or columnists in respect of candidates, their qualifications, and programs and so forth, so long at least as such comments, opinions and beliefs are not in fact advertisements for particular candidates covertly paid for. In sum, Section 11 (b) is not to be read as reaching any report or commentary other coverage that, in responsible media, is not paid for by candidates for political office. Section 11 (b) as designed to cover only paid political advertisements of particular candidates. 25

The limiting impact of Section 11 (b) upon the right to free speech of the candidates themselves is not unduly repressive or unreasonable.

Adiong v COMELEC The COMELEC promulgated Res. No. 2347 w/c provides that decals and posters may only be posted on authorized posting areas – such as campaign headquarters, candidates‟ residences, common posted areas, etc. It also prohibits the exhibition of stickers and decals in mobile places such as vehicles. The regulation unduly infringes upon a citizen‟s right to free speech. There is no adequate government interest endangered that would justify the curtailment; there is no clear and present danger. It likewise strikes at the freedom of the individual to express his preference and support and sweeps too broadly invading the area of protected freedoms. It is also too loosely worded such that even posting in one‟s residence (non-candidate) or car is illegal. It infringes upon the lawful use of private property. That the law intends to equalize the playing field in favor of the poorer candidates is immaterial – as it is merely of a marginal significance.

Osmena v. COMELEC Republic Act 7056, which provides that: 1) all incumbent provincial, city and municipal officials shall hold over beyond June 30, 1992 and shall serve until their successors shall have been duly elected and qualified, 2) shortens the term or tenure of office of local officials to be elected on the 2nd Monday of November, 1992, 3) different campaign periods for Presidential, Vice-Presidential and Senatorial elections contravenes Article XVIII, Sections 2 and 5 of the 1987 Constitution which provides for the synchronization of national and local elections. The said law, on the other hand, provides for the de-synchronization of election by mandating that there be two separate elections in 1992. The term of “synchronization” in the mentioned constitutional provision was used synonymously as the phrase holding simultaneously since this is the precise intent in terminating their Office Tenure on the same day or occasion. This common termination date will synchronize future elections to once every three years. R.A. No. 7056 also violated Sec. 2, Art. XVIII of the 1987 Constitution which provides that the local official first elected under the Constitution shall serve until noon of June 30, 1992. But under Sec. 3 of RA 7056, these incumbent local Election Law Reviewer (2012)

officials shall hold over beyond June 30, 1992 and shall serve until their successors shall have been duly elected and qualified. The Supreme Court, quoting Corpus JurisSecundum, states that “it is not competent for the legislature to extend the term of officers by providing that they shall hold over until their successors are elected and qualified where the constitution has in effect or by clear implication prescribed the term and when the Constitution fixes the day on which the official term shall begin, there is no legislative authority to continue the office beyond that period, even though the successors fail to qualify within the time”. R.A. No. 7056 also violated the clear mandate of Sec. 8, Art. X of 1987 Constitution which fixed the term of office of all elective local officials, except barangay officials, to three (3) years. If the local election will be held on the second Monday of November 1992 under RA 7056, those to be elected will be serving for only two years and seven months, that is, from November 30, 1992 to June 30, 1995, not three years. The law was also held violative of Sec. 9, Article IX of the Constitution by changing the campaign period. RA 7056 provides for a different campaign period, as follows: (a) For President arid Vice-Presidential elections one hundred thirty (130) days before the day of election. (b) For Senatorial elections, ninety (90) days before the day of the election, and (c) For the election of Members of the House of Representatives and local elective provincial, city and municipal officials forty-five (45) days before the day of the elections.

Posting of campaign materials:  The COMELEC may authorize political parties and party-lost groups to erect common poster areas for their candidates in not more than 10 public places (plazas, markets, barangay centers, etc) where candidates can post, display or exhibit election propaganda.  The poster shall no exceed 12 x 16 ft. or it equivalent.  Independent candidates can also do so, poster size shall be 4 x 6 ft or its equivalent  Candidates may post any lawful propaganda on private property as long at the owner consents. Public Forum: The COMELEC shall encourage non-political, non-partisan private or civic organizations to initiate and hold in every city and municipality, public for at which all registered candidates for the same office may simultaneously and

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personally participate to present, explain, and/or debate in their campaign platforms and programs and other like issues. The Commission shall promulgate the rules and regulations for the holding of such to assure its non-partisan character and the equality of access thereto by all candidates. B. ELECTORAL CONTRIBUTIONS AND EXPENDITURES What is contribution? 

As used in the Omnibus Election Code, the term contribution includes a gift, donation, subscription, loan, advance or deposit of money or anything of value, or a contract, promise or agreement to contribute, whether or not illegally enforceable, made for the purpose of influencing the results of the elections.



It shall include the use of facilities voluntarily donated by other persons, the money value of which can assessed based on the rates prevailing in the area.

What does contribution NOT include? 

Services rendered without compensation by individuals volunteering a portion or all of their time in behalf of a candidate or political party.

Exception: They are not prohibited from making any loan to a candidate or political party if they are legally in the business of lending money, and that the loan is made in accordance with laws and regulations in the ordinary course of business; 2. Natural and juridical persons: a. Operating a public utility or in possession of or exploiting any natural resources of the nation; b. Who holds contracts or subcontracts to supply the government or any of its divisions, subdivisions or instrumentalities, with goods and services or to perform construction or other works; c. Who have been granted franchises, incentives, exemptions, allocations or similar privileges or concessions by the government or any of its divisions, subdivisions or instrumentalities, including GOCC; d. Who, within one year prior to the date of the election, have been granted loans in excess of P25,000 by the government, any of its divisions, subdivisions or instrumentalities including GOCC. 3. Educational institutions which have received grants of public funds amounting to no less than P100,000; 4. Officials or employees in the Civil Service, or members of the AFP; and 5. Foreigners and foreign corporations.

What is expenditure? What are prohibited soliciting of contributions? 



As used in the Omnibus Election Code, the term expenditure includes the payment or delivery of money or anything of value, or a contract, promise or agreement to make an expenditure for the purpose of influencing the results to the election.

1. It shall be unlawful for any person to solicit or receive any contribution from any of the person or entities enumerated above;

It shall also include the use of facilities owned by the candidate, the money value of the use of which can be assessed based on the rates prevailing in the area.

2. It shall be unlawful for any person, including a political party or public or private entity to solicit or receive, directly or indirectly, any aid or contribution of whatever form or nature from any foreign national, government or entity for the purpose of influencing the results of the election.

What are prohibited contributions? Contributions that are made, directly or indirectly by any of the following: 1. Public or private financial institutions.


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What are prohibited raising of funds? It shall be unlawful: 1. For any person to hold dances, lotteries, cockfights, games, boxing bouts, beauty contests, or other performances for the purpose of raising funds for an election campaign or for the support of any candidate from the commencement of the election period up to and including election day; or 2. For any purpose or organization, whether civic or religious, directly or indirectly, to solicit and/or accept from any candidate for public office, or from his campaign manager, agent or representative, or any person acting in their behalf, any gift, food, transportation, contribution or donation in cash or in kind from the commencement of the election period up to and including the election day.

What are prohibited donations by candidate? 

Who are prohibited: Candidate, his or her spouse or any relative within nd the 2 degree of consanguinity or affinity, or his campaign manager, agent, or representative. The prohibition applies to treasurers, agents or representatives of any political party.



When does the prohibition apply: During the campaign period, on the day before and on the day of the election.



What are EXCLUDED from prohibited donations: Direct or indirect donation, contribution or gift in cash or kind, or undertake or contribute to the construction or repair of roads, bridges, schoolhouses, puericulture centers, pavements, or any structure for public use or the use of any religious or civic organizations, such as religious stipends, titles or collections on Sundays or other designated collection days, as well as periodic payments for legitimate scholarships established and school contributions habitually made before the prohibited period.

What are excluded from the prohibitions? 

Normal and customary religious stipend, titles, or collection on Sundays and/or other designated collection days.

Statement of contributions and expenditures: 

Time for filing – Every candidate and treasurer of a political party shall, within 30 days after the day of the election, file in duplicate with the offices of the Commission, full, true and itemized statements of all contributions and expenditures in connection with the election. It shall be the duty of every city or municipal election registrar to advise in writing, by personal delivery or registered mail within 5 days from the date of election all candidates residing in his jurisdiction to comply with their obligation to file their statements of contributions and expenditures.



Effect of failure to file – No person elected to any public office shall enter upon the duties of his office until he has filed the statement of contributions and expenditures above required. The same prohibition shall apply if the political party which nominated the winning candidate fails to file the statement required within the period prescribed by the Act.

What are the LIMITATIONS upon expenses? The aggregate amount that a candidate or registered political party may spend for election campaign shall be as follows: 



For candidates – for every voter currently registered in the constituency where he filed his certificate of candidacy: a. President and Vice-President – Ten pesos; b. For other candidates – Three pesos; c. Candidate without any political party and without support from any political party – Five pesos; For political parties – Five pesos for every voter current registered in the constituency or constituencies where it has official candidates.

Any provision of law to the contrary notwithstanding, any contribution in cash or in kind to any candidate or political party or coalition of parties for campaign purposes, duly reported to the Commission shall not be subject to the payment of any gift tax.


o

Administrative fine ranging from P1,000 to P30,000 in the discretion of the Commission, EXCEPT candidates for elective barangay office.

o

The fine shall be paid within 30 days from receipt of notice of such failure; otherwise, it shall enforceable by a writ of execution issued by the Commission against the properties of the offender; 28

 o

For the commission of a second or subsequent offense, the administrative fine shall be from P2,000 to P60,000, in the discretion of the Commission. In addition, the offender shall be subject to perpetual disqualification to hold public office.

The COMELEC shall require publication of the petition for registration or accreditation in at least three newspapers of general circulation and shall, after due notice and hearing, resolve the petition within 15 days from the date it is submitted for decision.

Nomination and Selection of official candidates: C. POLITICAL PARTIES  What is the meaning of political party under the Code? 



Political party or party means an organized group of persons pursuing the same ideology, political ideas or platforms of government and includes its branches and divisions. This requires that the group be joined in a party corporate, articulate with the attributes of social personality, set of by-laws, rules, or charter, or agreement as to how the group shall function, be presided over and express its collective will. A political party may refer to a local regional or national party existing and duly registered and accredited by the COMELEC.

Registration of political parties:

No political convention or meeting for the nomination or election of the official candidates of any political party or organization or political groups or coalition thereof shall be held earlier than the following periods: o

For President, Vice-President, and Senators – 165 days before the day of the election; and

o

For members of the House of Representatives and elective provincial, city or municipal official – 75 days before the day of the election

Disputes as to party nominations:  Decision as to which member shall be nominated as its candidate  a party concern; not cognizable by courts



To acquire juridical personality, qualify it for subsequent accreditation, and entitle it to right and privileges granted to political parties, a political party shall first be duly registered with the COMELEC.



A political party has the right to identify the people who constitute the association and to select a standard bearer who represents their ideologies and preference



Any registered political party that, singly or in coalition with other, fails to obtain at least 10% of the votes cast in the Constituency in which it nominated and supported a candidate or candidates in the election next following its registration shall, after notice and hearing, be deemed to have forfeited such status as a registered political party in such Constituency.



Political parties are free to conduct their internal affairs free from judicial supervision (judicial restraint)



No controlling statute or clear legal right = no jurisdiction of the court but can leave the matter to the proper tribunals of the party itself or to the electorate



In determining whether an irregularity in nomination of a winning candidate prevented the free expression of public will, it must appear that noncompliance with the law did not prevent a fair and free vote.





Any organized group of persons seeking registration as a national or regional political party may file with the COMELEC a verified petition attaching thereto its Constitution and by-laws, platforms or program of government and such other relevant information as may be required by the Commission. The Commission shall after due notice and hearing, resolve the petition within 10 days from the date it is submitted for decision. No religious sect shall be registered as a political party and no political party which seeks to achieve its goal through violence shall be entitled to accreditation.


Intra-party leadership and membership disputes: 

COMELEC may intervene only to exercise its constitutional powers (incident to its power to register political parties)

29



o

Ascertain identity of political party and it legitimate officers responsible for it acts

i. National party – when its constituency is spread over the geographical territory of at least a majority of the regions.

o

Register political parties  determine who may act on its behalf

ii. Regional party – when its constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising the region.

COMELEC can‟t intervene in the expulsion of a member

The party-list system 





Constitutional provision – Section 5(1) of Article VI of the Constitution: “The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations.” Implementing law – RA 7941: Provides for the election of party-list representatives through the party-list system and requires the Commission to undertake various activities within the prescribed periods which activities are difficult to accomplish within the periods prescribed therein.



o

Sectoral party – organized group of citizens belonging to any of the sectors enumerated in Section 2 of the Act hereof whose principal advocacy pertains to the special interests and concerns of their sector.

o

Sectoral organization – a group of citizens or a coalition of groups of citizens who share similar physical attributes or characteristics, employment, interests or concerns.

o

Coalition –aggrupation of duly registered, national, regional, sectoral parties or organizations for political and/or election purposes.

Registration – Under COMELEC Resolution No. 2847 (June 25, 1996) o

Any organized group of persons desiring to participate in the party-list systems as a national, regional or sectoral party or organization or a coalition of such parties or organizations may register as a party, organization, or coalition, by filing with the Commission, not later than 180 days before the election, a petition verified by its president or secretary, attaching thereto its Constitution, by-laws, platforms or program of government, list of officers, coalition agreement and other relevant information as the Commission may require.

o

The sectors shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals.

Definition of terms – Under RA 7941: o

o o

Party-list system – mechanism of proportional representation in the election of representatives to the House of Representative from national, regional, and sectoral parties, organizations and coalitions thereof registered with the COMELEC. Component parties or organizations of a coalition may participate independently provided the coalition of which they from part does not participate in the party-list system. Party – either a political party or sectoral party or a coalition of parties, Political party – organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption regularly nominates and supports certain of its leaders and members as candidates for public office.




Petition and manifestation; filing fee – Every petition or manifestation shall be filed by any authorized representative of the political or sectoral party, organization, coalition thereof with any of the following offices of the Commission: o

Law department – if the petition involves national Constituency; or 30

o

5. It violates or fails to comply with laws, rules or regulations relating to elections; 6. It declares untruthful statements in its petition; 7. It has ceased to exist for at least 1 year; or 8. It fails to participate in the last 2 preceding elections for the Constituency in which it was registered.

The Office of the Regional Election Director – regional Constituency.

No petition or manifestation shall be accepted without a filing fee of P1000 and a research fee of P20. 

Procedure: o

o





Upon receipt of the petition, the Law Department or the Regional Election Director, as the case may be, shall determine whether the petition is in due form and substance and thereafter shall verify the existence of the petitioner in the Constituency and all matters required, and within 7 days after such inquiry, submit the petition and its supporting documents, filing fee, together with his findings and recommendations to the Commission, through the Law Department;



Certified list of registered parties – The Commission shall, not later than 15 days before election, prepare a certified list of national, regional, or sectoral parties, organizations or coalition which have applied or manifested their desire to participate under the party list system and distribute copies thereof to all precincts for posting in the polling places on election day. The names of the party-list nominees shall not be shown on the certified list.



Nomination of party-list representative – Each registered party, organization, or coalition shall submit to the Commission not later than 90 days before the election a list of names, not less than 5, from which partylist representative shall be chosen in case it obtains the required number of votes.



Limitations of party-list nominations:

The Commission shall, after due notice and hearing, resolve the petition within 15 days from the date it was submitted for decision but not later than 90 days before the election day.

Manifestation to participate in the party-list system – Any party, organization, or coalition already registered with the Commission need not register anew. However, such party organization or coalition shall file with the Commission, not later than 90 days before the election, a manifestation of its desire to participate in the party-list system. Removal and/or cancellation of registration – Any Commission may motuproprio or upon verified complaint of any interested party, remove or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition on any of the following grounds: 1. It is a religious sect or denomination, organization or association organized for religious purposes; 2. It advocates violence or unlawful means to seek its goal; 3. It is a foreign party or organization; 4. It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or member or indirectly through third parties for partisan election purposes;


o

A party may be nominated by one party, organization/coalition in one list only. Any person giving consent to be nominated more than once shall be disqualified.

o

Only persons who have given their consent in writing may be named in the list;

o

The list shall not include any candidate for any elective office in the same election or a person who has not lost his bid for an elective office in the immediately preceding elections;

o

No change of name or alteration in the order of nominees shall be allowed after the same has been submitted to the Commission EXCEPT in cases where the nominee dies, his nomination is withdrawn in writing and under oath, or become incapacitated, in which case the name of the substitute nominee shall be placed last in the list; and

31

o







Incumbent sectoral representatives in the House of Representatives who are nominated in the party-list system shall not be considered resigned.

Qualifications of party-list nominees: 1. A natural-born citizen of the Philippines; 2. A registered voter; 3. A resident of the Philippines for a period of not less than one year immediately preceding the day of the election; 4. Able to read and write; 5. A bona fide member of the party or organization which he seeks to represent for at least 90 days preceding the day of the election; and 6. At least 25 years of age on the day of the election. In a case of a nominee of the youth sector, he must at least be 25 but not more than 30 years of age on the day of the election. Any youth sectoral representative who attains the age of 30 during his term shall be allowed to continue in the office until the expiration of his term. Manner of voting – Every voter shall be entitled to 2 votes. The first is a vote for the candidate for member of the House of Representatives in his legislative district, and the second, a vote for the party, organization or coalition he wants represented in the House of Representatives. A vote cast for a party, sectoral organization, or coalition not entitled to be voted shall not be counted. Number of party-list representative – The party-list representatives shall Constitute 20% of the total number of the members of the House of Representative including those under the party-list.

total number of vote. However, each party, organization or coalition shall be entitled to not more than 3 seats. 

Procedure in allocating seats fir party-list representatives – The Commission shall tally all the votes for the parties, organizations, and coalitions on a nationwide basis, rank them according to the number of votes received and allocate a party-list representatives proportionately according to the percentage of votes obtained by each party, organization, and coalition as against the total nationwide votes cast for the party-list system.



How party-list representatives are chosen – According to their ranking in said list.



Term of office – they shall serve for a term of 3 years which shall begin, th unless otherwise provided for by law, at noon on the 30 day of June next following their election. No party-list representative shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term.



Change of affiliation;effect – any selected party-list representative who changes his political party or sectoral affiliation during his term of office shall forfeit his seat. If he changes his political or sectoral affiliation within 6 months before an election, he shall not be eligible for nomination as party-list representative under his new party or organization.



Vacancy – the vacancy shall automatically filled by the next representative from the list of nominees in the order submitted to the Commission by the same party, organization, or coalition, such representative shall serve for the unexpired term. If the list is exhauster, the party, organization, or coalition shall submit additional nominees.



Rights of party-list representatives – entitled to the same salaries and emoluments as the regular members of the House of Representative.



Governing laws; other matters – for purposes of the election of Members of the House of Representative under the party-list system and other matters in connection therewith which are not provided in the Act, the relevant provisions of the Omnibus Election Code, as amended, shall apply.

In determining the allocation of seats for the second vote, the following procedures shall be observed: 



The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections; and The parties, organizations receiving at least 2% of the total votes cast for the party-list system shall be entitled to one seat. Those garnering more than 2% of the votes shall be entitled to additional seats in proportion to their


32

Chapter Five Ang Bagong Bayani v. COMELEC

THE ELECTION

SC laid down the following guidelines for screening party-list participants. 1. The political party, sector, organization or coalition must represent the marginalized and underrepresented groups identified in Section 5 of RA 7941. In other words, it must show ¾ through its constitution, articles of incorporation, bylaws, history, platform of government and track record¾ that it represents and seeks to uplift marginalized and underrepresented sectors. Verily, majority of its membership should belong to the marginalized and underrepresented. And it must demonstrate that in a conflict of interests, it has chosen or is likely to choose the interest of such sectors. 2. While even major political parties are expressly allowed by RA 7941 and the Constitution to participate in the party-list system, they must comply with the declared statutory policy of enabling “Filipino citizens belonging to marginalized and underrepresented sectors x xx to be elected to the House of Representatives.” In other words, while they are not disqualified merely on the ground that they are political parties, they must show, however, that they represent the interests of the marginalized and underrepresented. 3. The religious sector may not be represented in the party-list system. 4. A party or an organization must not be disqualified under Section 6 of RA 7941. 5. The party or organization must not be an adjunct of, or a project organized or an entity funded or assisted by, the government. 6. The party must not only comply with the requirements of the law; its nominees must likewise do so. 7. Not only the candidate party or organization must represent marginalized and underrepresented sectors; so also must its nominees. To repeat, under Section 2 of RA 7941, the nominees must be Filipino citizens “who belong to marginalized and underrepresented sectors, organizations and parties.” 8. As previously discussed, while lacking a well-defined political constituency, the nominee must likewise be able to contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole.”


PRELIMINARY CONSIDERATIONS Election – the embodiment of the popular will, the expression of the sovereign will of the people in the choice or selection of candidates to public office for definite and fixed periods or in deciding some question of public interest In the context of the Constitution: the conduct of the polls including the listing of voter, the holding of the electoral campaign, and the casting and counting of the votes; it involves every element necessary to the complete ascertainment of the expression of the popular will from the deposit of the ballot by the voter up to the final certification of the result KINDS OF ELECTION 1. GENERAL ELECTION – for the election of offices throughout the state or certain subdivisions thereof, after the expiration of the full term of the former officers. 2. REGULAR ELECTION – an election, national or local, held at regular intervals on such dates provided by law 3. SPECIAL ELECTION – under special circumstances; Held to fill vacancy in office before the expiration of the full term for which the incumbent was elected, or an election at which some issue or proposition is submitted to the vote of the qualified electors. PURPOSE OF ELECTION To give the people a direct participation in the affairs of this government; it is essential that all of the legal voters be permitted to cast their ballots CONSTRUCTION OF ELECTION LAWS 

Adopted to assist the voters in the participation in the affairs of government and not to defeat that object; these laws are mandatory before the election



After election, they are directory only, if possible, specially if making them mandatory would cause voters to be deprived on their votes without any fault on their part 33



If the law says that a certain irregularity causes the ballot to be invalid, provision is mandatory



If such departure from the laws in due to an honest mistake or misinterpretation of election law, the law is directory and departure is a harmless irregularity



Statutes providing for election contests are to be liberally construed to the end that the will of the people in the choice of public officers may not be defeated by mere technical objections

condition precedent; there must be substantial compliance to fairly and reasonably say that the purpose of the statute has been carried out 

DATE OF ELECTION UNDER THE LAW 

In accordance with the Constitutional policy to synchronize elections so that there shall be simultaneous regular elections for national and local officials every three years;



Ra 7166 – provided for an election for president, vice-president, 24 senators, all elective members of the House of Rep., and at elective provincial, city and municipal officials on the second Monday of May, 1992. Thereafter, the President, vice shall be elected on the same day every 6 years;



Same – while senators, members of the house and all elective provincial, city and municipal official shall be elected on the same say every three years, except that with respect to senators, only 12 shall be elected;



Barangay officials – shall have a term of five years; elected on second Monday of May 1994; shall be elected every five years thereafter.

AUTHORITY FOR HOLDING ELECTION 

In order to hold a valid election, authority so to hold it must be found conferred by the people, either directly through the Constitution which they have themselves ordained, or indirectly, through the enactment of their legal representatives, the legislature.

Sufficiency of notice  determined on whether the voters generally have knowledge of the time, place and purpose of the elections so as to give them full opportunity to attend the polls and express their will

TIME OF HOLDING ELECTION 

Such time must be fixed by authoritative power;



Either the people in their Constitution and laws in the case of regular elections of the executive or other designated power in the case of special elections;





Enactments declaring the time at which an election shall be held are deemed to be matters of substance and must be substantially observed or the election will be void. Substantial observance is sufficient and slight variation will not invalidate the election. (e.g. closing the polls a few minutes or an hour before time fixed, will not invalidate where no one offered to vote after the polls were closed).

NOTICE OF ELECTION 

Essential to the validity of the election; actual or constructive notice as to the time, place and purpose



Substantial compliance with notice requirement  Stricter in cases of special elections called by some authority after the happening of a


POSTPONEMENT OF ELECTION 

For any serious cause such as 1. Violence 2. Terrorism 3. Loss or destruction of election paraphernalia or records 4. Force majeure 5. Other analogous causes of such nature 6. That the holding of a free, orderly and honest election should become impossible in any political subdivision 7. The Commission may motuproprio or upon a verified petition postpones the election. 8. The commission shall fix a new election to a date which should be reasonably close to the date of the election not held, suspended or which resulted in a failure;

34

9. The date should be set not later than thirty days after the cessation of the cause for such postponement or suspension of the election or failure to select.



The comelec may election the power to declare a failure of elections MUTO PROPRIO OR UPON A VERIFIED PETITION.



The hearing of the case shall be SUMMARY IN NATURE.

FAILURE OF ELECTION FIXING THE DATE FOR SPECIAL ELECTIONS 

THERE ARE ONLY THREE INSTANCES WHEN A FAILURE OF ELECTION MAY BE DECLARED:



If on account of force majeure, violence, terrorism, fraud, or other analogous causes: 1. The election is any polling place has not been held on the date fixed; 2. Had been suspended before the hour fixed by law for the closing of the voting; 3. After the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election;



…The comelec shall, on the basis of a verified petitioner by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held…but shall not be later that 30 days after the cessation of the election or failure to elect.

BEFORE THE COMMISSION CAN ACT ON A VERIFIED PETITIONER SEEKING TO DECLARE A FAILURE OF ELECTION, THREE CONDITIONS MUST CONCURR: 1. No voting has taken place or even of there was voting, the election nevertheless results in failure to elect; 2. The votes not cast would affect the result of the election; 3. The cause of such failure of election should have been force majeure, violence, terrorism, fraud or other analogous causes. 

The third condition is an important consideration for where the property of a pre-proclamation controversy ends, there may begin the realm of a special action for declaration of failure of elections.




“result of election”  the net result of the election in the rest of the precincts in a given constituency, such that if the margin of a leading candidate over that of his closest rival in the latter precincts is less than the total number of votes in the precinct where there was a failure of election, then such failure would certainly affect the result of the election, hence a special election must be held.



Requirements as to date o

Should not be later than 30 days after the cessation of the cause of the postponement or suspension of the election or the failure to elect

o

Should be reasonably close to the date of the election not held, suspended or which resulted in a failure to elect

PLACE OF HOLDING ELECTION 

That the place of holding the election shall be fixed, either by the general law or by the proclamation or notice by which the election is called;



Enactments fixing the place of holding the election are properly to be regarded as mandatory, and any substantial variation must invalidate the election.

HOLDING OF ELECTION BY PROPER OFFICERS 

That they shall be conducted by certain officers, elected or chosen by certain methods, and that the result shall be ascertained and published in a manner prescribed.



Regulations of this nature are indispensable to the orderly and efficient conduct of the election, and an election held by persons without any color of authority to do so, or without any attempt to observe the methods prescribed, is invalid;

35

What is the BOARD OF ELECTION INSPECTORS? 

3. Identifiable political organizations and strengths as evidenced by their organized chapters; 4. Ability to fill a completer slate of candidates from municipal level to president; 5. Other analogous circumstances that may determine their relative organizations and strengths.

Is the body which conducts the election in the polling place of the precinct usually composed of 3 public school teachers appointed by the comelec.

MANNER OF HOLDING ELECTIONS 

That the manner prescribed is intended simply to secure the correct result, and that the manner is clearly subservient to the result;



In elections the great matter is the result. When this is clearly ascertained, it sweeps away all technicalities;

A.

CASTING OF VOTES

METHOD OF VOTING



The machinery provided should be observed, but in so far as it is not necessary to determine the result, it is directory and mandatory;



In pursuance of this idea, therefore, it is generally held that the regulations prescribed are directory merely, and that a failure to observe them fully will not invalidate the election, where an election has been held in good faith and the irregularities do not affect the result;



Where a special election is provided for, but no method of holding it is declared, it will be sufficient if held in the method prescribed for holding general elections.

1. 2. 3. 4.

Voter must vote in person Voter must vote only once Voter need not vote the whole ticket Absentee voting – RA 7166 – For president, vice-president and senators only and shall be limited to AFP and PNP and other government officers and employees who are duly registered voters and who, on election day may temporarily be assigned in connection with the performance of election duties to places were they are not registered voters.

VOTING HOURS 

OFFICIAL WATCHERS 

Every political party or coalition of political parties, and every candidate shall be each entitled to one watchers in every polling place and canvassing center;



Those belonging to the same political slate or ticker shall collectively be entitled to only one watcher – Panlalawigan, Panglungsod and bayan



There shall be 6 principal watchers, representing 6 accredited major political parties, who shall be designated by the comelec upon nomination;



The political parties shall be determined by the comelec on the basis of the following circumstances: 1. Established record of the said parties; their showing in the past elections; 2. Number of incumbent elective officials belonging to them 90 days before date of election;


Starts at 7am and ends at 3pm, except when there are voters present within 30 meters in front of the polling place who have not yet cast their votes, in which case the voting shall continue but only to allow said voters to cast their votes without interruption.

MANNER OF PREPARING THE BALLOT 

Voter can‟t speak to anyone inside polling place



It is unlawful to prepare the ballot outside the voting booth or to show its contents to any person or to erase any printing from the ballot or intentionally tear or deface the same or put any distinguishing mark



Note: the May 10, 2010 automated elections required a bigger ballot because of the number of national candidates (78) and party-lists (187)



The voter may voluntarily disclose the contents of his ballot.

36

PREPARATION OF BALLOTS FOR ILLITERATES AND DISABLED 



A voter who is illiterate or physically unable to prepare the allot by himself may be assisted in the preparation of his ballot by a relative by affinity or th consanguinity within the 4 civil degree; or if none, By any person of his confidence who belongs to the same household or any member of the board of election inspectors, except the two party members;



No voter shall be allowed to vote as illiterate or physically disabled unless it is so indicated in his registration record;



In no case shall an assistor assist more than 3 times except the non-party member of the boards of election inspectors.

SPOILED BALLOTS 

If a voter accidentally spoil or deface a ballot in such a way that it cannot lawfully be used, he shall surrender it folded to the chairman who shall note in the corresponding space in the voting record that said ballot which the chairman shall give him after announcing the serial number of the second ballot and recording said serial number of the second ballot and recording said serial number of the second ballot and recording said serial number in the corresponding spaces in the voting record;



No voters shall be change his ballot more than twice;



The spoiled ballot shall, without being unfounded and without removing the detachable coupon, be distinctly marked with the word “spoiled” and signed by the board of election inspectors or the indorsement fold thereof and immediately placed in the compartment for spoiled ballots.

BALLOT IMPLIES SECRECY 

The idea of secret ballots lies at the very foundation of our system of popular elections, and the courts are zealous in securing its protection.



It is settled that a legal voter will not be compelled to disclose for whom he voted;



Not only will the legal voter not be compelled to disclose it for whom he voted, but, unless he has himself made the contents of his ballots public at


the time of voting it, third persons will not be permitted to testify as to its purport; 

But although the legal voter cannot be compelled to disclose how he voted, he may, if he chooses, waive his privilege of secrecy, and voluntarily disclose the contents of his ballot.

VOTERS IN CITIES 

Registered voters of highly urbanized city shall not vote in the election for provincial officials of the province in which it is located;



No component city shall be declared or classified as a highly urbanized city within 60 days prior to a local election;



The registered voter s of a component city shall be entitled to vote in the election for provincial officials of the province to which it is a part, unless its charter provides otherwise.

ABS-CBN v. COMELEC An exit poll is a species of electoral survey conducted by qualified individuals or groups of individuals for the purpose of determining the probable result of an election by confidentially asking randomly selected voters whom they have voted for, immediately after they have officially cast their ballots. The results of the survey are announced to the public, usually through the mass media, to give an advance overview of how, in the opinion of the polling individuals or organizations, the electorate voted. In our electoral history, exit polls had not been resorted to until the recent May 11, 1998 elections. The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification. Thus, voters are prohibited from exhibiting the contents of their official ballots to other persons, from making copies thereof, or from putting distinguishing marks thereon so as to be identified. Also proscribed is finding out the contents of the ballots cast by particular voters or disclosing those of disabled or illiterate voters who have been assisted. Clearly, what is forbidden is the association of voters with their respective votes, for the purpose of assuring that the votes have been cast in accordance with the instructions of a third party. This result cannot, however, be achieved merely through the voters' verbal and confidential disclosure to a pollster of whom they have voted for.

37

o o o o o o o

VOTING 

After filling the ballot, the voter shall fold it in the same manner he received it.



He shall affix his thumbmark on the space in the coupon and deliver the ballot to the chairman of the board of election inspectors.



The chairman shall verify its number from the voting record where it was previously entered.



The chairman shall apply silver nitrate and commassie blue (indelible ink) on the right forefinger nail or on any other available finger nail, if there be no forefinger nail.



The chairman shall sign in the proper space beside the thumbmark of the voter. Signature is mandatory.



The chairman will then detach the coupon and deposit the folded ballot in the compartment for valid ballots.

o

has received or expects to receive; had paid offered or promised to pay, has contributed, offered or promised to contribute money, or anything of value as consideration for his vote or for the vote of another that he has made or received a promise to influence the giving or withholding of any such voter or that he has made a bet or is interested directly or indirectly in a bet which depends upon the result of the election. The challenged shall take an oath before the board of election inspections; upon taking of such oath, the challenge shall be dismissed and the challenged voter shall be allowed to vote, but in case of his refusal to take such oath, the challenged shall be sustained and he shall not be allowed to vote.

RECORDS OR STATEMENTS TO BE PREPARED AND KEPT 

Record of challenges and voters  The poll clerk shall keep a prescribed record of challenges and oath taken in connection therewith and the resolution of the board of election inspectors in each case and, upon the termination of the voting, shall certify hat it contains all the challenges made; this shall be attached to the original copy of the minutes of the voting.



Minutes of voting and counting of votes  the board of election inspectors shall prepare and sign a statement in four copies setting forth the matter required by the Code.

CHALLENGE OF ILLEGAL VOTERS 

Any voter or watcher may challenge any person of offering to vote for: o Not being registered o Using name of another o Not suffering from existing disqualification o In such case the board of election inspectors shall satisfy themselves as to whether or not the ground for the challenge is true by requiring proof of registration or the identity of the voter.

o 

No voter shall be required to present his voter‟s affidavit on election day unless his identity is challenged;



His failure or inability to produce his voter‟s affidavit upon being challenged, shall not preclude him from voting if his identity be shown from the photograph, fingerprints, etc. or if identified under oath by a member of the board of election inspectors.



Copies of this statement after being duly accomplished shall be sealed in separate envelopes and shall be distributed to the election registrar, in the compartment for valid ballots of the ballot box, to representatives f the accredited political parties.

List of unused ballots  The chairman shall prepare a list showing the number of unused ballots together with serial numbers

CHALLENGE BASED ON CERTAIN ILLEGAL ACTS 

Any voter or watcher may challenge any voter offering to vote on the ground that the challenged person


38

B.

COUNTING OF VOTES OF BOARD OF



The board of election inspectors shall determine whether there are marked ballots, and, if any be found, the shall be placed in an envelope labeled marked ballots, which shall be sealed and signed – shall not be counted;

The comelec shall, directly or through its fully authorized representatives, Constitute a board of election inspectors for each precinct to be composed of a chairman and a poll clerk who must be public school teachers;



A majority of the board of election inspectors shall be sufficient to determine whether any ballot is marked or not;



Evidence alliunde is not allowed to prove that a ballot is marked; an inspection of ballot sufficient



The comelec need not conduct an adversarial proceeding or a hearing to determine the authenticity of the ballots or the hadwriting …

CONSTITUTION, COMPOSITION ELECTION INSPECTORS 

DETERMINATION OF MARKED BALLOTS

AND

APPOINTMENT



Done at least 30 days before the date when the voters list is to be prepared, in case of a regular election of fifteen days before a special election;



The members of the board of election inspectors, whether permanent, substitute or temporary, shall, before assuming their office, take and sign an oath.

POWERS OF THE BOARD OS ELECTION INSPECTORS

PURPOSE OF DISALLOWING MARKED BALLOTS 

It is a well-settled rule in election contests that marks which shall be considered sufficient to invalidate the ballot are those which the voter himself deliberately placed in his ballot for the purpose of identifying it thereafter;



Only in an unmistakable case where the ballot appeared to marked, should it be rejected. In the absence of evidence alliunde clearly showing that the intention or plan was for purposes of identification, signs on ballots are presumed accidental.

1. Conduct the voting and counting of votes 2. Act as deputies of the comelec in the supervision and control of the election, to assure the holding of the same in a free, orderly and honest manner; 3. Perform such other functions prescribed by the code or the rules and regulations promulgated by the commission.

INSTANCES OF MARKED BALLOTS COUNTING TO BE PUBLIC AND WITHOUT INTERRUPTION 

As soon as the voting is finished, the board of election inspectors shall publicly count in the polling place the votes cast and ascertain the results.



The board of election inspectors shall not adjourn or postpone or delay the count until it has been fully completed, unless otherwise ordered by the comelec;



The comelec may order the board of election inspectors to count the votes and to accomplish the election returns and other forms prescribed under the code in any other place within a public building in the same municipality or city;




The determinative factor in the nullification of ballots for being marked as following a design or pattern, is the existence of evidence aliunde tending to show the intention or purpose in the use of the contested manner or means of point, which is to identify the ballots.



Instances where ballots not considered marked  No ballot should be declared null and void as marked unless there are clear and sufficient reasons to justify such conclusion. The rule is in favor of the validity of the ballot.

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

MANNER OF COUNTING VOTES 

The board of election inspectors (BEI) shall unfold the ballots and form separate piles of one hundred ballots each, held together with rubber bands and cardboards the size to serve as folders.

Note: In the May 10, 2010 automated elections, the PCOS machines automatically counted the votes, printed copies of election returns and then transmitted the results to the canvassing ceters.

NUMBER OF COPIES OF ELECTION RETURNS AND THEIR DISTRIBUTION



The BEI and chairman shall one by one read the names of candidates voted for and the offices for which they were voted in assuming a position as to enable all watchers to read such names.



Board of election inspectors shall prepare in handwriting the election returns in their respective polling place, in the number of copies provided and in the form to be prescribed and provided by the constitution



The chairman shall sign and affix his right hand thumbmark at the back of the ballot immediately after it is counted.



ELECTION RETURNS – refers to the tally of votes counted at each precinct and sent to the city or municipal board of canvassers



Poll clerk and the 3 member shall record on the election returns and tally board the names voted for each of the offices





Each vote corresponds to a vertical line, every 5 vote shall be recorded using a diagonal crossing the 4 lines. BEI members shall watch over the chairman reading the votes and on the member tallying.



In case of discrepancy after every pile of 100 ballots, a recount shall be made if necessary.



Ballots are grouped together again.



After all piles have been read, the sum shall be recorded both on the tally board and on the election returns.



The counted ballots shall be placed in an envelope provided for the purpose, closed, signed and deposited in the compartment for valid ballots.



The tall board or sheet as accomplished and certified by the BEI shall not be changed or destroyed.

In the election of President, Vice-president, Senators and party-list system copies of the election returns shall be distributed as follows: (Sec 19. RA 9369) st o 1 copy shall be delivered to the city or municipal board of canvassers; nd o 2 copy, to the congress, directed to the President of the Senate; rd o 3 copy, to the COMELEC; th o 4 copy, to the citizen's arm authorized by the COMELEC to conduct an unofficial count th o 5 copy, to the dominant majority party as determined by the COMELEC in accordance with law; th o 6 copy, to the dominant minority party as determined by the Commission in accordance with law; and th o 7 copy shall be deposited inside the compartment of the ballot box for valid ballots. th o 8 copy to the Provincial Board of canvassers; th th o 9 to the 18 copies, shall be given to the 10 accredited major national parties, excluding the dominant majority and minority parties, in accordance with a voluntary agreement among them. If no such agreement is reached, the Commission shall decide which parties shall receive the copies on the basis of the criteria provided in Section 26 of Republic Act No. 7166; th th o 19 and 20 copies, to the 2 accredited major local parties in accordance with a voluntary agreement among them. If no such agreement is reached, the commission shall decide which parties shall receive the copies on the basis of criteria analogous to that provided in Section 26 of Republic Act No. 7166; st th o 21 to the 24 copies, to national broadcast or print media entities as may be equitably determined by the Commission in view of propagating the copies to the widest extent possible;

rd

th

OTHER REQUIREMENTS ON COUNTING VOTES 

While tallying, the table shall be cleared of all unnecessary writing paraphernalia; violation of this requirement shall constitute an election offense punishable under the Omnibus Election Code.



The chairman shall first read the votes for national positions.


40

o o



th

th

o

25 and 26 copies, to local broadcast or print media entities as may be equitably determined by the Commission in view of propagating the copies to the widest extent possible; and th th 27 to the 30 , to the major citizen's arms, including the accredited citizen's arm, and other non-partisan groups or organization enlisted by the Commission pursuant to Section 52(k) of Batas Pambansa Blg. 881. Such citizens' arm, groups and organization may use the four certified copies of election returns for the conduct of citizens' quick counts at the local or national levels;

In the election of local officials and member of the House of Representatives, copies of the election returns shall be distributed as follows: (Sec 19. RA 9369) st o 1 copy shall be delivered to the city or municipal board of canvassers; nd o 2 copy, to the Commission; rd o 3 copy, to the provincial board of canvassers; th o 4 copy, to the citizens' arm authorized by the Commission to conduct an unofficial count; th o 5 copy, to the dominant majority party as determined by the Commission in accordance with law; th o 6 copy, to the dominant minority party as determined by the Commission in accordance with law; and th o 7 copy shall be deposited inside the copy shall deposited inside the compartment of the ballot box for valid ballots. th o 8 copy to be posted conspicuously on a wall within the premises of the polling place or counting center; th th o 9 to the 18 copies, shall be given to the 10 accredited major national parties, excluding the dominant majority and minority parties, in accordance with a voluntary agreement among them. If no such agreement is reached, the Commission shall decide which parties shall receive the copies on the basis of the criteria provided in Section 26 of Republic Act No. 7166; th th o 19 and 20 copies shall be given to the 2 accredited major local parties in accordance with a voluntary agreement among them. If no such agreement is reached, the Commission shall decide which parties shall receive the copies on the basis of criteria analogous to that provided in Section 26 of republic Act No. 7166; st th o 21 to the 25 copies, to national broadcast or print media entities as may be equitably determined by the Commission in view of propagating the copies to the widest extent possible;


o

th

th

26 and 27 copies, to local broadcast or print media entities as may be equitably determined by the Commission in view of propagating the copies to the widest extent possible; and th th 28 to the 30 copies to the major citizens' arms, including the accredited citizens' arm, and other non-partisan groups or organization enlisted by the Commission pursuant to section 52(k) of Batas Pambansa Blg. 881. Such citizens' arms, groups and organization may use the five certified copies of election returns for the conduct of citizens' quick counts at the local or national levels.

DUTIES OF BOARD OF ELECTION INSPECTORS IN COUNTING THE VOTES 

During the counting of the votes case, the election inspectors should not concern themselves with the eligibility of candidates;



Their duties should be confined to the: o conduct of election, o counting of the votes, o certification of the results insofar as related to the certified candidates;



The counting of votes should be liberal in order that the will of the electorate may be effectuated. Voters should not be disenfranchised retroactively for technical causes by the reviewing authorities.

RULES FOR APPRECIATION OF BALLOTS 

LIBERAL CONSTRUCTION – laws governing elections contests especially the appreciation must be liberally construed to the end that the will of the electorate in the choice of public officials may not be defeated by technical infirmities



Cardinal objective of ballot of appreciation is: o

To discover and give effect to, rather than frustrate the intention of the voters. Thus, in reading and appreciation of ballots, every ballot shall be presumed to be valid unless there is clear and good reason to justify its rejection

41

BEI shall observe the following rules, bearing in mind the object of the election is to obtain the expression of the voter’s will: st

1. Where only the 1 name of a candidate or only his surname is written, the vote for such candidate is VALID, if there is no other candidate with the st same 1 name or surname for the same office st

2. Where only the 1 name of a candidate is written on the ballot, which when read, has a sound similar to the surname of another candidate, the vote shall be counted in favor of the candidate with such surname. If there are 2 or more candidates with the same full name, first name or surname and one of them is the incumbent, and on the ballot is written only such full name, first name or surname, the vote shall be counted in favor of the incumbent 3. In case the candidate is a woman who uses her maiden or married surname or both and there is another candidate with the same surname, a ballot bearing only such surname shall be counted in favor of the candidate who is an incumbent 4. When 2 or more words are written on the same line on the ballot, all of which are the surnames of 2 or more candidates, the same shall not be counted for any of them, unless one is a surname of an incumbent who has served for at least 1 year in which case it shall be counted in favor of the latter 5. When 2 or more words are written on different lines on the ballot all of which are the surnames of 2 or more candidates bearing the same surname for an office for which the law authorizes the election of more than one and there are the same number of such surnames written as there are candidates with that surname, the vote shall be counted in favor of all the candidates bearing the surname st

6. When on the ballot is written a single word which is the 1 name of a candidate and which is at the same time the surname of his opponent, the vote shall be counted in favor of the latter (opponent) st

7. When 2 words are written on the ballot, one of which is the 1 name of the candidate and the other is the surname of his opponent, the vote shall not be counted for either


8. A name or surname incorrectly written which, when read, has a sound similar to the name or surname of a candidate when correctly written shall be counted in his favor 9. When a name of a candidate appears in a space of the ballot for an office for which he is a candidate and in another space for which he is not a candidate, it shall be counted in his favor for the office for which he is a candidate and the vote for the office for which he is a candidate shall be considered as stray, except when is used as a means to identify the voter, in which case, the whole ballot shall be void. If the words written on the appropriate blank on the ballot is the identical name or surname of full name, as the case may be, of 2 or more candidates for the same office none of whom is an incumbent, the vote shall be counted in favor of that candidate to whose ticket belong to all the other candidates for in the same ballot for the same constituency. 10. When in space in the ballot there appears a name of a candidate that is erased and another clearly written, the vote is valid for the latter. st

11. The erroneous initial of the 1 name which accompanies the correct surname of a candidate, the erroneous initial of the surname st accompanying the correct 1 name of a candidate, or the erroneous middle initial of the candidate shall not annul the vote in favor of the latter. 12. The fact that there exists another person who is not a candidate with the st 1 name or surname of a candidate shall not prevent the adjudication of the vote of the latter. 13. Ballots which contain prefix such as “Sr.”, “M.”, “Datu”, “Don”, “Ginoo”, “Hon.”, “Gob.” or suffixes like “Hijo”, “Jr.,” “Segundo” are valid. 14. The use of the nicknames and appellations of affection and friendship, if st accompanied by the 1 name or surname of the candidate, does not annul such vote, except when they were used as a means to identify the voter, in which case the whole ballot is invalid. If the nickname used is unaccompanied by the name or surname of a candidate and the one by which he is generally or popularly known in the locality, the name shall be counted in favor of said candidate, if there is no other candidate for the same office with the same nickname.

42

15. Any vote containing initials only or which is illegible or which does not sufficiently identify the candidate for whom it is intended shall be considered as a stray vote but shall not invalidate the whole ballot st

16. If on the ballot is correctly written the 1 name of a candidate but with a different surname, or the surname of the candidate is correctly written but with different first name, the vote shall not be counted in favor of any candidate having such first name and/or surname but the ballot shall be considered valid for the candidates 17. Any ballot written with crayon, lead pencil, or in ink, wholly or in part, shall be valid. 18. Where there are 2 or more candidates voted for in an office for which the law authorizes the election of only one, the vote shall not be counted in favor of any of them, but this shall not affect the validity of the other votes therein. 19. If the candidates voted for exceed the number of those to be elected, the ballot is valid, but the votes shall be counted only in favor of the candidates whose names were firstly written by the voter within the spaces provided for said office in the ballot until the authorized number is covered. 20. Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for an officer for which he did not present himself shall be considered as a stray vote but it shall not invalidate the whole ballot 21. Ballots containing the name of a candidate printed and pasted on a blank space of the ballot or affixed thereto through any mechanical process are totally null and void 22. Circles, crosses or lines put on the spaces on which the voter has not voted shall be considered as signs to indicate his desistance from voting and shall not invalidate the ballot 23. Unless it should clearly appear that they have been deliberately put by the voter to serve as identification marks, commas, dots, or hyphens between st the 1 name and surname of a candidate, or in other parts of the ballots, st traces of the letter “T,”, “J”, and other similar ones, the 1 letters or syllables of names which the voter does not continue, the use of 2 or more kinds of writing and unintentional or accidental flourishes, strokes, or strains, shall not invalidate the ballot Election Law Reviewer (2012)

24. Any ballot which clearly appears to have been filled by 2 distinct persons before it was deposited in the ballot box during the voting is totally null and void. 25. Any vote cast in favor of a candidate who has been disqualified by final judgment shall be considered as stray and shall not be counted but it shall not invalidate the ballot 26. Ballots written in Arabic in localities where it is of general use are valid. To read them, the board of election inspectors may employ an interpreter who shall take an oath that he shall read the votes correctly 27. The accidental tearing or perforation of a ballot does not annul it 28. Failure to remove the detachable coupon from a ballot does not annul it 29. A vote for the President shall also be a vote for the Vice President running under the same ticket of a political party, unless the voter votes for a Vice President who does not belong to such party 

Final judgment before the election for the votes of a disqualified candidate to be considered “stray” is required

Villarosa v HRET A candidate for Representative, used the initials or nickname of her husband as her nickname or stage name. Petitioner‟s use of the initials of her husband as her nickname or stage name was attended by bad faith and malice hence such act was not allowed. The Rule allows the use of a) a nickname and appellation of affection and friendship, provided that it is accompanied by the first name or surname of the candidate, unless the nickname or appellation is used to identify the voter; and b) a nickname, which is not accompanied by the name or surname of a candidate provided that it is the one by which the candidate is generally or popularly known in the locality. In the case at bar, the candidate did not satisfy the 2 conditions hence votes under the initials cannot be counted as her vote. Also there are 3 kinds of votes are considered stray 1) vote containing initials only; 2) vote which is illegible; 3) a vote which does not sufficiently identify the candidate st for whom it is intended. The 1 category of stray votes under this rule is not to be rd qualified by the 3 category in the sense that votes in initials only may be counted for a candidate provided that the initials only may be counted for a candidate provided that the initials would sufficiently identify the candidate voted for. Such 43

construction of the rule fails to give meaning to the disjunctive conjunction OR separating the first category from the second, and the second from the third



In the absence of grave abuse of discretion or any jurisdiction infirmity or error of law, the factual findings, conclusions, rulings and decisions rendered by the said commission on matters falling within its competence shall not be interfered with by this court.

GUIDING PRINCIPLES IN APPRECIATION OF BALLOTS 

LIBERAL CONSTRUCTION – appreciation of ballots should be liberally construed, and the intendments should be in favor of a reading and construction which will render the ballot effective, rather than in favor of a conclusion which on some technical grounds render it ineffective;



If the ballot is so defective as to fail to show any intention whatever, it must be disregarded.



The purpose of election laws is to give effect to, rather than frustrate, the will of the voter.



Doubts are to be resolved in favor of their validity.



Technicalities should not be permitted to defeat the intention of the voter especially so if that intention is discoverable from the ballot itself;



The utmost liberality of construction must be observed in reading the ballots with a view to giving effect to the intention of the voters.



The minor blemishes found on the ballots including errors in spelling, the casual making of blurs and erasures, can be considered as affecting the validity of the ballot, where an honest intention on the part of the voter to vote for certain persons is discernible in the ballot. With respect to errors of spelling or lack of fitness in the written name, it may be said that no honest mistake, due to ignorance or literacy, should be permitted to defeat the intention of the voter; the utmost liberality of construction must prevail.





QUESTION OF FACT – The appreciation of contested ballots and election documents involves a question of fact best left to the determination of the COMELEC; It is the Constitutional commission vested with the exclusive original jurisdiction over election contests involving regional, provincial and city officials, as well as appellate jurisdiction over election protests involving elective municipal and barangay officials.


ANNOUNCEMENT OF RESULTS OF ELECTIONS AND ISSUANCE OF CERTIFICATE OF VOTES 

Upon completion of election returns, the chairman of the board of the election inspectors shall ORALLY AND PUBLICLY ANNOUNCE the total number of votes received in the election in the polling place by each and every one of the candidates, stating their corresponding office;



After the announcement of the results of the election and before leaving the polling place, it shall be the duty of the board of election inspectors to issue a certificate of the number of the votes received by a candidate upon request of the duly accredited watchers. All the members of the board of election inspectors shall sign the certificate.



The certificate shall contain the number of votes obtained by each candidate written in words and figures, the number of the precinct, the name of the city or municipality, province, the total numbers of votes who voted in the precinct and the date and time issued, and shall be signed and thumb marked by each member of the board



A certificate of votes does not constitute sufficient evidence of the true and genuine results of the elections, only election returns

WHAT CONSTITUTES AN ELECTION? 

PLURALITY OF VOTES SUFFICIENT FOR A CHOICE – A plurality of votes lawfully cast is sufficient to elect regardless of the actual number of ballots cast but this principle is qualified by the important condition that it must be a plurality of valid votes of a valid Constituency;



NOT NECESSARY THAT A MAJORITY OF VOTERS SHOULD VOTE – Even though a minority only participated, yet, if the election be lawfully held, a plurality of the majority will elect. Those of the voters who remain away from the polls are assumed to assent to the action of those who do attend, and those who do attend the election but fail to vote for any office are presumed to assent to the action of those who do vote.

44

D. CANVASS AND PROCLAMATION



Power to see board perform its proper functions. The board of canvassers is a ministerial body. It has been said, and properly, that its powers are limited generally to the mechanical or mathematical function of ascertaining and declaring the apparent result of the election by adding or compiling the votes cast for each candidate as shown on the face of the returns before them, and then declaring or certifying the result so ascertained.



Power to annul canvass. The statutory power of supervision and control by the COMELEC over the boards of canvasser includes the power to revise, reverse, and set aside the action of the boards. It is within the legitimate concerns of COMELEC to annul a canvass or proclamation based on incomplete returns, or on incorrect or tampered returns, a canvass or proclamation made in an unauthorized meeting of the board of canvassers either because it lacked a quorum or because the board did not meet at all. Neither Constitution nor statute has granted COMELEC or board of canvassers the power, in the canvass of election returns, to look beyond the face thereof, once satisfied of their authenticity.

BOARD OF CANVASSERS – there shall be a board of canvassers for each province, city and municipality PROVINCIAL BOARD OF CANVASSERS 1. Provincial election supervisor or a lawyer in the regional office of COMELEC – as chairman; 2. Provincial fiscal – as vice chairman 3. Provincial superintendent of schools – as member CITY BOARD OF CANVASSERS 1. City election registrar or a lawyer of the COMELEC – chairman; 2. City fiscal – vice chairman 3. City superintendent of schools – member 

In cities and more than one election registrar, the COMELEC shall designate the election registrar who shall act as chairman.

CANVASS BY THE BOARD MUNICIPAL BOARD OF CANVASSERS 1. Election registrar or representative of the COMELEC – chairman 2. Municipal treasurer – vice-chairman 3. Most senior district school supervisor or in his absence a principal of the school district or the elementary school – member CONTROL AND SUPERVISION OF THE COMMISSION OVER THE BOARD 

Pursuant to its administrative functions, COMELEC has direct control and supervision over the board of canvassers and its proceedings.



It has the power to investigate and act on the propriety or legality of the canvass of election returns made by the board of canvassers.



Power of Commission plenary. Power of COMELEC over the board is plenary and not from its appellate jurisdiction hence a superior body or office having supervision and control over another may do directly what the latter is supposed to do or ought to have done.



Power of Commission ministerial. The function of a canvassing board in the canvass of returns is purely MINISTERIAL in nature.



Equally ministerial is the function of the Comelec on the exercise of its supervisory power over said board, pursuant to the Constitution and laws.


1. Proceedings of the board of canvassers shall be open and public 2. Majority vote of all the members of the board of canvassers shall be necessary to render a decision 3. The board of canvassers shall meet not later than 6 pm of the election day at the place designated to receive the election returns and to immediately canvass those that may have already been received; 4. The board of canvassers shall meet continuously from day to day until the canvass is completed, and may adjourn but not only for the purpose of awaiting the other elections returns from the other polling places within its jurisdiction. a. Each time the board adjourns, it shall make a total of all the votes canvassed so far for each candidate for each office, furnishing the COMELEC in Manila by the fastest means of communication a certified copy thereof, and making available the data contained therein to the mass media and other interested parties b. As soon as the other election returns are delivered, the board shall immediately resume canvassing until all the returns have been canvassed c. A canvass cannot be reflective of the true vote of the electorate unless all the returns are considered. 5. Subject to reasonable exceptions, the board of canvassers must complete their canvasses within otherwise violation of this requirement shall be a punishable election offense. 45

a. 36 hrs in municipalities b. 48 hrs in cities c. 72 hrs in provinces 6. The respective board of canvassers shall prepare a certificate of canvass duly signed and affixed with the imprint of the thumb of the right hand of each member, supported by a statement of the votes received by each candidate in each polling place. A certificate of canvass and proclamation bearing only one valid signature is void. Note: in the May 10, 2010 automated elections Precinct Count Optical Scan (PCOS) machines were used from vote counting to election results canvassing. After automatically counting the votes, the PCSO electronically transmitted the results to the canvassing centers.

PROCLAMATION BY THE BOARD 

Presumption of Regularity. The proclamation of a candidate as the winner is a ministerial duty of the canvassing board. It enjoys the presumption of regularity. To destroy the presumption, the protestant must convincingly show that the protestee‟s victory was procured through extra-legal means.



The board shall proclaim as elected the candidates who obtained the highest number of votes cast in the province, city, municipality or barangay ON THE BASIS OF THE CERTIFICATES OF CANVASS; Failure to comply Constitutes an ELECTION OFFENSE;



There is no provision in our election laws which requires that a majority of registered voters must cast their votes. All that is required is that a winning candidate must be elected by a PLURALITY OF VALID VOTES regardless of the actual number of ballot‟s cast.



Exhaustion of powers of board. Having once met and fully completed its duty, the powers of the board are exhausted and it cannot again meet and re-canvass the votes or reverse their prior decision and announce a different results.



Where a PROCLAMATION IS NULL AND VOID as where it is based on faulty or erroneous tabulation, statement of votes which contains erroneous entities, or an incomplete canvass, or a canvass that should have been suspended with respect to the contested election retains or a canvass that included unsigned election returns or outrightly excluded election returns involving such number of votes as will affect te outcome of the election, - it is no proclamation at all and the proclaimed candidate‟s assumption of office cannot deprive the COMELEC of the power to declare such nullity and annul the proclamation.

CANVASSING COMMITTEES 

The board of canvassers may Constitute such number of canvassing committees as may be necessary to enable the board to complete the canvass within the period prescribed;



Each committee shall be composed of 3 members, each member to be designated by the chairman and members of the board.



All candidates shall be notified in writing, before the election, of the number of committees to be constituted so that they can designate their watchers in each committee



The committees shall be under the direct supervision and control of the board.

RECOUNT OF VOTES CAST IN CASE OF DISCREPANCIES IN ELECTION RETURNS 

Recount of votes is in order where a discrepancy exists between the votes written in words or in figures.



RECOUNT merely consists in the mathematical counting of the votes received by each candidate and it does not involve any appreciation of ballots or the determination of their validity as in required in an election contest. Reason: to offer a prompt relief to a simple controversy and to restore public tranquility by dispelling all doubts as to the true and correct number of the votes cases in a given polling place.


o

The proclaimed candidate may assume office on the strength of the proclamation of the Board of Canvassers but he is only a presumptive winner who assumes office subject to the final outcome of the election protest.

o

Although the COMELEC possesses the power to annul and suspend the proclamation of any candidate, it is without power to partially or totally annul a proclamation or suspend the effects of a proclamation without NOTICE AND HEARING.

46

o



Due process in quasi-judicial proceedings before the COMELEC requires due notice and hearing. The proclamation of a winning candidate cannot be annulled if he has not been notified of the motion to set aside his proclamation

A suspension of proclamation pending determination of a petition for disqualification against a winning candidate is PROVISIONAL in nature and can be LIFTED WHEN THE EVIDENCE SO WARRANTS. It is akin to a TRO which a court can issue ex parte under exigent circumstances.



Alleged irregularities, such as the omissions of the COMELEC in the distribution and protection of the election forms and paraphernalia, involve the discharge of its administrative duties and so do not come under the jurisdiction of the Supreme Court, which can review the decisions of the body only in cases of grave abuse of discretion committed by it in the discharge of its quasi-judicial powers.



As long as the returns appear to be authentic and duly accomplished on their face, the Boards of Canvassers cannot look beyond or behind them to verify allegations of irregularities in the casting or the counting of the votes.

Note: RA 8295 provides for the automatic proclamation of a lone candidate for any elective public office. This electoral reform would save the government time, expense and effort of conducting an election for a position contested by only one candidate.

o

Technical examination of voting paraphernalia involving analysis and comparison of voter‟s signatures and thumbprints thereon is prohibited in PRE-PROCLAMATION without involving evidence aliunde and examinations of voluminous documents which take up much time and cause delay in defeat of the public policy underlying the summary nature of pre-proclamation controversies.

o

But when there is a prima facie showing that the return is not genuine, as where several entries were omitted in the questioned election return, the doctrine does not apply. The COMELEC has the power to determine if there is a basis for the exclusion of the controverted election returns.

PRINCIPLES GOVERNING CANVASS PROCEEDINGS (RULING OF SC) *Controversies arising from the canvass must be resolved speedily, otherwise, the will of the electorate would be frustrated. 





Canvass proceedings are ADMINISTRATIVE AND SUMMARY IN NATURE, and a strong prima facie case backed up by a specific offer of evidence and indication of its nature and importance has to be made out to warrant the reception of evidence aliunde and the presentation of witnesses and the delays necessarily entailed thereby. Otherwise, the paralization of canvassing and proclamation leading to vacuum in an important office could easily be brought about. Where it has been duly determined by the COMELEC after INVESTIGATION AND EXAMINATION OF THE VOTING AND REGISTRATION RECORDS that the actual voting election by the registered voters had taken place in the questioned precincts, the election returns cannot be disregarded and excluded with the resulting disenfranchisement of the voters but be ACCORDED PRIMA FACIE STATUS AS BONA FIDE REPORTS OF THE RESULT OF THE VOTING for canvassing and proclamation purposes. To allow a respondent in the COMELEC to raise belated questions concerning returns at any time during the pendency of the case of review before the COMELEC notwithstanding that he has not originally raised such questions before the canvassing board and only when he finds his positions endangered would mean undue delays in pre-proclamations proceedings before the Comelec.




It is settled jurisprudence that the COMELEC can suspend the canvass of votes pending its inquiry whether there exists a discrepancy between the various copies of election returns from the disputed voting centers. o



Once the election returns were found to be falsified or tampered with, the COMELEC can annul the illegal canvass and order the Board of Canvassers to reconvene and proclaim the winner on the basis of genuine returns or, if it should refuse, replace the members of the board or proclaim the winners itself.

An incomplete canvass of votes is illegal and cannot be the basis of a subsequent proclamation. A canvass cannot be reflective of the true vote of the electorate unless all returns are considered and none is omitted. However, this true only where the election returns missing or not counted will affect the results of the election.

47

Agujetas vs CA rd

Chairman and vice-chairman and a 3 member of the Provincial Board of Canvassers failed to proclaim as elected Sangguniang Panlalawigan member the th candidate who obtained the 8 highest number of votes cast but instead proclaimed another candidate who obtained a lesser number of votes. There was failure to proclaim the winning candidate. The 3 members of the PBC could not attribute to the Committee on Tabulation the blame for their errors as the PBC members themselves were the ones who certified under oath the said Certificate of Proclamation and the Tabulation Committee members were totally under their direct supervision and control. WON the Board of Canvassers became functus oficio after it proclaimed the winning candidate is beside the point. What matters is WON petitioners committed an election offense, in the case at bar petitioners committed an election offense.

o

o o o

NUMBER OF COPIES OF CERTIFICATES OF CANVASS AND THEIR DISTRIBUTION 

The certificates of canvass for President, Vice-President, senators, members of the House of Representatives, parties, organization or coalitions participating under the party-list system and elective provincial officials shall produced by the city or municipal board of canvassers and distributed as follows.(Sec 26. RA 9369, Automated Election System) st o 1 copy shall be delivered to the provincial board of canvassers for use in the canvass of election results for President, VicePresident, senators, members of the House of Representatives, parties, organization or coalitions participating under the party-list system and elective provincial officials nd o 2 copy – sent to the COMELEC; rd o 3 copy – kept by chairman of the board th o 4 copy, to the citizen's arm designated by the COMELEC to conduct an unofficial count. It shall be the duty of the citizen‟s arm to furnish independent candidates‟ copies of the certificate of canvass at the expense of the requesting party th o 5 copy, to Congress, directed to the President of Senate th o 6 copy, posted on a wall within the premises of the canvassing centers th th o 7 and 8 copies shall be given to the dominant majority and minority parties th th o 9 to the 18 copies, shall be given to the 10 accredited major national parties, excluding the dominant majority and minority


o



parties, in accordance with a voluntary agreement among them. If no such agreement is reached, the Commission shall decide which parties shall receive the copies on the basis of the criteria provided in Section 26 of Republic Act No. 7166; th th 19 and 20 copies, to the 2 accredited major local parties in accordance with a voluntary agreement among them. If no such agreement is reached, the Commission shall decide which parties shall receive the copies on the basis of criteria analogous to that provided in Section 26 of Republic Act No. 7166; st th 21 to the 25 copies, to national broadcast or print media entities as may be equitably determined by the Commission in view of propagating the copies to the widest extent possible; th th 26 and 27 copies, to local broadcast or print media entities as may be equitably determined by the Commission in view of propagating the copies to the widest extent possible; and th th 28 to the 30 , to the major citizen's arms, including the accredited citizen's arm, and other non-partisan groups or organization enlisted by the Commission pursuant to Section 52(k) of Batas Pambansa Blg. 881. Such citizens' arm, groups and organization may use the 3 certified copies of election returns for the conduct of citizens' quick counts at the local or national levels; the board of canvassers shall furnish all other registered parties copies of the certificate of canvass at the expense of the requesting party

The certificates of canvass for President, Vice-President, senators, parties, organization or coalitions participating under the party-list system shall be produced by the city boards of canvassers of cities comprising 1 or more legislative districts, by provincial boards of canvassers and by district board of canvassers in the Metro Manila Area, and other highly urbanized areas and distributed as follows.(Sec 26. RA 9369, Automated Election System) st o 1 copy sent to Congress, directed to the President of the Senate for use in the canvass of election returns for president and vicepresident nd o 2 copy – sent to the COMELEC; for use in the canvass of the election results for senators rd o 3 copy – kept by chairman of the board th o 4 copy, to the citizen's arm designated by the COMELEC to conduct an unofficial count. It shall be the duty of the citizen‟s arm to furnish independent candidates‟ copies of the certificate of canvass at the expense of the requesting party th o 5 copy, to Congress, directed to the President of the Senate 48

o o o

o o

o

th

o

6 copy, posted on a wall within the premises of the canvassing centers th th 7 and 8 copies shall be given to the dominant majority and minority parties th th 9 to the 10 copies, shall be given to the 2 accredited major national parties, excluding the dominant majority and minority parties, to be determined by the Commission on the basis of criteria as provided in Section 26 of RA 7166 th th 11 and 13 copies, to broadcast media entities as may be equitably determined by the Commission in view of propagating the copies to the widest extent possible; th 14 copy, to the another citizen's arms, or in the absence thereof, to a non-partisan groups or organization enlisted by the Commission pursuant to Section 52(k) of Batas Pambansa Blg. 881. Such citizens' arm or non-partisan group may use the copy of election return for the conduct of citizens‟ quick counts at the local or national levels the board of canvassers shall furnish all other registered parties copies of the certificate of canvass at the expense of the requesting party 



The certified print copies may be claimed at the polling place. Any unclaimed copy shall be brought by the chairman of the board of election inspectors to the canvassing center where the recipients or representatives may claim them. Copies still unclaimed at the canvassing center shall be placed in the custody of the chairman of the board of election inspectors, who shall produce them when requested by the recipient or when ordered by a competent authority



Any provision of law to the contrary notwithstanding, any of the recipients of the print or digital copies of the election return may conduct an unofficial consolidation of votes and may announce the result to the public

Congress and the Commission en banc shall determine the authenticity and due execution of the certificate of canvass for President and Vice-President and senators, respectively as accomplished and transmitted to it by the local boards of canvassers, on a showing that: o Each certificate of canvass was executed, signed, thumbmarked by the chairman and members of the board of canvassers and transmitted, or caused to be transmitted to Congress by them; o Each certificate of canvass contains the names of all of the candidates for President and Vice-President or senator, as the case may be, and their corresponding votes in words and in figures; and o There exists no discrepancy in other authentic copies of the document such as statement of votes by city/municipality/by precinct or discrepancy in words and figures in the certificate; and o There exists no discrepancy in the votes of any candidates in words and figures in the certificate of canvass against the aggregate number of votes appearing in the election returns of precinct covered by the certificate of canvass

COMPLETION OF CERTIFICATE – when the certificate of canvass duly certified by the board of canvassers of each province, city or district, appears to be incomplete, the SENATE PRESIDENT or the chairman of the commission as the case may be, shall require the board of canvassers concerned to transmit by PERSONAL DELIVERY, the election returns from the polling places that were not included in the certificate of canvass and supporting statements o



The Commission shall post its digital files in its website for the public to view or download at any time of the day. It shall maintain the files at least 3 years from the date of posting

CONGRESS AS THE NATIONAL BOARD OF CANVASSERS FOR PRESIDENT AND VICE-PRESIDENT 

DETERMINATION OF AUTHENTICITY AND DUE EXECUTION OF CERTIFICATE –




Said election return shall be submitted by personal delivery within 2 days from receipt of notice.

PRESENCE OF ERASURES AND ALTERATIONS IN THE CERTIFICATE – when it appears that any certificate of canvass or supporting statement of votes by city/municipality or by precinct bears erasures and alteration which may cast doubt as to the veracity of the number of votes stated therein and may affect the result of the election, upon request of the Presidential or Vice-Presidential or senatorial candidate concerned or his party, Congress or the Commission en banc as the case may be, shall, for the sole purpose of verifying the actual number of votes cast for President and Vice-President, or senator count the votes as they appear in the copies of the election returns submitted to it.

49

CANVASS OF VOTES FOR PRESIDENT AND VICE-PRESIDENT 

Returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to congress, directed to the President of the Senate;



FAILURE TO ASSUME OFFICE 



Upon receipt of certificates of canvass by the Senate President, he shall open all certificates in the presence of Congress and Senate, not later than 30 days after day of election open all the certificates in the presence of the Senate and the House of Representatives in joint public session;



Congress upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes.



Person having the highest number of votes shall be proclaimed elected;



But in case two or more shall be an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a MAJORITY OF ALL THE MEMBERS OF BOTH HOUSES OF CONGRESS, VOTING SEPARATELY.



The Congress shall promulgate its rules for the canvassing of the certificates.

ELECTION RESULTING IN A TIE 1. Whenever it shall appear from the canvass that 2 or more candidates have received an equal and highest number of votes; or 2. In cases where 2 or more candidates received the same number of votes for the last place in the number to be elected. 

The Board of Canvassers, after recording this fact in its minutes shall, by resolution, upon 5 days notice to all the tied candidates, hold A SPECIAL PUBLIC MEETING AT WHICH THE BOARD OF CANVASSERS shall proceed to the drawing of lots of the candidates who may be favored by luck



The candidate proclaimed shall have the right to assume office in same manner as if he had been elected by plurality of votes.



The board of canvassers shall forthwith make a certificate stating the name of a candidate who had been favored by luck and his proclamation on the basis thereof.


Nothing in the above shall be construed as depriving a candidate of his right to contest the election

The office of any official elected who FAILS OR REFUSES to take his oath of office within 6 months from his proclamation shall be considered vacant, unless said failure is for a cause or causes beyond his control.

NATURE OF BOARD’S DUTIES 

WHEN MINISTERIAL – the board of canvassers is a ministerial body enjoined by law to canvass all votes on election returns submitted to it. o

So long as the election returns have been accomplished in due form, the board of canvassers, and on appeal therefrom, the COMELEC, must include said returns in the canvass. If the returns be regular, the duty of the board of canvassers consists in a simple matter of arithmetic.

o

The Commission or the board of canvassers, in the canvass of votes, is without power to look beyond the face thereof, once satisfied of their authenticity. Neither the Constitution nor the statute has granted it such power.

o

It has only the ministerial task of tallying the votes as reported in the election returns and cannot exercise the judicial power of deciding an election contest.

o

Thus, where what is involved is purely mathematical and/or mechanical error in the tabulation of the votes committed by the board of canvassers which is admitted by all parties, and which does not involve any opening of the ballots boxes, examination and appreciation of ballots and/or election returns, and said error was discovered sometime after proclamation, all that is required is for the board to convene to rectify the error it inadvertently committed in order that the manifest mistake in the mathematical additional calls for a mere clerical task on the part of the board. The remedy is purely administrative.

o

The simple purpose of the canvassing board is to ascertain and declare the apparent result of the voting. All other questions are to

50

be tried before the court or other tribunal for contesting elections or in quo warranto proceedings. o



Absence of any determination of irregularity in the election returns as well as order enjoining the canvassing and proclamation, it is ministerial duty of the boars of canvassers concerned to count the votes based on such return and declare the results.

WHEN QUASI-JUDICIAL – the board of canvassers, however is guided by election returns transmitted to it which are in due form and that they must be satisfied of the genuineness of the returns, namely, that the papers presented to it are not forged and spurious, and when the returns are obviously manufactured, it will not be compelled to canvass them. o

it must be satisfied that the returns are genuine or authentic, meaning trustworthy and not false. It may reject election returns submitted to it for the purpose of the required canvass, if in its opinion, they were “obviously manufactured,” or “contrary to all probabilities,” or “utterly improbable and clearly incredible.”

o

It is the duty of the board to suspend the canvass where there are patent erasures and super-impositions in the words and figures on the face of the election returns, or when another copy of the statement of the election returns gives to a candidate a different number of votes and such affects the result of the election, or there is a difference between the votes of the same candidate written in words and those written in figures, or the election return is clearly falsified, or is not legible.

o

If the true nature and scope of the power of the Board of Canvassers and the COMELEC under the law in connection with the canvass of votes is that the canvassers are to be satisfied of the genuineness of the returns which means the exercise of judgment or discretion, however limited, to determine whether any given return before it is genuine, then the duties and powers to make such determination are quasi-judicial.

certificate is not conclusive in a direct proceeding to try the title to the office. 

EVIDENCE ALIUNDE ADMISSIBLE TO DISPROVE FINDINGS – the fact of having a plurality of the votes lawfully case is what confers the title to the office, and it is always open for the party receiving such plurality, unless otherwise expressly provided by law, to go behind the certificate or the returns and to establish this fact before the appropriate tribunal, although the canvassers may have decided otherwise.



COURT‟S DECISION PREVAILS OVER FINDINGS – between the determination by the trial court of who of the candidates won the elections and the finding of the Board of Canvassers as to whom to proclaim, it is the court‟s decision that should prevail.

WEIGHT ACCORDED BOARD’S FINDINGS 

FINDINGS NOT CONCLUSIVE – the findings of the canvassers and the certificate of election issued by them, if any, are prima facie evidence of the result and of the title to the office of those declared elected, and this evidence is conclusive in all collateral inquiries. But such finding or


51

BOC which it projects on the screen. This addresses the possible use of spurious ERs not printed by the PCOS or sent from unauthorized locations

CHAPTER SIX:

AUTOMATED ELECTION SYSTEM AUTOMATED MAY 10, 2010 ELECTIONS 

May 10, 2010 – first nationwide (national and local) fully Automated Election System (AES) in the Philippines was held in compliance with RA 84236 amended by RA 9369 using the Precinct Count Optical Scan (PCOS) machines from vote counting to election results canvassing. st



The Philippines is the 1 country that made the total transition from manual to electronic voting



Instead of manually writing down the names of the candidates on the official ballots as before, the voter using a special pen, fully shade (manually) the blank oval beside the name of the candidate of his choice, listed in the ballot



The ballots (about 20 cm wide and 64 cm long, printed back to back) are precinct specific, meaning that each set of ballots can only be used in a designated precinct. Those with erasures and extra markings are not accepted by the counting machines

At the end of the voting, after the PCOS operator presses the “close voting” option, the PCOS automatically generates a tally of votes and then electronically transmits the counted votes to the municipal/city/district/provincial canvassing centers up to the national level. The transmission of results is similar to text messages. o



The ERs are tallied by the BOCs at the municipality, provincial, and national levels. Results for local elections in the 2010 polls were known in just a few hours, and in the national elections, in 5 or 6 days, although the winners were not officially proclaimed. o



In the olds manual elections, the election returns (ERs) from polling precincts were physically delivered to the canvassing centers. They could be changes by cheaters before delivery. Thus, the Certificates of Canvass would not be reflective of the true vote of the electorate. Even the COCs were claimed to have been altered to favor favored candidates.

The Boards of Election Inspectors have identification cards (ID) and passwords that the canvassing computers validate when the ERs are received (by the Board of Canvassers). Interested parties would be able to compare the ERs printed by PCOS machines with what received by the


In past national elections, they had to count for more than a month

With manual count and canvass eliminated, human intervention which has been blamed for cheating is reduced to the minimum. o

o 



In previous elections, the COMELEC received hundreds of complaints involving the padding and shading of votes or the socalled “dagdag-bawas” election cheating.

DEFINITION OF TERMS 1. Automated election system (AES) – system of using appropriate technology which has been demonstrated in the voting, counting, consolidating, canvassing, and transmission of election result, and other electoral process; 2. Electronic transmission – conveying data in electronic form from one location to other 3. Official ballot – where AES is utilized, refers to the paper ballot, whether printed or generated by the technology applied, the faithfully captures or represents the votes cast by a voter recorded or to be recorded in electronic form 4. Election returns – a document in electronic and printed form directly produced by the counting or voting machine, showing the date of the election, the province, municipality and the precinct in which it is held and the votes in figures for each candidate in a precinct in areas where AES is utilized 5. Statement of votes – a document containing the votes obtained by candidates in each precinct in a city/municipality 6. City/municipal/district/provincial certificate of canvass – a document in electronic and printed form containing the total votes in figures obtained by each candidate in a city/municipality/district/province as the case may be. The electronic certificates of canvass shall be the official canvass result in the aforementioned jurisdictions 7. Paper-based election system – type of automated election system that uses paper ballots, records and counts votes, tabulates, 52

consolidates/canvasses and transmits electronically the results of the vote count. 8. Direct recording electronic election system – type or automated election system that uses electronic ballots, records, votes by means of a ballot display provided with mechanical or electro-optical component that can be activated by the voter, processes data by means of a computer programs, record voting data and ballot images, and transmits voting results electronically. BOARD OF ELECTION INSPECTORS 

identification marks, magnetic strips, bar codes and other technical and security markings, are provided on the ballot. 

FILING OF CERTIFICATE OF CANDIDACY 

The Commission shall set the deadline for the filing of certificate of candidacy/petition of registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy



Unlawful acts or omission applicable to a candidate shall effect only upon the start of the aforesaid campaign period.



Any person holding a public appointive office or position, including active members of the armed forces, and officers, and employees in GOCCs shall be considered ipso facto resigned from his/her officer and must vacate the same at the start of the day of the filing of his/her certification of candidacy



Political parties may hold political conventions to nominate their official candidate within 30 days before the start of the period for filing certificate of candidacy.

Where AES shall be adopted, at least 1 member of the BEI shall be an information technology capable person, who is trained or certified by the Department of Science and Technology (DOST) to use the AES o Such certification shall be issued by the DOST, free of charge.

OFFICIAL BALLOT 

COMELE shall prescribe the size and form of the official ballot which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite.



Under each position, the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same type size



A fixed space where the chairman of the BE shall affix his/her signature to authenticate the official ballot shall be provided



The official ballots shall be printed by the National Printing office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. o



The Commission may contract the services of private printers upon the certification by the NPO/BSP that it cannot meet the printing requirements. Accredited political parties and deputized citizens‟ arms of the Commission may assign watchers in the printing, storage and distribution of official ballots

To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial number on the ballot stub shall be printed in magnetic ink that shall be easily detectable by inexpensive hardware and shall be impossible to reproduce on a photocopying machine, and that


The official ballots shall be printed and distributed to each city/municipality at the rate of 1 ballot for every registered voter with a provision of additional 4 ballots per precinct

ELECTION RETURNS 

Each copy of the of the printed election returns shall bear appropriate control marks to determine the time and place of printing. Each copy shall be signed and thumbmarked by all the members of the BEI and the watchers present



If any member of the BEI present refuses to sign, the chairman of the board shall note the same copy in each copy of the printed election returns. o

The member of the BEI concerned refusing to sign shall be compelled to explain his or her refusal to do so. Failure to explain an unjustifiable refusal to sign each copy of the printed election

53

return by any member of the BEI shall be punishable as provided in the Act. 

The chairman of the boards shall then publicly read and announce the total numbers of registered voters, the total number of voters who actually voted and the total numbers of votes obtained by each candidate based on the election returns.



Within 1 hour after the printing of the election returns, the chairman of the BEI or any official authorized by the Commission shall, in the presence of watchers and representatives of the accredited citizens‟ arm, political parties/candidates, if any, electronically transmit the precinct results to the respective levels of board of canvassers, to the dominant majority and minority party, to the accredited citizen‟s arm, and to the Kapisanan ng mga Brodcaster ng Pilipinas (KBP). Distribution as provided in Sec 22.



The election results at the city/municipality canvassing centers shall be transmitted in the same manner by the election officer or any official authorized by the commission to the district or provincial canvassing centers.



The election returns transmitted electronically and digitally signed shall be considered as official election results and shall be used as the basis for the canvassing of votes and the proclamation of a candidate



After the electronic results have been transmitted additional copies not to exceed 30 may be printed and given to requesting parties at their own expense.

CANVASSING BY PROVINCIAL, CITY, DISTRICT and MUNICIPAL BOARDS OF CANVASSERS 

The City or Municipal board of canvassers shall canvass the votes for the president, vice-president, senators, and parties, organization or coalitions participating under the party-list system by consolidating the electronically transmitted results contained in the data storage devices used in the printing of the election returns. Upon completion of the canvass, it shall print the certificate of canvass of votes for president, vice-president, senators and member of the House of Representatives and elective provincial officials and thereafter, proclaim the elected city or municipal officials, as the case may be.




The city board of canvassers of cities comprising one or more legislative districts shall canvass the votes for president, vice-president, senators, members of the House of Representatives and elective city official by consolidating the certificates of canvass electronically transmitted or the results contained in the data storage devices used in the printing of the election returns. Upon completion of the canvass, the board shall procedure the canvass of votes for president, vice-president, and senators thereafter, proclaim the elected members of the House of Representatives and city officials



In the Metro Manila area, each municipality comprising a legislative district shall have a district board of canvassers which shall canvass the votes for president, vice-president, senators, members of the House of Representative and elective municipal officials by consolidating the electronically transmitted results or the results contained in the date storage devices used in the printing of the election returns. Upon completion of the canvass, it shall produce the certificate of canvass of votes for president, vice-president, and senators and thereafter, proclaim the elected members of the House of Representatives and municipal officials.



Each component municipality in a legislative district in the Metro Manila area shall have a municipal boards of canvassers which shall canvass the votes for president, vice-president, senators, members of the House of Representatives and elective municipal official by consolidating the results electronically transmitted from the counting centers or the results contained in the date storage devices used in the printing of the election returns. Upon completion of the canvass, it shall prepare the certificate of canvass of votes for president, vice-president, senators, members of the House of Representatives, and thereafter, proclaim the elected municipal officials. o

The district board of canvassers of each legislative district comprising 2 municipalities in the Metro Manila area shall canvass the votes for president, vice-president, senators, and members of the House of Representatives by consolidating the certificates of canvass electronically transmitted from the city/municipal consolidating centers or the results contained in the data storage devices submitted by the municipal board of canvassers of the component municipalities. Upon completion of the canvass. It shall produce a certificate of the canvass votes for president, vicepresident, senators, and thereafter, proclaim the elected members of the House of Representatives in the legislative district 54

o

The district/provincial board of canvassers shall canvass the votes for president, vice-president, senators, members of the House of Representatives and elective provincial officials by consolidating the results electronically transmitted from the city/municipal consolidating centers or the results contained in the data storage devices submitted by the board of canvassers of the municipalities and component cities. Upon completion of the canvass, it shall produce the certificates of canvass votes for president, vicepresident and senators and thereafter, proclaim the elected members of the House of Representatives and the provincial official.



The municipal, city, district and provincial certificates of canvass of votes shall each be supported by a statement of votes.



Within 1 hours after the canvassing, the Chairman of the district or provincial Board of Canvassers or the city board of canvassers of those cities which comprise one or more legislative districts shall electronically transmit the certificate of canvass to the commission sitting as the national board of canvassers for senators and party-list representatives and to the Congress as the National Board of Canvassers for the president and vicepresident, directed to the President of the Senate. o



The Commission shall adopt adequate and effective measures to preserve the integrity of the certificates of canvass transmitted electronically and the results in the storage devices at the various levels of the boards of canvassers.

The certificates of canvass transmitted electronically and digitally signed shall be considered as official election results and shall be used as the basis for the proclamation of a winning candidate.

COMELEC AS NATIONAL BOARD OF CANVASSERS 

The chairman and members of the COMELEC sitting en banc, shall compose the national board of canvassers for senators and party-list representatives. It shall canvass the results by consolidating the certificates of canvass electronically transmitted.



Thereafter, the national board shall proclaim the winning candidates for senators and party-list representatives.


CONGRESS AS NATIONAL BOARD OF CANVASSERS The Senate and the House of Representatives in joint public session shall compose the national board of canvassers for president and vice-president 

The certificate of canvass for president and vice-president duly certified by the board of canvassers of each province or city, shall be electronically 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 certificates in the presence of the Senate and the House of Representatives in joint public session and the Congress upon determination of the authenticity and the due execution thereof in the manner provided by law, canvass all the results for president and vicepresident and thereafter, proclaim the winning candidates.

RANDOM MANUAL AUDIT (RMA) Where the AES is used, there shall be a random manual audit in one precinct per congressional district randomly chosen by the Commission in each province and city. Any difference between the automated and manual count will result in the determination of root cause and initiate a manual count for those precincts affected by the computer or procedural error 

Guidelines on reading of ballots – the Chairman, prior to reading the votes cast, shall: o Check for over-voting in each position subject to RMA. o OVER-VOTE – situation where a voter selects more than the allowed number of candidate/s for a particular position i. In case there is an over-vote, such fact shall be recorded in the minutes by the Chairman but the vote shall not be counted for any candidate for that particular position. However, the fact of over-voting in any particular position will not invalidate the entire ballot. It shall remain valid and votes for other positions (that are not over-voted) shall be counted o In case an oval is not shaded properly or contains other marks (such as checks or crosses), the vote corresponding to the said candidate shall be counted but such fact shall be recorded in the minutes. The subject ballot shall then be placed in an RMA envelope for Ballots with Ambiguous Marks. o The rules on appreciation of ballots in manual system of counting shall not apply for purposes of the RMA 55

 

Manner of counting of votes o The Chairman shall form separate piles of 100 ballots each o The Chairman shall take the ballots of the first pile 1 by 1 and read st 1 the number assigned to the candidate followed by the candidate‟s name. st o For every ballot, the Chairman shall 1 announce the vote cast for President, Vice-President, Member of the House of Representatives, Governor and finally the Mayor. o The Secretary and the Member shall simultaneously record each vote read by the Chairman in the Audit Return and in the Tally Board, respectively. Each vote shall be recorded by a vertical line, th except every 5 vote which shall be recorded by a diagonal line crossing the previous 4 vertical lines o After each pile of 100 ballots have been read, the votes obtained by each candidate shall be added and the sum recorded on the space immediately after the last vote recorded. o The same procedure shall be followed with the succeeding piles of ballots o After all the ballots have been read, the Secretary and the member shall record, in words and figures, the total number of votes obtained by each candidate in the Audit Return and the Tally Board, respectively. o The Chairman shall accomplish the Minutes and enter the RMA and AES results for President, Vice-President, Member House of Representative, Governor and Mayor. The AES result shall be based on the Minutes of Voting and Counting o The RMAT shall note down the variance and the probable reasons for such variance.



During the counting, the Chairman, Secretary and Member shall position themselves in such a way as to give the watchers and the public an unimpeded view of the ballot being read by the Chairman, as well as the Audit Return and Tally Boards being simultaneously accomplished by the Secretary and Member, respectively.



The lawyer, poll watchers or representatives of political parties and/or candidates and the public shall not touch any RMA documents/paraphernalia. o The table used by the RMAT shall be cleared of all unnecessary things. o Any violation hereof shall constitute an election offense and shall be penalized in accordance with BP Blg. 881




Upon conclusion of the RMA, all RMAT members shall affix their signatures on the Minutes attesting to the contents thereof. Poll watchers shall witness the recording of entries and affixing of signatures of the RMAT member. The Chairman shall immediately notify the PES of the results of the RMA, who in turn, shall report the same to the TWG-RMA.



Effects of discrepancy between AES and RMA o In the event the results of the AES exceed the allowable margin of variance, Sec. 24 of RA 9369 shall apply - Congress as the National Board of Canvassers for President and Vice President o In no way shall the results of the RMA delay the proclamation of the winning candidates based on the results reached by the AES

AUTHENTICATION RETURNS

OF

ELECTRONICALLY

TRANSMITTED

ELECTION



The manner of determining the authenticity and due execution of the certificates shall conform with the provisions of RA 7166



The provisions may be supplemented or modified by the provision of RA 8436, as amended, where applicable, by appropriate authentication and certification procedures for electronic signatures as provided in RA 8792 as well as the rules promulgated by the SC pursuant thereto.

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CHAPTER SEVEN



CONTESTED ELECTIONS

May motu proprio or upon written petition, and after due notice and hearing: o

Meaning of Pre- proclamation controversy 

Any question or matter pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the COMELEC



Any matter raised under sections 233,234,235, and 236 of the Omnibus Election Code in relation to the preparation, transmission, receipt, custody and appreciation of the election returns and election and certificate of canvass.



Limited to challenges directed against the board of canvassers and proceedings before said board relating to particular election returns to which specific verbal objections subsequently reduced to writing should be made.







o

Election controversy raised before proclamation because after proclamation, the controversy becomes an election contest

COMELEC shall have EXCLUSIVE JURISDICTION over all preproclamation controversies involving LOCAL elective officials. o

EXCEPTION: pre-proclamation cases are not allowed in elections for President, Vice-President, Senator and member of the House of Representatives on matters relating to the preparation, transmission, receipt, custody and appreciation of election returns or the certificate of canvass, as the case may be, except as provided for in Sec. 30 thereof. 



What is allowed is the correction of ―manifest errors in the certificate of canvass or election returns.‖ By virtue, however, of the amendments introduced by RA 9369, pre-proclamation cases involving the authenticity and due execution of certificates of canvass are now allowed in elections for President, Vice-President, and Senators.



the reason for this is that unless the proclamation of a winning candidate is suspended, or if it has been held, set aside, the policy behind the allowance of pre-proclamation controversies, i.e. to prevent the losing candidates from grabbing the proclamation and delaying the resolution of the electoral contest, will be defeated

Proclamation of other winning candidates

Exclusive jurisdiction of the COMELEC 

order the partial or total suspension of the proclamation of any candidate-elect or annul partially or totally any proclamation, if one has been made, as the evidence shall warrant

Notwithstanding the pendency of any pre-proclamation controversy, the Commission may motu propio or upon the filing of a verified petition and after due notice and hearing, order the proclamation of other winning candidates whose election will not be affected by the outcome of the controversy

Controversy to be first heard and decided by a Division of the Commission o

Under the Constitution Art IX-C Sec 3: ―All election cases, including pre-proclamation controversies x x x shall be heard and decided in division, provided that motions for reconsideration shall be decided by the Commission en banc.‖ 

COMELEC division  all such election cases first be heard and decided



COMELEC En banc  does not have original jurisdiction, or authority to hear and decide the same at the first instance. But a petition for correction of manifest error in the Statement of Votes, or in the tabulation or tallying of the

Partial or total suspension or annulment of proclamation


57

results, a pre-proclamation controversy may be filed directly

Sec. 243 of the Omnibus Election Code, the following shall be proper issues that may raised in a pre-proclamation controversy: 1. illegal composition or proceeding (due to non-inclusion of votes) of the board of canvassers 2. canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in sections 233-236 of Omnibus Election Code 3. election returns prepared under duress, threats, coercion, or intimidation, or obviously manufactured or not authentic 4. when substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate/s

Summary Hearing of pre-proclamation controversies 

All pre-proclamation controversies shall be heard summarily by the COMELEC after due notice and hearing, decision shall be executory after 5 days from receipt by the losing party of the decision of COMELEC unless restrained by SC



Opportunity given to submit evidence in form of respective memoranda o



Required that the parties be notified and heard. Where the petitioners were also given an opportunity to submit evidence in support of their allegations, the Commission cannot be faulted for merely requiring the parties to submit their respective memoranda in amplification of their respective positions. Such a procedure is fair and consistent with the summary character of proceedings in election cases.

*the above enumeration is RESTRICTIVE AND EXCLUSIVE. Where election returns on their face regular and authentic 

Decision based on records and evidence elevated to Commission o

A summary proceeding does not mean that the Commission can do away with requirements of notice and hearing. However, presentation of evidence before the COMELEC is not at all indispensable in order to satisfy the demands of due process.

o

Under Sec 18, RA 7166 all that is required is that the COMELEC shall dispose of pre-proclamation controversies ―on the basis of the records and evidence elevated by the board of canvassers.‖

GENERAL RULE – in a pre-proclamation controversy, it is axiomatic that the Commission is not to look beyond or behind election returns which are on their face regular and authentic returns and investigate alleged election irregularities. o



EXCEPTION – principle does not apply where there is prima facie showing that the return is not genuine. o

 This is keeping with the policy of the law that cases of this nature should be summarily decided and the will of the electorate as reflected on the election returns be determined as speedily as possible.

A party seeking to raise issues (eg. fraud, vote-buying, terrorism, tampering and falsification) resolution of which would compel the Commission to pierce the veil, of the election returns prima facie regular has his remedy in a regular election protest.

However, where election returns, though genuine or authentic in character are reflective of fraudulent acts done before or carried out by the BEI, the returns would be deemed as ―obviously manufactured‖ which may be properly raised in a pre-proclamation controversy.

Where election returns obviously manufactured Issues that may be raised 

Not every question bearing or arising from the elections may constitute a ground for a pre-proclamation controversy. Under the




Correction of manifest errors in the tabulation or tallying of election returns or certificates of canvass is an issue that may be raised in a pre-proclamation controversy.

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



Sec 243(c) in relation to Sec 242 of the Omnibus Election Code, in giving the Commission jurisdiction over pre-proclamation controversies and allowing the suspension or annulment of any proclamation, requires, if the basis of the controversy is that election returns are manufactured, that this fact be obvious on the face of the returns.

Scope of pre-proclamation controversy 1) Issues limited to those enumerated under Sec 243 Omnibus Election Code 

―obviously manufactured‖ = if all votes reported in the election returns are cast in favor of a candidate or candidates of the same party, or if the results of the canvass are statistically improbable. In such a case, the results of the election would be unascertainable, making it necessary to conduct a require technical examination of the Voter‘s List and Voter‘s Affidavits o

Doctrine of statistical improbability – applied only where the unique uniformity of tally of all the votes cast in favor of all the candidates belonging to one party and the systematic blanking of all the opposing parties appear in the election returns. The doctrine has no application where there is neither uniformity of tallies nor systematic blanking of the candidates of one party.

The enumeration may be raised in a pre-proclamation controversy is restrictive and exclusive o



Reason underlying the delimitation both of substantive ground and procedure is the policy of election laws that preproclamation cases should be summarily decided, consistent with the law‘s desire that the canvass and proclamation be delayed as little as possible even if the proclamation of the winning candidates can be provisional in nature in the sense that such proclamation would be subject to the results of the election protest or protests that may be effected to be filed.

Aside from the public interest that impels the prompt disposition of pre-proclamation cases, the boards of canvassers particularly municipal, city and provincial, before which such controversies are initiated, are ad hoc bodies that exist only for the interim task of canvassing election returns

Where election returns found to be spurious or falsified o 

Outright exclusion of election returns on the ground that they were fraudulently prepared by some members or non-members of the BEI disenfranchises the votes. Hence, when election returns are found to be spurious or falsified, Sec 235 Omnibus Election Code provides the procedure which enables the COMELEC to ascertain the will of the electorate o



2) Issues regarding errors in the Statement of Votes 

Where the question raised is not as to the correctness of the election returns but that of the statement of votes taken from the returns by the board of canvassers during the canvassing and said error was not discovered by the protestant congressional candidate during the canvassing but only when she received a copy of the statement of the number of votes and she wasted no time in filing a protest with the board and then direct to the COMELEC since the board was not available, it was held the duty of the COMELEC to see to it that the matter should be verified from the election return as a pre-proclamation controversy, instead of requiring the protestant to bring the matter to the electoral tribunal as an election protest.



The law is silent as to when the issue regarding errors on the Statement of Votes may be raised. However, any such error would affect the proclamation made on the basis thereof and primordially, in order to determine the true will of the electorate, the matter may

Sec 235. The Commission shall then, after giving notice to all candidates concerned and after satisfying itself that nothing in that ballot box indicate that its identity and integrity have been violated, order the opening of the ballot box and, likewise after satisfying itself that the integrity of the ballots therein has been duly preserved, shall order the BEI to recount the votes of the candidates affected and prepare a new return which shall then be used by the board of canvassers as basis of the canvass.

If the integrity of the ballots have been violated, the COMELEC need not recount the ballots but should seal the ballot box and order its safekeeping in accordance with Sec 237 of the Omnibus Election Code.


the lack of innter paper seals in the election returns does not justify their exclusion from the canvassing. It is not a proper subject of a pre-proclamation controversy.

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be raised, as a pre-proclamation controversy directly with the Commission which is empowered to order the board of canvassers to reconvene and prepare a new Statement of Votes and Certificate of Canvass.



2. Returns will not be excluded on the occasion of a pre-proclamation controversy whose office is limited to incomplete, falsified or materially defective returns which appear as such on their face. 

If there has been sham voting or minimal voting which was made to appear as normal through the falsification of the election returns, such grounds are properly cognizable in an election protest and not in a pre-proclamation controversy.

 The Commission is not discharging its appellate jurisdiction under Sec 245 of the Code, which has to do with contests regarding the inclusion or exclusion in the canvass of any election returns, with a prescribed appellate procedure to follow.

But the COMELEC‘s findings on election returns, anchored on the ―manner of their preparation,‖ which it found to be a sham and spurious, said ground is a pre-proclamation issue, under Sec 241 & 243 in relation Sec 245 of the Code. Said returns cannot be accorded prima facie status as genuine reports of the results of the counts of votes

COMELEC Rules of Procedure which took effect on November 15, 1988, provides that the matter of correction of the statement of votes may be subject of pre-proclamation case which may be filed directly with the COMELEC.

3. A petition for recount must fail, in the absence of any clear showing or proof that the election returns, instances where a pre-proclamation recount may be resorted to, granted the preservation of the integrity of the ballot box and its contents are as follows:

o

When so elevated, the Commission acts in the exercises of its original jurisdiction for which reason it is not indispensable that the issue may be raised before the board during the canvassing.

o

Questions properly cognizable in an election protest 

i.

canvassed are incomplete or contain material defects, ii. appear to have been tampered with, falsified or prepared under duress, and/or iii. contain discrepancies in the votes credited to any candidate, the difference of which affects the result of the election

Questions as those involving the appreciation of the votes and the conduct of the balloting, which require more deliberate and necessarily longer consideration, are left for examination in the corresponding election protest.

1. Reopening of the ballot boxes is not a proper issue for a preproclamation controversy but should be threshed out in an election protest 



The Commission is duty to bound to investigate allegations of fraud, terrorism, violence and other analogous causes in actions for annulment of election results or for declaration of failure of elections. This, it may conduct technical examination of election documents and compare and analyze voters‘ signatures and fingerprints in order to determine whether or not the elections had indeed there been free, honest, and clean A pre-proclamation controversy is not the same as an action for annulment of election results or declaration of failure of elections




Complete election returns whose authenticity is not in question, must be prima facie considered valid for the purpose of canvassing the same and proclamation of the winning candidates



To expand the issues beyond those enumerated under Sec 243 and allow a recount/reappreciation of votes in every instance where a claim of misdeclaration of stray votes is made would open the floodgates to such claims and paralyze canvass and proclamation proceedings, given the propensity mandate that all pre-proclamation proceedings, shall be heard summarily by the COMELEC after due notice law‘s desire that the canvass and proclamation be delayed as little as possible.

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

The powers of the Commission are essentially executive and administrative in nature, and the question of WON there had been terrorism, vote buying and other irregularities in the election should be ventilated in a regular election protest (before the Senate Electoral Tribunal) and the Commission is not the proper forum for deciding such matters.

Abendante v Relato Election returns were ―obviously manufactured‖ and the lists of votes were padded were raised in a pre-proclamation controversy. The returns do not show prima facie that on the basis of the old List of Voters, there is actually a great excess of votes over what could have been legally cast. Petitioner‘s cause of action is the padding of the List of Voters which is NOT a listed ground for a pre-proclamation controversy but instead proper ground for an election protest.

Abella v. Larrazabal Objections to election returns where votes cast for original candidate who died were counted for the candidate who substituted the deceased were raised in a pre-proclamation controversy. The matter is not cognizable in a pre-proclamation controversy since it is summary in nature. Hence, questions as those involving the appreciation of the votes and the conduct of the campaign and the balloting, which require more deliberate and necessarily longer consideration, are left for examination in the corresponding election protest. The contention that the dismissal of the preproclamation controversy would render the disqualification case moot and academic is untenable. The 2 cases are independent of each other and one may be resolved separately without affecting the other.

Datu Sinsuat v Pendatun

Grand Alliance for Democracy v COMELEC A pre-proclamation controversy is limited to challenges directed against the Board of Canvassers, not the BEI. The padding of the List of Voters may constitute fraud, or that the BEI may have been fraudulently conspired in its preparations, would not be a valid basis for a pre-proclamation controversy either. For whenever irregularities, such as fraud, are asserted, the proper cause of action is an election protest

COMELEC dismissed pre-proclamation cases against private respondent who filed an election protest ad cautelam. Election protest was filed subject to disposition of pre-proclamation controversy. Petitioner‘s intention is the express reservation he made in the protest ad cautelam itself, that he was filing the protest, ‗without withdrawing his petitions in said pre-proclamation controversy.

Agbayani v COMELEC

Ututalum v COMELEC Where the winning candidates have been proclaimed, the pre-proclamation controversies cease. A pre-proclamation controversy is no longer viable at this point in time and should be dismissed. The proper remedy therafter is an election protest before the proper forum (i.e. House Electoral Tribunal). Recourse to such remedy would settle the matter in controversy conclusively and once and for all.


Authority of COMELEC to annul proclamation which was illegally made. Considering the summary nature of the pre-proclamation controversy, there is no reason wherein it cannot be speedily resolved on the basis of the evidence and the arguments already submitted by the parties. These must have been thoroughly examined by the COMELEC. And if more evidence is to be adduced, this should not take too much more time; at least the COMELEC should see to it that it does not. The COMELEC must be especially wary of dilatory tactics that may further postpone the final resolution of this contest. The Court stressed that there is a need for an early resolution of the pending cases to ultimately determine the winner in the gubernatorial election or, if an election protest is inevitable, to pave way for it as soon as possible.

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Dimaporo v COMELEC The common ground for the 3 appeals to the COMELEC was that the question election returns were ―spurious, obviously manufactured and/or statistically improbable.‖ Technical examination of the signatures and thumbmarks of the registered voters affixed to their voter‘s affidavits and to the lists of voters in the voting records in the contested precincts is not preproclamation matter, but fall under the jurisdiction of the electoral tribunals as sole judges of all contests relating to the elections, returns and qualifications. With regard to the issues wherein (i.) the COMELEC rejected the petitioners‘ appeal from adverse rulings of the Maguindanao Provincial Canvassers relating to certain assailed election returns from 3 municipalities and (ii.) wherein the COMELEC held the petitioners‘ failure to present evidence before the Maguindanao Provincial Board of Canvassers was fatal. SC ruled that the mandatory requirement to comply with procedure for preproclamation controversies in view of the public policy to have a quick determination of the result of the election. By their nature, pre-proclamation controversies already delay proclamation. To allow the deviation from procedural requirements is to open cases of this nature to protracted uncertainty because new grounds and new issues can be raised at the different levels of jurisdiction.

Grounds relied upon are proper in an election contest. Proclamation of Capco enjoys presumption of regularity and validity. Since it is an election protest involving a municipal position, the proper tribunal with exclusive original jurisdiction is the RTC. Comelec exercises appellate jurisdiction over the RTC decision pursuant to Article 9-C Section 2(2) of the Constitution.

Laodenio v. COMELEC Facts: Petitioner and respondent were candidates for the position of municipal mayor. Respondent was proclaimed winner by the Municipal Board of Canvassers (MBC). Petitioner filed an action with the COMELEC to annul respondent‘s proclamation and to question the constitution of the MBC as well as its proceedings . 5 days later healso filed an election protest with the RTC. Comelec dismissed the petition Issues w/n the direct filing of petition to COMELEC to contest the illegal conduct of the MBC is allowed? (YES) w/n the pre-proclamation controversy was rendered moot and academic by filing the ordinary election protest? (YES)

Borja v. COMELEC Held/Doctrine Facts: Borja and Capco both vied for the position of Mayor of Pateros. Capco was proclaimed as winner and began serving his term as mayor. Borja filed a petition in COMELEC to declare a failure of election and to nullify the canvass and proclamation of CAPCO. Borja alleges lack of notice of the date and time of canvass, fraud, violence, and terrorism. Comelec en banc dismissed the petition on the grounds that the grounds relied upon by Borja warranted only in an election contest ISSUE: does a petition to declare a failure of election qualifies as an election case or a pre-proclamation controversy, if it is an election case, the Constitution mandates that it be heard and adjudged by thee Comelecthrough any of its divisions Held/ Doctrine: Petition is neither an election case nor a pre-proclamation controversy Comelec en banc is only empowered to resolve MR of cases decided by a Comelec division Election Law Reviewer (2012)

Section 17 and 19 of RA 7166( Providing for a Synchronized National and Local Elections and for Election Reforms) provide that questions affecting the composition/proceedings of the board of Canvassers may be initiated on the board or directly with the COMELEC. However matters raised under 233-236 of the OMNIBUS Election Code in relation to the preparation, transmission, receipt, custody, and appreciation of the election returns, and the Certificate of canvass sha;; be brought in the FIRST INSTANCE BEFORE THE BOARD OF CANVASSERS ONLY. Further, parties adversely affected by the ruling of the Board of Canvassers may appeal to COMELEC within 3 days from a ruling thereon. ONCE a competent tribunal has acquired a jurisdiction of an election protest or a petition for quo warranto all questions relative thereto will have to be decided in the case itself and not in another proceeding, otherwise there will be a confusion and conflict of authority. 62

Salih v. COMELEC Facts: MBC ruled to canvass the contested election returns for mayor on the ground that there was no sufficient proof to warrant their exclusion as defective or fraudulent returns. MBC did not proclaim any winner, its decision nd nd have been raised on appeal to the COMELEC 2 division. The 2 division ruled to include 3 of the questioned election return and to exclude two returns form precincts 10 and 10-A. As a result MBC proclaimed PS as winner. However, the COMELEC EN BANC nullified the proclamation and ordered the inclusion of the election returns from precincts 10 and 10-a Issue: Did the COMELEC en banc correctly reversed the decision of the nd Comelec 2 division? Held/ Doctrine: Yes. The second division excluded the election returns from the said precincts because of the belief that no actual election was held there and that the election returns were manufactured. However there are no evidence of such sham and fraudulent voting. Note: when the election returns on their face appear regular and wanting of any physical signs of tampering, alteration, etc, the second division could not exclude the contested election returns on the occasion of a pre-proclamation controversy. If there had been sham voting or minimal voting which was made to appear to be normal, the action should have been an election protest.

Jamil v. COMELEC The Omnibus Election Code prohibits the proclamation by the Board of Canvassers of a candidate as winner where returns are contested, unless authorized by the COMELEC. When no authority is given by the COMELEC in such case, proclamation is null and void. Incomplete Canvass of votes is illegal and cannot be the basis of of a valid proclamation.

Pre and post proclamation proceedings should be resolved summarily but not ex parte. It is true that RA 7166 provides for summary proceedings in pre-proclamation cases and does not require a trial type hearing. Nevertheless summary proceedings cannot be stretched to mean ex parte proceedings. Summary means with dispatch, with the least possible delay. It signifies that the power may be exercised without a trial in the ordinary manner prescribed by law for regular judicial proceeding. Although it is summary, the adverse party must at least be notified so that he can be apprised of the nature and purpose of the proceeding Pre proclamation controversies on election returns or cerificates of canvass must be disposed of summarily by the COMELEC on the basis of records and evidence adduced in the Board of Canvassers.

Suspension of proclamation and period for filing of election protest Section 248 of the Omnibus Election Code provides that the filing with the COMELEC of a petition to annul/suspend the proclamation of any candidate shall SUSPEND the running of the period within which to file an election protest or quo warranto proceedings. COMELEC shall have exclusive jurisdiction of all pre-proclamation controversies. COMELEC may order the partial or total suspension of the proclamation of the candidate elect or annul partially/totally any proclamation a) motuproprio b) upon written petition, and after due notice and hearing What are the grounds for the suspension of proclamation? a) filing of pre-proclamation controversy(Section 248 Omnibus Election Code) b) when there is an action for disqualification, when evidence of guilt is strong ( RA 6646) c) when there is ground for denying or cancelling a candidate‘s certificate of candidacy (RA 6646) NOTE: The order of COMELEC to suspend proclamation is merely provisional in nature and can be lifted when evidence warrants. It is akin to a TRO which a court can issue ex parte under exigent circumstances.

Velayo v. COMELEC Election Law Reviewer (2012)

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Is an action for declaration of failure of election in the nature of a preproclamation controversy? NO!

(in pre-proclamation controversies, the rules on presenting evidence and appealing the rulings of the Board of Canvassers are MANDATORY)

Distinction between action for declaration of failure of election and preproclamation controversy

Procedure is taken from section 20 RA 7166 1. Any candidate, political party or coalition contesting the inclusion or exclusion in the canvass of any election returns (under Sec 234-236 of Art. XIX of the Omnibus Election Code) shall submit their ORAL OBJECTION to the chairman of the board of canvassers when the questioned returns are presented for inclusion in the canvass. Objection recorded in the minutes of the canvass

Pre-Proclamation Controversy COMELEC is restricted to an examination of the election returns on their face COMELEC has no jurisdiction to go beyond election returns and investigate election irregularities

Failure of Election and annulment of election returns COMELEC is duty bound to investigate allegations of fraud, terrorism, violence and other analogous causes COMELEC may conduct technical examination of election documents Compare and analyze voter‘s signatures and fingerprints.

2.

Upon receipt of objection, the board shall DEFER the canvass of the contested returns and proceed to canvass the uncontested returns. a. simultaneous with the oral objection, written objections must also be entered b. w/in 24 hours from objection, must submit evidence attached to the written objections c. w/in same 24 hours, any party may file written and verified opposition to the objection, attaching supporting evidence; the board shall not entertain objection or opposition unless in writing d. evidence attached admitted into the records of the board by the chairman affixing his signature at the back of each evidence

3.

upon receipt of evidence, the board shall take up the contested returns, written objections thereto and opposition, and summarily RULE thereon (read Ruling by board on objections below)

4.

adverse party INFORM the board of intention to appeal said ruling, board shall enter said information in the minutes of the canvass, set aside the returns and proceed to consider other returns

5.

after all uncontested returns have been canvassed and contested returns ruled upon, board shall SUSPEND the canvass, and any adverse party may file a written and verified NOTICE OF APPEAL with the board w/in 48 hours from suspension, and an appeal may be taken to COMELEC w/in an non-extendible period of 5 days after filing of notice.

6.

Upon receipt of notice, the board make a REPORT to Comelec, elevating the complete records and evidence in the canvass, and serving parties with copies of the report

7.

On the basis of records and evidence elevated, Comelec shall DECIDE summarily the appeal w/in 7 days from receipt of records and evidence. An appeal w/o the accomplished forms and evidence appended shall be

Remedy after winning candidate has been proclaimed After proclamation and assumption of office by the candidate, a preproclamation controversy no longer viable and should be dismissed because the proper remedy is an electoral protest where parties are to present witnesses subject to the right of confrontation instead of mere affidavits to settle the controversy once and for all. Proclaimed and installed candidate may be unseated when: 1. opponent is adjudged true winner by final judgment of a court in the election contest 2. prevailing party is declared ineligible or disqualified by final judgment of a court in a quo warrantocase 3. incumbent is removed from office for cause 4. proclamation is null and void as declared by COMELEC Contested composition or proceedings of the board of canvassers Parties adversely affected by the ruling of the board of canvassers on the composition or proceedings of the board may appeal the matter w/in 3 days from the ruling to COMELEC which will summarily decide w/in 5 days from filing.

Procedure in disposition of contested election returns


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8.

summarily dismissed. Decision shall be executory after 7 days from receipt of decision by losing party.

has only the ministerial task of tallying the votes as reported in the election returns and cannot judicially decide an election contest.

Board of canvassers shall not PROCLAIM any candidate as winner unless authorized by Comelec after ruling on the appeal of the losing party,otherwise, the proclamation is void ab initio, unless the contested returns will not adversely affect the results of the election.( this particular rule applies only to a void proclamation in relation to contested returns and not to contested qualifications of a candidate)

When is exclusion of election returns justified?  To justify exclusion of election returns, the alleged threats etc. which attended the preparation of said returns must have affected the regularity or genuineness of the contested returns. If the election returns reflect the true results of the voting at precint level, any coercion and intimidation that may give rise to legal, and criminal liability, will not justify the exclusion of the returns.

Requirements with respect to objections 1. In written form with supporting evidence attached thereto. Objections must be reduced in writing. Evidence must also be presented within 24 hours. Non compliance with the mandatory procedure will result in the summary dismissal of the appeal. Petitioner has burden to prove that he has aa) prima facie case for his objection and b) the evidence he will present regarding the exclusion will change the results of the election.

Example: X obtained 5 votes in a precint, by reason of force and intimidation, the BEI was compelled to make an entry of 50 votes for X. (in this case exclusion is proper) However, even if there is coercion and intimidation but the same did not alter the returns, exclusion will not be justified. Pre-proclamation cases 1.

2. Evidence must be CLEAR and CONVINCING

Not allowed in elections for President, Vice President, Senator, and Members of the House of Rep but does not preclude the canvassing body motuproprio or upon written complaint to correct manifest errors in the certificate of canvass or election returns before it

3. Reasons for the requirements: the requirements are crucial to the delivery of speedy and equitable relief in pre-proclamation controversy.

Questions affecting the composition or proceedings of the Board of Canvassers may be initiated in the board or directly with Comelec under Sec 17 of RA 7166

A mere allegation that certain returns are altered or are spurious will not operate to exclude it from canvassing

Note: ABSENT any showing of grave abuse of discretion, findings of COMELEC or any admin agency on this matter are binding on the SC.

2.

Pre-proclamation cases on provincial, city and municipal offices shall be allowed and governed by sec 17-22 of RA 7166

Ruling by board on objections

3.

General Rule: All pre-proclamation cases pending before Comelec deemed terminated at the beginning of the term of the office involved and the rulings of the Board of Canvassers deemed affirmed, w/o prejudice to the filing of regular election protest by the aggrieved party.



Board of Canvassers must make a written ruling on the formal objections. Failure or refusal to do so not prejudice objecting party‘s right to elevate case to Comelec for proper review.

When is a ruling improper or not necessary?  Board ruling not necessary or proper where the matter is beyond its competence, such as inclusion or exclusion in the canvass of election returns. Immaterial that the inclusion of votes would affect the overall results, as long as the returns appear to be authentic and duly accomplished, the board cannot look beyond them to verify irregularities in the casting or counting of votes. Board


Exceptions: Proceedings may continue when based on the evidence, Comelec determines that the petition is meritorious and shall order to continue the proceedings, or when the Supreme Court orders the continuance in a petition for certiorari. Running of the period to file election protest suspended by the pendency of such cases before Comelec or the SC.

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Note: after the winning candidates have been proclaimed and commenced their terms, proclamation issues are rendered moot and academic. 4.

5.

To commence pre-proclamation case: Questions on the composition or proceedings of the Board of Canvassers may be initiated in the board or directly with Comelec. Matters under sec 233-236 of the Omnibus Election Code related to the preparation, transmission, receipt, custody and appreciation of the election returns, and the certificates of canvass shall be brought in the first instance before the board of canvassers ONLY. All pre-proclamation cases on election returns or certificates of canvass shall, on the basis of records and evidence elevated to Comelec by the board of canvassers, be disposed summarily by Comelec w/in 7 days from receipt thereof. Decision executory after 7 days from receipt by the losing party of the decision.

Jurisdiction of Comelec over pre-proclamation cases governed by less rigid standards of administrative due process. NOTE: Election Protests vs. Petition for Quo warranto Election Protest Purpose is to ascertain whether the candidate proclaimed by the Board of Canvassers is the true and lawful choice of the electorate It is a contest between the defeated and winning candidates on the grounds of Frauds/ Irregularities in the casting and counting of ballots, or in the preparation of the returns. It raises the questions of who actually obtained the plurality of the legal votes, and, therefore entitled to hold the office It can only be filed by a candidate who has duly filed a certificate of candidacy and has been voted for in the preceding elections


Effect of filing an election protest or a petition for quo warranto General Rule: the filing of an election protest or petition for quo warranto precludes subsequent filing of a pre-proclamation case, or amounts to an abandonment of one earlier filed; thus depriving Comelec of authority to inquire into the title of the protestee or the validity of his proclamation. Reason: once the competent tribunal has acquired jurisdiction of an election protest or petition for quo warranto, all related questions will have to be decided in the case itself to prevent confusion and conflict of authority. This is to prevent confusion and conflict of authority. NOTE: After a proclamation has been made, a pre-proclamation case is no longer viable. Exceptions to the GR: 1. Board of canvassers improperly Constituted 2. Quo warranto was not proper remedy 3. What was filed was petition to annul a proclamation 4. Filing of the quo warranto or election protest expressly made w/out prejudice to the pre-proclamation case or was made ad cautelam 5. Proclamation was null and void Actual and compensatory damages may be awarded in election contests or quo warranto proceedings.

Quo Warranto (election) Special Civil Action

Institution of Election Contest: Raises the issue of disloyalty or ineligibility of the winning candidate

An election contest may be an election protest or a quo warranto. While these two are distinct remedies, they have a common objective: to dislodge a winning candidate from office. Right to institute election contest

It is a proceeding to unseat respondent from office but necessarily to install petitioner in his place ANY VOTER may initiate action.

the not the the

1.

Duties of Board of canvassers merely of ministerial nature and their certificate of election being the prima facie evidence of election, it is competent for a defeated candidate who has not caused or contributed to the irregularities or frauds, to institute proceedings for the determination of the title to the office.

Sec 250 of Omnibus Election Code: protest must be filed by a candidate who ―has duly filed his certificate of candidacy and has been voted for the same office.‖ It does not require that the matter be specifically alleged in the protest.

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2.

Election protest may be lodged only against a proclaimed candidate and which must be filed w/in the period prescribed to ascertain whether the such candidate is really the lawful choice of the electorate.

A counter protest is equivalent to a counterclaim and must be presented as part of the answer w/in the time the protestee is required to answer, otherwise, the court acquires no jurisdiction to entertain it. 3.

When candidate has been proclaimed as elected, taken his oath and assumed the duties of his office, the remedy of the defeated candidate is not pre-proclamation contest but electoral protest, under the assumption of a valid proclamation.

b. Failure to perfect an appeal defeats the right of appeal of a party and precludes the appellate court from acquiring jurisdiction over the case. Nevertheless, the SC may give due course to appeals on the basis of strong and compelling reasons such as serving the ends of justice and preventing grave miscarriage of justice in the exercise of its equity jurisdiction. Rules involving election cases are impressed with public interest thus must be construed liberally. c. The power to annul an election should be exercised with the greatest care as it involves the free and fair expression of the popular will. SC’s jurisdiction to review decisions and orders of electoral tribunals (Comelec) operates only upon a clear showing of grave abuse of discretion.

Null and void proclamation due to clerical error and simple mathematical mistake in the addition of votes, and not through the legitimate will of the electorate, Comelechas authority to annul the canvass and the proclamation. Validity of proclamation may be challenged even after the irregularly proclaimed candidate has assumed office. Once proclamation nullified, case reverts to a pre-proclamation controversy. Election contest imbued with public interest 1. Deep public interest to determine true choice of people – election contest imbued with public interest unlike an ordinary action. Time is of the essence in the disposition of an election protest. Neither fair nor just that one whose right to the office is doubted should remain on that office for uncertain period.The COMELEC in order to do justice and truly determine the rightful winner in the elections, may suspend its rules if they stand in the way of finding the truth. 2. Election contest survives death of either party thereto—the right to a public office is personal and exclusive to the public officer. BUT an election protest is NOT because it is imbued with public interest.

The annulment of an election on the ground of fraud, irregularities, and violations of election laws may be raised as an incident to an election contest. Such grounds may be invoked in an election protest case. d. Execution pending appeal—Rules of Court allows RTC to order execution pending appeal upon good reasons stated in the special order, can be applied to election protests (rule 41 Comelec rules of procedure) decided by the courts. Motion for execution pending appeal may be filed any time before the period for perfection of the appeal. e. Pleading and Practice- the rules of civil procedure do not apply to election cases. They apply only by analogy or in a suppletory character and whenever practicable and convenient. Election Contests are subject to the COMELEC Rules of Procedure which should be applied with LIBERALITY. It is not required that a petition contesting the election of any municipal official be accompanied by a certification of non-forum shopping. f.

3. Election laws liberally construed to the end that the will of the people in the choice of public officers may not be defeated by mere technical objections. a. Failure to raise a ground in protest does NOT preclude Comelec from rejecting the protest on that ground. It is not intended that the contest set forth the grounds of his protest with the same precision as required of a pleading in ordinary civil cases.


Winning candidate‘s qualification- To challenge the winning candidate‘s qualifications, the petitioner must clearly demonstrate that the ineligibility is so patently antagonistic to constitutional principles and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the of the people would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitutions and laws so zealously protect and promote.

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Defensor Santiago v. Ramos FACTS: This is an original action filed before the SC acting as a Presidential Electoral Tribunal.Miriam Defensor-Santiago (DS) ran for presidency in the 1992 National Elections. She lost, but filed election protest against the winner, Pres. FV Ramos. Subsequently however, she ran for Senator in the 1995 Senatorial elections. She won and assumed office as Senator in 1995. Considering this factual milieu, the issues revolve on whether electoral protest would still be valid, even after theprotestant has already assumed office as Senator, noting that should she win in the protest, her term as president would coincide with her term as senator, which she is now in. The SC as PET decides the case. HELD: There was abandonment of protest. DS filed her certificate of candidacy to run for senator without qualification or reservation. In doing so, she entered into a political contract with the electorate, that, if elected, she would assume the office as senator. This is in accord with the constitutional doctrine that a public office is a public trust. In assuming the office of Senator, she has effectively abandoned her determination to pursue this present protest. Such abandonment operates to render this protest moot. Also, the PET issued a resolution ordering the protestant to inform the PET within 10 days if after the completion of the revision of the ballots from her pilot areas, she still wishes to present evidence. Since DS has not informed the Tribunal of any such intention, such is a manifest indication that she no longer intends to do so.

What is a demurrer to evidence? A demurrer to evidence is an objection by a party to an action to the effect that the evidence which his adversary produced is insufficient in point of law to make out a case or sustain in the issue in the case. It is equivalent to a motion to dismiss. Rules of Civil Procedure is not applicable to election cases except by analogy or in suppletory character. Can the Rules on Demurrer to evidence be applied in election cases even by analogy or in suppletory character? NO Election Law Reviewer (2012)

Reason: the nature of election case is different from ordinary civil action. Estrada v. Domingo- the early resolution of election cases should not be hampered by any unnecessary observance of procedural rules. Effects of demurrer to evidence of protestant In election protests, the protestee should not be permitted to present a motion for dismissal or a demurrer to the evidence of the protestant, unless he waives the introduction of his own evidence in case the ruling on his motion or demurrer is adverse to him, in which case the court that tries the case must definitely decide it. Jurisdiction over election contests 1. Local officials – Comelec exercises exclusive jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial and city officials, appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or elective barangay officials decided by trial courts of limited jurisdiction. An original Special civil action for certiorari, prohibition, or mandamus against a RTC in an election contest may be filed only in the CA or SC. 2. Municipal and barangay officials—RTC and MTC exercise exclusive original jurisdiction over election contest involving municipal and barangay officials respectively. Decision of RTC (re: Municipal Officals) may be appealed to Comelec w/in 5 days from promulgation or receipt of a copy of decision by aggrieved party. Comelec shall decide the appeal w/in 60 days after it is submitted for decision, but not later than 6 months after the filing of the appeal, which decision shall be final, unappealable, and executory. Motion for reconsideration in the trial court not allowed by the Omnibus Election Code sec 26 and the Comelec Rules of Procedure sec 20 rule 35, thus its filing will not suspend the period to appeal. Courts shall give preference to election contests over all other cases, except those of habeas corpus, and shall hear and decide the case within 30 days from date of submission for decision but not later than 6 months after filing.

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3. Members of Congress – Senate and House of Rep shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Electoral Tribunal = composed of 9 members: 3 are Justices of the SC designated by the Chief Justice, 6 are members of the Senate OR House of Rep chosen on the basis of proportional representation from political parties and organizations under the party-list system. The senior Justice shall be the chairman. RA 6646: Comelec does not lose jurisdiction to hear and decide a pending disqualification case against a Congressional candidate. Jurisdiction of Electoral Tribunal begins only after a candidate has become member of Senate or House of Rep, once ha heas been proclaimed, taken his oath, and assumed office. The fact the electoral tribunal is the sole judge of all election contests involving members of Congress does not bar the SC from entertaining petitions which charge the electoral body with grave abuse of discretion, 4. President or Vice-President – SC en banc shall be the sole judge of all contests relating to election, returns, and qualifications of the P and VP, and may promulgate its rules for the purpose. Assumption of Office During Pendency of Election Protest The pendency of an election contest is not a sufficient basis to enjoin one who has been proclaimed as duly elected from assuming office as required of him by law, otherwise the efficiency of public administration would be impaired. Until the election protest is decided against the winning candidate, he has a lawful right to assume and perform the duties and functions of the office. Rules of Court allows execution pending appeal in election cases upon good reasons. Expiration of term of the office contested renders the election contest moot and academic and is a ground for its dismissal, unless rendering of decision on the merits would be of practical value.

EXECUTION pending APPEAL in Protest Cases What are the requisites in order to grant execution pending appeal? The following requisites must concur a. There must be a motion by the prevailing party with notice to the adverse party b. There must be ―good reasons‖ for the execution pending appeal c. The order granting execution pending appeal must state the good reasons. What are considered “good reasons”? a. The public interest involved or the will of the electorate b. The shortness of the remaining portion of the term of the contested office, and c. The length of time that the election contest has been pending * A combination of two or more of the above stated reasons will suffice to grant execution pending appeal. * Section 2, Rule 39 of the Rules of Civil Procedure applies in suppletory character to election cases. Thus, allowing execution pending appeal in the discretion of the court. Distinctions between defective elections and defective returns 1. Return is set aside only when it is tainted with fraud, or with the misconduct of the election officers, that the truth cannot be deduced from it. The duty still remains to let the election stand and to ascertain from other evidence the true state of the vote. The return may be excluded and set aside at the cost of disenfranchising the voters only on the clearest and compelling showing of their nullity, otherwise, they shall be included and considered prima facie valid for the purpose of canvassing the same and proclaiming the winning candidate. 2. Election is only set aside when it is impossible from any evidence w/in reach to ascertain the true result. Annulment of an election can be justified where as a result of the irregularity many unqualified voters have their names inscribed in the official list, and it was impossible to segregate the legal from the illegal votes. Power to throw an election should be exercised with the greatest care and only under circumstances w/c demonstrate beyond reasonable doubt that the disregard of the law has been so fundamental that it is impossible to


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distinguish what votes are lawful and unlawful, or to arrive at any certain result whatsoever, or that the great body of voters have been prevented by violence, intimidation and threats from exercising their franchise. Where illegality reflects more than 50% of the total number of votes cast, the annulment of the election is justified because the remainder does not Constitute a valid Constituency. Irregularities affecting election Irregularities not from wrongful intent, in the manner of calling, holding or certifying the election which do not affect the result, will be ignored. 1. Irregularities must have affected election result – protestant must be prepared to show that the irregularities were of such a nature or the illegal votes were of such a number as to materially alter the results, thus rendering the election void. 2. Mandatory provisions must be observed—where the statute requires an act to be done as essential to the validity of the election, or declares it void if not observed. However, election laws are considered directory after elections to give effect to the will of the electorate. 3. Evidence must be convincing—in the absence of clearly convincing evidence, the election returns and canvassing proceedings must be upheld. 4. Intimidation or violence must justify exclusion of election returns—it must be clearly appear that there was such a display of force as ought to have intimidated men of ordinary firmness. Where such violence and intimidation are shown, election will be set aside. But where election has actually been had and the mass of electors have voted, it must be shown that the number of voters prevented was sufficient to change the result, otherwise the election must stand. To justify the exclusion of election returns, the alleged threats, intimidation or violence that attended the preparation of the said returns must have affected the regularity or genuiness of the contested returns. Evidence on the election Rule on Evidence: 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 protest or counter protest. The court can only consider the evidence presented prior to the submission of the case for decision or resolution. It must not take into account evidence presented therafter without obtaining prior leave of court. Election Law Reviewer (2012)

1. Election Returns – used in the canvass of votes. The ballots are the best evidence as to the correctness of the number of votes of each candidate. But where ballots cannot be produced, the election returns are the next best evidence. a. Where actual voting had taken place, the election returns cannot be disregarded and have prima facie status as bona fide reports of the results of the voting. Party alleging that election results are fake or tampered must submit convincing proof. Only when election returns are palpably irregular (not formal defects) may they be rejected. b. It is presumed that the election officials have done their duty and the returns made are full and fair statement of the true result, until they are shown to be unreliable. Principle of falsus in uno, falsus in omnibus—when the returns are shown to be fraudulent and false in part they must be rejected altogether. Returns may be corrected by parol and by written evidence. 2. Ballots – the election returns being rejected, the ballots are resorted to. The right of office comes from the ballots and not from the certificate of returns. Recourse to the ballots presupposes that they have been kept as required by law and that they still exist in the same integrity as when cast. When there is an allegation in an election protest that would require the perusal, examination, or counting of ballots in evidence, it is the MINISTERIAL duty of the TRIAL COURT or the COMELEC (or its division) to order the opening of the ballot boxes and the examination and counting of the ballots therein. Note: photocopies of ballots deemed not best evidence thereof. 3. Poll-books and tally sheets –required by law to be kept showing who has voted and who are legally entitled to vote, resort may be had to these books or sheets to ascertain the number of votes cast and persons who have voted. 4. Election officials—where the ballots not kept as required by law, after proof of loss of the tally sheets and poll-books, the evidence of the election officers may be received to show what was the result of the election as counted and declared by them

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5. Voters—illegality in casting of vote by persons unqualified cannot be allowed to change the result, unless it can be shown for whom they voted. While a voter who legally voted cannot be compelled to state how he voted, a person who voted illegally may be compelled to disclose how he voted except where his answer might tend to incriminate him. 6. Certificate of votes—issued by the Board of Election Inspectors to watchers. It shall be admissible in evidence to prove tampering, alteration, falsification, or any other anomaly committed in the election returns, when duly authenticated by testimonial or documentary evidence presented to the board. Failure to present certificate of votes is a bar to the presentation of other evidence of authenticity of the election returns. It is also evidence of the votes obtained by candidates. But it is not used where the integrity of the election returns is not in question. A certificate of votes does not constitute sufficient evidence of the true and genuine results of the election. ONLY election returns are sufficient evidence pursuant to Sections 231, 233-236 and 238 of the Omnibus Election Code.



CASES: 1. Garay v COMELEC 2. Manahan v Bernardo 3. Trinidad v COMELEC

Effect of ineligibility or death of candidate receiving majority of votes 

English rule: If the ineligibility of the winner candidate was known to the voters, or if the fact were so notorious that they must be presumed to have known it, the votes cast for him must NOT be counted, hence the eligible candidate having the next highest number of votes must be deemed elected.



Philippine jurisdiction: The fact that a majority of the votes cast for an ineligible candidate, or a candidate is later declared to be disqualified, does NOT entitle the candidate with second highest votes to be declared elected but results in the nullity of the election. A permanent vacancy in the contested office is created which should be filled by succession.



But if the electorate cast their votes in favor of the ineligible candidate fully aware of the other candidate‘s qualification, the electorate are deemed to have thrown away their votes, and the eligible candidate obtaining the next highest votes may be deemed elected.



Votes cast for a candidate are presumed to have been cast in the belief that the candidate is qualified, thus such votes cannot be void. The subsequent finding of disqualification cannot retroact to the date of elections so as to invalidate the votes cast for him.

7. Thumbprints of Voters- The Examination of Thumbprints may be sanctioned by the SC, where a recount or revision of the ballots will not be reflective of the sovereign will due to the irregularities committed during the elections. Rules on the use of ballots as evidence as against election returns 

Ballots cannot used to overturn the official count as reflected in the election returns unless it is first shown affirmatively that the ballots have been preserved with a care which precludes the opportunity of tampering and all suspicion of change, abstraction or substitution



The burden of proving the integrity of the ballot has been preserved in such a manner is on the protestant



Where a mode of preserving the ballots is enjoined by law, proof must be made of such substantial compliance with that law



It is only when the protestant has shown substantial compliance with the provisions of law on the preservation of the ballots that the burden of proving the actual tampering or the likelihood thereof shifts to the protestee


On if it appears to the satisfaction of court or COMELEC that the integrity of the ballots have been preserved should it adopt the result as shown by the recount and not as reflected in the election returns

Right of winner in an election contest to recover damages 

Omnibus Election Code: Actual or compensatory damages may be granted in all election contests or in quo warranto proceedings. 71







Comelec Rules of Procedure: in all election contests the Court may adjudicate damages and attorney‘s fees as it may deem just and as established by evidence if claimed in the pleadings. Art 2199 of Civil Code: Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved, referred to as actual or compensatory damages. Actual or compensatory damages are appropriate only in: 1. breaches of obligations in contracts, quasi-contracts, crimes and quasi-delicts where the defendant may be held liable for all damages the proximate cause of which is the act/omission complained of, otherwise, 2. the claimant must point a provision of law authorizing a money claim for election protest expenses against the losing party; such as Art 19, 20, and 32 of Civil Code governing human relations.

Rules: 1. Notwithstanding a subsequent ouster as a result of an election protest, an elective official proclaimed as winner by the Comelec and assumed office, is entitled to compensation, emoluments and allowances provided for the position. 2. Ousted elective official is not obliged to reimburse the emoluments but liable for damages when found responsible for any unlawful or tortuous acts in his proclamation. 3. The victorious party in an election case cannot be indemnified for expenses in the electoral contest, unless a wrongful act or omission or breach of obligation is clearly attributable to the losing party. 4. If damage had been suffered by the private respondent due to execution of judgment pending appeal, the damage is damnum absque injuria = damage w/out injury or damage inflicted w/out injustice, loss or violation of a legal right, or wrong done for which the law provides no remedy.

Chapter Eight:

ELECTION OFFENSES Jurisdiction over election offenses: 

An examination of the provisions of the Constitution and the Omnibus Election Code reveals the clear intention to place in the COMELEC exclusive jurisdiction to investigate and prosecute election offenses committed by any person, whether private individual or public officer or employee, and in the latter instance, irrespective of whether the offense is committed in relation to his official duties or not.



It is the nature of the offense and not the personality of the offender that matters. As long as the offense is an election offense, jurisdiction over the same rests exclusively with the COMELEC, in view of its all-embracing power over the conduct of election.

Criminal and electoral aspects of an election offense: 

Criminal aspect – involves the ascertainment of the guilt or innocence of the accused candidate like in any other criminal case, it usually entails a full-blown hearing and the quantum of proof required to secure a conviction beyond reasonable doubt.



Electoral aspect – determination of whether the offender shall be disqualified from office. This is done through an administrative proceeding which is summary in character and requires only a preponderance of evidence. In a disqualification case, it is the electoral aspect that is involved under which an erring candidate may be disqualified even without prior criminal conviction.

Prohibited acts and election offenses under the Omnibus Election Code: 1. Vote buying and vote-selling. o


Any person who gives, offers, or promises money or anything of value, gives or promises any office or employment, franchise, or grant, public or private, or makes or offers to make an expenditure, directly or indirectly, or cause an expenditure to be made on any person, association or corporation, entity or community in other to induce anyone or the public in general to vote for or against 72

any candidate or withhold his vote in the election, or to vote for or against any aspirant for the nomination or choice of a candidate in convention or similar selection process of a political party; and o

Any person, association, corporation, group or community who solicits or receives, directly or indirectly, any expenditure or promise of any office or employment, public or private, for any of the foregoing consideration.

2. Grant of Transactional Immunity o

Any person guilty of vote-buying and vote-selling who voluntarily gives information and willingly testifies on violations of Section 261 of the Omnibus Election Code, shall be exempt from prosecution and punishment for the offense with reference to which the information and testimony were given, without prejudice to his liability for perjury and false testimony.

3. Conspiracy to bribe voters. o

Committed by two or more persons, whether candidates or not

o

Who come to an agreement concerning the vote-buying and vote-selling; and

o

Decide to commit it.

4. Wagering upon result of elections. o

Committed by any person who bets or wagers upon the outcomes of, or any contingency connected with an election;

o

Money or thing of value or deposit of money or thing of value situated anywhere in the Philippine put as such bet or wager shall be forfeited to the government.

5. Coercion of subordinates to vote for or against any candidate. o

o

o

o

The COMELEC is vested with the authority to exempt those who have committed election offenses under Section 261 (a) and (b)but volunteer to give informations and testify on any violation of said law in any official investigation or proceeding with reference to which his information and testimony is given.

o

The immunity seeks a rational accommodation between the imperatives of the privilege against self-incrimination and the legitimate demands of government to encourage citizens, including law violators, to testify against law violators. The testimony of a voluntary witness operates as a pardon for the criminal charges to which it relates. The law gives him immunity from investigation and prosecution for any offense in Section 261 (a) and (b) with reference to which his information is given. The power to grant exemptions is vested solely on the COMELEC. It is generally not subject to judicial review, unless the COMELEC commits a grave abuse of discretion amounting to excess or lack of jurisdiction.


o

Committed by any public officer or any officer of any public or private corporation or association, or any head, superior, or administrator of any religious organization, or any employer or landowner; 

Who coerces or intimidates or compels, or in any manner influences, directly or indirectly,



Any of his subordinates or members or parishioners or employees or house helpers, tenants, overseers, farm helpers, tillers, or leaseholders;



To aid, campaign, or vote for or against any candidate or any aspirant for the nomination or selection of candidates.

Committed by any public officer or any officer of any commercial, industrial, agricultural, economic or social enterprise or public or private corporation of association, or any head, superior or administrator of any religious organization, or any employer or landowner;

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

Who threatens to dismiss by reducing the salary, wage or compensation, or by demotion, transfer, suspension, separation, excommunication, ejectment, or causing him annoyance in the performance of his job or in his membership;



Any subordinate member or affiliate, parishioners, employee or house helper, tenant, overseer, farm helper, tiller or leaseholder;



For disobeying or not complying with any of the acts ordered by the former to aid, campaign or vote for or against any candidate, or any aspirant for the nomination or selection of candidates.

o

Who, directly or indirectly, threatens, intimidates, terrorizes, or coerces,

o

Any election official or employee in the performance of his election functions or duties.

8. Appointment of new employees, creation of new positions, promotion, or giving salary increases within the election period. o

Committed during the period of 45 days before a regular election and 30 days before a special election;

o

Committed by any head, official or appointing officer of a government office, agency, instrumentality, whether national or local, including GOCC;

6. Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion. o

Committed by any person;

o

Who, directly or indirectly, intimidates or actually causes, inflicts or produces any violence, injury, punishment, damage, loss or disadvantage;

o

Upon any person or persons or that of the immediate members of his family, his honor or property, or uses any fraudulent device or scheme;

o

To compel or induce the registration or refraining from registration of any voter, or the participation in a campaign, or the casting of any vote or omission to vote, or any promise of such registration, campaign, vote, or omission therefrom.

If the election returns reflect the true results of the voting at the precinct level, any coercion and intimidation may give rise to legal, including criminal liability but will not justify the exclusion of the returns. 7. Coercion of election officials and employees. o



Who appoints or hires any new employee, whether provisional, temporary, or cause or creates and fills any position EXCEPT upon prior authority of the COMELEC.

The Commission shall not grant the authority sought unless 1. It is satisfied that the position to be filled is essential to the proper functioning of the office or agency concerned, and 2. The position shall not be filled in a manner that may influence the election. EXCEPTION: A new employee may be appointed in case of urgent need. In such case, notice of the appointment shall be given to the Commission within three days from the date of the appointment. Any appointment or hiring in violation of this provision shall be null and void. o

Committed by any government official;  Who promotes, or gives any increase of salary or remuneration or privilege to any government official or employee, including those in GOCC.

Committed by any person;


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9. Transfer of officers and employees in the civil service within the election period.

11. Use of undue influence. o

o

Committed by any public official

o

Who makes or causes any transfer or detail whatever of any officer or employee in the civil service including public school teachers

o

Within the election period EXCEPT prior approval of the COMELEC.

This provision does not per se outlaw the transfer of a government officer or employee during the election period. To be sure, the transfer or detail of a public officer or employee is a prerogative of the appointing authority. Without this inherent prerogative, the appointing authority may not be able to cope with the emergencies to the detriment of public service. Clearly then, the transfer or detail of a government officer or employee will not be penalized if done to promote efficiency in the government service. Hence, the COMELEC has to pass upon the reason for the proposed transfer or detail. Two elements must be established to prove violation of the law: a. The fact of transfer or detail within the election period as fixed by the COMELEC; and b. Such transfer or detail was effected without prior approval of the COMELEC in accordance with its implementing rules and regulations. 10. Intervention of public officers and employees in the civil service in any partisan political activity. o

o

Committed by any officer or employee in the civil service, any officer, employee, or member of the Armed Forces of the Philippines, or any police force, special forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized, EXCEPT those holding political offices; Who directly or indirectly, intervenes in any election campaign or engages in any partisan political activity EXCEPT to vote or to preserve public order if he is a peace officer.


o

It is unlawful for any person 

To promise any office or employment, public or private, or offer to make an expenditure, directly or indirectly, or to cause an expenditure to be made to any person, association or corporation or entity, which may induce anyone or the public in general, either



To vote or withhold his vote, or to vote for or against any candidate in an election or any aspirant for the nomination or selection of an official candidate in a convention of a political party.

It is unlawful for any person, association, corporation or community 

To solicit or receive, directly or indirectly any expenditure or promise any of the foregoing considerations.

12. Unlawful electioneering. o

It is unlawful to solicit votes or undertake any propaganda

o

On the day of the registration before the board of election inspectors and on the day of the election;

o

For or against any candidate or any political party within the polling place and within a radius of 30 meters thereof.

13. Dismissal of employees, laborers or tenants for refusing or failing to vote for any candidate. o

No employee or laborer shall be dismissed, nor a tenant be ejected from his land holdings for refusing or failing to vote for any candidate of his employer or landowner.

o

Any employee, laborer or tenant so dismissed or ejected shall be reinstated and the salary or wage of the employee or laborer, or the share of the harvest of the tenant, shall be 75

restored to the aggrieved party upon application to the proper court. 14. Appointment or use of special policemen, special agents or the like during the campaign period. o

Committed during the campaign period, on the day before and on the election day;

o

Committed by any appointing authority who appoints or any person who utilizes the services of special policemen, special agents, confidential agents or persons performing similar functions; persons previously appointed as special policemen, special agents, confidential agents or persons performing similar functions who continue acting as such, and those who fail to turn over their firearms, uniforms, insignias and other badges of authority to the proper officer who issued the same.

At the start of the aforementioned period, the barangay captain, municipal mayor, city mayor, provincial governor or any appointing authority shall submit to the COMELEC a complete list of all special policemen, special agents or persons performing similar functions in the employ of their respective political subdivisions, with such particulars as the Commission may require.

16. Use of public funds for an election campaign. It is committed by any person who uses, under any guise whatsoever, directly or indirectly: o

Public funds or money deposited with, or held in trust by public financing institutions or by government offices, banks or agencies;

o

Any printing press, radio, television station or audiovisual equipment operated by the Government or by its subdivisions, agencies or instrumentalities, including GOCC, or by the AFP; or

o

Any equipment, vehicle, facility, apparatus, or paraphernalia owned by the government or by its political subdivisions, agencies, including GOCC, or by the AFP for any election campaign or for any partisan political activity.

17. Carrying deadly weapons within the prohibited area. o

Committed by any person

o

Who carries any deadly weapon in the polling place and within the radius of 100 meters thereof during the days and hours fixed by law for the registration of voters in the polling place, voting, counting of votes, or preparation of election returns.

o

However, in cases of affray, turmoil or disorder, any peace officer or public officer authorized by the COMELEC to supervise the election is entitled to carry firearms or any of other weapon for the purpose of preserving order and enforcing the law.

o

To support conviction, it is not necessary that the deadly weapon should have been seized from the accused while he was in the precinct or within a radius of 100 meters therefrom. It is enough that the accused carried the deadly weapon ―in the polling place and within a radius of 100 meters thereof.‖

15. Illegal release or prisoners before and after election. o

o

Committed by the Director of the Bureau of Corrections, any provincial warden, the keeper of the jail or the person or persons required by law to keep prisoners in their custody Who illegally orders or allows any prisoner detained in the national penitentiary, or the provincial, city or municipal jail to leave the premises thereof 60 days before and 30 days after the election.

The municipal or city warden, the provincial warden, the keeper of the jail or the person or persons required by law to keep prisoners in their custody shall post in three conspicuous public places a list of the prisoners or detention prisoners under their case. Detention prisoners must be categorized as such.


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18. Carrying firearms outside the residence or place of business. o

Committed by any person who, although possessing permits to carry firearms;

o

Carries any firearms outside his residence or place of business during the election period

o

UNLESS authorized in writing by the COMELEC.

o

A motor vehicle, water or aircraft shall not be considered a residence or place of business or extension hereof.

o

This prohibition SHALL NOT APPLY to cashiers and disbursing officers while in the performance of their duties or to persons, who by nature of their official duties, profession, business or occupation habitually carry large sums of money or valuables.

20. Wearing of uniforms and bearing arms outside the immediate vicinity of one’s place of work. o

It is committed by any member or security or police organization of government agencies, commissions, councils, bureaus, offices of GOCC, or privately owned or operated security, investigative, protective, or intelligence agencies 

Who wears his uniform or uses his insignia, decorations or regalia, or bears arms outside the immediate vicinity of his place or work.



During the campaign period, on the day before and on election day;



The prohibition shall not apply when said member is in pursuit of a person who has committed or is committing a crime in the premises he is guarding; or when escorting or providing security for the transport of payrolls, deposits, or other valuables; or when guarding the residence of private persons or when guarding private residences, building, or offices. (Prior written approval of the COMELEC shall be obtained. The Commission shall decide all applications for authority within 15 days from the date of the filing of such application.)

19. Use of armored land vehicle, water or aircraft during the campaign period. o

Committed by any person

o

During the campaign period, on the day before and on election day

o

Uses any armored land, water, or aircraft;

o

Provided with any temporary or permanent equipment or any other device or contraption for the mounting or installation of canons, machine guns and other similar high caliber firearms, including military – type tanks, half trucks, scout trucks, armored trucks, of any make or model, whether new, reconditioned, rebuilt or remodeled.

o

Banking or financial institutions and all business firms may use not more than 2 armored vehicles strictly for, and limited to, the purpose of transporting cash, gold bullion, or other valuables in connection with their business from and to their place of business, upon previous authority of the COMELEC.


Committed by any member of the AFP, special forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized 

Who wears his uniform or bears arms outside the camp, garrison or barracks to which he is assigned or detailed or outside their homes, in case of para-military units, UNLESS: 1. The President of the Philippines shall have given previous authority therefore; and 2. The COMELEC authorizes him to do so, which authority it shall give only when necessary to assist in maintaining free, orderly and honest elections, and only after due notice and hearing. 77



During the same period, and ending 30 days thereafter.

During the election period, whenever the Commission finds it necessary for the promotion of free, orderly, honest and peaceful elections in a specific area, it shall confiscate or order the confiscation if firearms of any member or member of the AFP, police forces, home defense forces, barangay self-defense units, and all other para-military units that, now exist, or which may hereafter be organized, or any member or members of the security or police organization of government departments, commissions, councils, bureaus, offices, instrumentalities, or GOCC and other subsidiaries, or of any member or members of privately owned or operated security, investigative, protective or intelligence agencies performing identical or similar functions. 21. Acting as bodyguards or security in the case of policemen and provincial guards during the campaign period. o

During the campaign period, on the day before and on election day;

o

It is committed by any member of the PNP, the AFP, special forces, home defense forces, barangay self-defense units, and any other para-military units that now exist or which hereafter be organized

o

Who acts as bodyguard or security guard of any public official, candidate or any other person, any of the latter who utilizes the services of the former as bodyguard or security guard.

o

After due notice and hearing, when the life and security of a candidate is in jeopardy, the COMELEC is empowered to assign at the candidate‘s choice, any member of the PNP to act as his bodyguard or security guard in a number to be determined by the Commission but not to exceed three per candidate.

o

When the circumstances require immediate action, the Commission may issue a temporary order allowing the assignment of any member of the PNP to act as bodyguard or security guard of the candidate subject to confirmation or revocation.


22. Organization or maintenance of reaction forces, strike forces, or other similar forces during the election period. o

Committed by any person who organizes or maintains a reaction force, strike force or similar forces during the election period;

o

The heads of all reaction forces, strike forces, or similar forces shall, not later 45 days before the election. Submit to the COMELEC a complete list of all members thereof with such particulars as the Commission may require.

23. Release, disbursement, or expenditure of public funds during the prohibition period. o

Committed by any public official or employee including barangay officials and those of GOCC and their subsidiaries;

o

During 45 days before a regular election and 30 days before a special election, releases, disburses or expends any public funds for any and all kinds of public works, EXCEPT: 

Maintenance of existing and/or completed public works project. However, not more than the average number of laborers or employees already employed therein during the six-month period immediately prior to the beginning of the 45-day period before election day shall be permitted to work during such time. No additional laborers shall be employed for maintenance work within the said period of 45 days.



Work undertaken by contract through public bidding held, or by negotiated contract awarded, before the 45-day period before election. Work undertaken under the so-called ―takay‖ or ―paquiao‖ system shall not be considered as work by contract.



Payment for the usual cost of preparation for working drawings, specification, bills of materials, estimates, and other procedures preparatory to actual construction including the purchase of materials and equipment, and all incidental 78

expenses of wages of watchmen and other laborers employed for such work in the central office and filed storehouses before the beginning of such period. The number of such laborers shall not be increased over the number hired when the project or projects were commenced; and 

26. Others. o

Selling, etc, intoxicating liquors – any person who sells, furnishes, offers, buys, serves or takes intoxicating liquors on the days fixed by law for the registration of voters in the polling place or the day before the election or on election day. Hotels and other establishments duly certified by the Department of Tourism as tourist oriented and habitually in the business of catering to foreign tourists may be exempted for justifiable reasons upon prior authority of the COMELEC. Foreign tourists taking intoxicating liquor in said authorized hotels or establishments are exempted;

o

Opening booths or stalls – any person who opens in any polling place or within the radius of 30 meters thereof on election day, and during the counting of votes, booths or stalls of any kind for sale, dispensing or display of wares, merchandise or refreshments, whether solid or liquid, or for any other purposes;

o

Holding fairs, cockfights, etc. – Any person who holds on election day, fairs, cockfights, boxing, horse races, jai-alai or any other similar sports;

o

Refusal to carry election mail – any operator or employee of a public utility or transportation company operating under a certificate of public convenience, including GOCC postal service or its employees or deputized agents who refuse to carry official election mail matters free of charge during the election period. In addition to the penalty prescribed, such refusal shall Constitute a ground for cancellation or revocation of certificate of public convenience or franchise; and

o

Discrimination in the sale of airtime – any person who operates a radio or television station who, without justifiable cause, discriminates against any political party, coalition or aggroupment of parties or any candidate in the sale of air time. In addition to the penalty prescribed, such refusal shall Constitute a ground fro cancellation or revocation of the franchise.

Emergency work necessitated by the occurrence of a public calamity, but such work shall be limited to the restoration of the damaged facility.

No payment shall be made within five days before the date of election to laborers who have rendered services in projects or works except those falling under above. This prohibition shall not apply to ongoing public works projects commenced before the campaign period or similar projects under foreign agreements. It shall be the duty of the government officials or agencies concerned to report to the COMELEC the list of all such projects being undertaken by them. 24. Construction of public works, etc. during the prohibition period. During the period of 45 days preceding a regular election and 30 days before a special election, it is committed by any person who: o

Undertakes the construction of any public works, except for projects or works exempted; or

o

Issues, uses or avails of treasury warrants or any device, undertaking future delivery of money, goods or other things of value chargeable against public funds.

25. Suspension of elective local official during the election period without prior approval of the COMELEC. The provisions of law to the contrary notwithstanding during election period, it is committed by any public official who suspends, without prior approval of the COMELEC, any elective, provincial, city, municipal or barangay officer, unless said suspension will be for purposes of applying the ―Anti-Graft and Corrupt Practices Act‖ in relation to the suspension and removal of elective officials.


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Prohibitions relating to registration of voters: a. Any person who: i. Having all the qualifications and none of the disqualifications of a voter who fails without justifiable excuse to register as voter in an election, plebiscite or referendum in which he is qualified to vote; ii. Knowingly makes any false or untruthful statement relative to any of the data or information required in the application for registration; iii. Deliberately imprints or who causes the imprinting of blurred or indistinct fingerprints on any of the copies of the application for registration or on the voter‘s affidavit; or any person in charge of the registration of voters who deliberately or through negligence, causes or allows the imprinting of blurred or indistinct fingerprints on any of the aforementioned registration forms, or any person who tampers with the fingerprints of said registration records; iv. Being a registered voter, registers anew without filing an application for cancellation of his previous registration; v. Registers in substitution for another, whether with or without the latter‘s knowledge or consent; vi. Tampers with or changes without authority any data or entry in any voter‘s application for registration; vii. Delays. Hinders or obstructs another from registering; viii. Falsely certifies or identifies another as a bona fide resident of a particular place or locality for the purpose of securing the latter‘s registration as a voter; ix. Uses the voter‘s affidavit of another for the purpose of voting, whether or not he actually succeeds in voting; x. Places, inserts or otherwise includes as approved application for registration in the book of voters or in the provincial or national central files of registered voters, the application of any fictitious voter or any application that has not been approved; or removes from, or otherwise takes out of the book of voters or the provincial or national central files of registered voters any duly approved voter‘s application EXCEPT upon unlawful order of the COMELEC, or of a competent court or after proper cancellation; xi. Transfers or causes the transfer of the registration record of a voter to the book of voters of another polling place, unless said transfer was due to a change of address of the voter and the voter was duly notified of his new polling place;


xii. Asks, demands, takes accepts or possesses, directly or indirectly, the voter‘s affidavit of another, in order to induce the latter to withhold his vote, or to vote fro or against any candidate in an election or any issue in a plebiscite or referendum. It shall be presumed prima facie that the asking, demanding, taking, accepting or possessing is with such intent if done within the period beginning 10 days before the election day and ending 10 days after the election day, UNLESS the voter‘s affidavit of another and the latter are both members of the same family. xiii. Delivers, hands over, entrusts, gives, directly or indirectly, his voter‘s affidavit to another in consideration of money or other benefit or promises thereof, or takes or accepts such voter‘s affidavit, directly or indirectly, by giving or causing the giving of money or other benefit or making or causing the making of a promise thereof; xiv. Alters in any manner, tears, defaces, removes or destroys any certified list of voters; xv. Takes, carries or possesses any blank or unused registration form already issued to a city or municipality outside of said city or municipality EXCEPT as otherwise provided in the Omnibus Election Code or when directed by express order of the court or of the COMELEC; and xvi. Maliciously omits, tampers or transfer to another list the name of a registered voter from the official list of voters posted outside the polling place. b. Any member of the Board of Election Inspectors who approves any application which on its face shows that the applicant does not possess all the qualifications prescribed by law for a voter; or who disapproves any application which on its face shows that the applicant possesses all such qualifications. Prohibitions relating to voting: a. Any person who: i. Fails to cast his vote without justifiable excuse; ii. Votes more than once in the same election, or who, not being a registered voter, votes in an election; iii. Votes in substitution for another, whether with or without the latter‘s knowledge and consent; iv. Not being illiterate or physically disabled, allows his ballot to be prepared by another, or any person who prepares the ballot of

80

v.

vi.

vii.

viii.

ix.

x. xi. xii.

xiii.

xiv.

another who is not illiterate or physically disabled, with or without the latter‘s knowledge or consent; Avails himself of any means of scheme to discover the contents of the ballot of a voter who is preparing or casting his vote or who has just voted; Places under arrest or detains a voter without lawful cause, or molests him in such a manner as to obstruct or prevent him from going to the polling place to cast his vote or from returning home after casting his vote, or to compel him to reveal how he voted; For the purpose of disrupting or obstructing the election process or causing confusion among the voters, propagates false and alarming reports or information or transmits or circulates false orders, directives or messages regarding any matter relating to the printing of official ballots, the postponement of the election, the transfer of polling place, or the general conduct of the election; Without legal authority, destroys or substitutes or take away from the possession of those having legal custody thereof, or from the place where they are legally deposited, any election form or document or ballot box which contains official ballots or other documents used in the election; Having legal custody of the ballot box containing the official ballots used in the election who opens or destroys said box or removes or destroys its contents without or against the order of the COMELEC or who, through his negligence, enables any person to commit any of the acts, or take away said ballot box from his custody; Reveals the contents of the ballot of illiterate or disabled voter whim he assisted in preparing a ballot; Without authority, transfers the location of a polling place; Without authority, prints or causes the printing of any ballot or election returns that appears as official ballots or election returns or who distributes or causes the same to be distributed for use in the election, whether or not they are actually used; Without authority, keeps, uses or carries out or causes to be kept, used, or carried out any official ballot or election returns or printed proof thereof, type from mould, electrotype printing plates and any other plate, numbering machines and other printing paraphernalia being used in connection with the printing of official ballots or election returns; Through any act, means pr device, violates the integrity of any official ballot or election returns before or after they are used in the election;


xv. Removes, tears, defaces, or destroys any certified list of candidates posted inside the voting booths during the hours of voting; xvi. Holds or causes the holding of an election on any other day than that fixed by law or by the Commission, or stops any election being legally held; and xvii. Deliberately blurs his fingerprint in the voting record. b. Any member of the board of election inspectors: i. Charged with the duty of reading the ballot during the counting of votes whole deliberately omits to read the vote duly written on the ballot or misreads the vote actually written thereon or reads the name of a candidate where no name is written on the ballot; ii. Charged with the duty of tallying the votes in the tally board or sheet, election returns or other prescribed form who deliberately fails to record a vote therein or records erroneously the votes as read, or records a vote where no such vote has been read by the chairman. iii. Who has made possible the casting of more votes than there are registered voters‘ iv. Who knowingly uses ballots other than the official ballots EXCEPT in those cases where the use of emergency ballots is authorized. c.

Any voter who, in the course of voting, uses a ballot other than the one given by the Board of Election Inspectors or has in his possession more than one official ballot;

d. Any public official who neglects or fails to properly preserve or account for any ballot box, documents, and other forms received by him and kept under his custody. e. Any official or employee of any printing establishment or the Commission or any member of the committee in charge of the printing of official ballots or election returns who causes official ballots or elections returns to be printed in quantities exceeding those authorized by the Commission or who distributes, delivers, or in any manner disposes of or causes to be distributed, delivered, or disposed of, any official ballot or election returns to any person or persons not authorized by law or by the Commission to receive or keep official ballots or election returns or who sends or causes them to be sent to any place not designated by law or by the Commission.

81

Prohibitions relating to canvassing: a. Any chairman of the Board of Canvassers who fails to give due notice of the date, time and place of the meeting of said board to the candidates, political parties and/or members of the board; b. Any member of the Board of Canvassers who i. Proceeds with the canvass of votes and/or proclamation of any candidate which was suspended or annulled by the COMELEC; ii. Proceeds with the canvass of votes and/or proclamation of any candidate in the absence of quorum, or without giving due notice of the date, time, and place of the meeting of the board of candidates, political parties, and/or other members of the board; and iii. Without authority of the Commission, uses in the canvass of votes and/or proclamation of any candidate any document other than the official copy of the election returns. Prohibitions common to all boards of election inspectors or boards of canvassers: a. Any member of any board of election inspectors, or board of canvassers who: i. Deliberately absents himself from the meeting of said body for the purpose of obstructing or delaying the performance of its duties and functions; ii. Without justifiable reason, refuses to sign and certify any election form required by the Omnibus Election Code or prescribed by the COMELEC although he was present during the meeting of the said body; b. Any person who: i. Being ineligible for appointment as member of any Board of Election Inspectors or Board of Canvassers accepts an appointment to said body, assumes office, and actually serves as a member thereof, or any public officer or any person acting in his behalf who appoints such ineligible person knowing him to be ineligible; ii. In the presence or within the hearing of any Board of Election Inspectors or Board of Canvassers during any of its meetings, conducts himself in such a disorderly manner as to interrupt or Election Law Reviewer (2012)

disrupt the work or proceedings to the end of preventing said body from performing its functions, either partly or totally. c.

Any public official or person acting in his behalf who relieves any member of any Board of Election Inspectors or Board of Canvassers or who changes or causes the change of the assignments or any member of said Board of Election Inspectors or Board of Canvassers without authority of the Commission.

Prohibitions relating to candidacy and campaign: a. Any political party which holds political conventions or meetings to nominate its official candidates earlier than the period fixed in the Omnibus Election Code; b. Any person who: i. Abstracts, destroys or cancels any certificate of candidacy duly filed and which has not been cancelled upon order of the COMELEC; ii. Misleads the Board of Election Inspectors by submitting any false or spurious certificate of candidacy or document to the prejudice of a candidate; iii. Being authorized to receive certificates of candidacy, receives any certificate of candidacy outside the period for filing the same and makes it appear that said certificate of candidacy was filed on time; or any person who, by means of fraud, threat, intimidation terrorism or coercion, causes or compels the commission of said act; iv. By any device or means, jams, obstructs or interferes with a radio or television broadcast of any lawful political program; and v. Solicits votes or undertakes any propaganda, on the day of election, for or against any candidate or political party within the polling place or within the radius of 30 meters thereof. Persons criminally liable: 1. The principals, accomplices and accessories as defined by the RPC shall be criminally liable for election offenses; 2. If one responsible be a political party or an entity, its president or head, the officials and employees of the same, performing duties connected with the offense committed and its member who may be

82

principals, accomplices, and accessories shall be liable, in addition to the liability of such party or entity. Penalties 1. Imprisonment of not less than one year but not more than 6 years and shall not be subject to probation. In addition, the guilty party shall be sentenced to suffer disqualification to hold public office and deprivation of the right to suffrage. If he is a foreigner, he shall be sentenced to deportation which shall be enforced after the prison term has expired. Any political party found guilty shall be sentenced to pay a fine not less than P10,000, which shall be imposed upon such party after criminal action has been instituted in which corresponding officials have been found guilty.

temporary special disqualification which lasts during the term of the sentence. 3. The perpetual temporary special disqualification for the exercise of the right of suffrage shall deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any popular election for any public office or to be elected to such office. 4. A plenary pardon, granted after election but before the date fixed by law for assuming office, has the effect of removing the disqualification prescribed by both the criminal and electoral laws. Other election offenses under the Electoral Reforms Law of 1987 1. Any person who

2. In case of prisoner or prisoners illegally released from any penitentiary or jail during the prohibited period, the Director of the Bureau of Corrections, provincial warder, keeper of the jail or prison, or persons who are required by law to keep said prisoner in their custody shall, if convicted by a competent court, be sentenced to suffer the penalty of prision mayor in its maximum period of the prisoner or prisoners so illegally released commit any act of intimidation, terrorism or interference in the election. 3. Any person found guilty of the offense or failure to register or failure to vote shall, upon conviction, be fined P100. in addition, he shall suffer disqualification to run for public office in the next succeeding election following his conviction or be appointed to a public office for a period of one year following his conviction.

a. Causes the printing of official ballots and election returns by any printing establishment which is not under contract with COMELEC and any printing establishment which undertakes such unauthorized printing; b. Declared as a nuisance candidate or is otherwise disqualified by final and executory judgment, who continues to misrepresent himself, or holds himself out, as a candidate, such as by continuing to campaign thereafter, and/or other public officer or private individual, who knowingly induces or abets such misrepresentation by commission or omission shall be guilty of an election offense and subject to the penalty provided in the Omnibus Election Code; c.

CASE: Pimentel, Jr. v COMELEC

Conviction and pardon as affecting eligibility: 1. The necessary penalty of temporary absolute disqualification disqualifies the convict from public office and from the right to vote, such disqualification to last only during the term of the sentence; 2. The accessory penalty of perpetual special disqualification for exercise of suffrage deprives the convict of the right to vote or to be elected or hold public office perpetually, as distinguished from Election Law Reviewer (2012)

Violates the provision regarding the prohibited forms of election propaganda.

2. Any member of the Board of Election Inspectors or Board of Election Canvassers who: a. Tampers, increases, or decreases the votes received by a candidate in any election or any member of the board, who refuses, after proper verification and hearing, to credit the correct votes or deduct such tampered votes; b. Refuses to issue duly accredited watchers and certificate of votes after the counting of the votes cast and announcement of results of the election. 83

3. Any chairman of Board of Canvassers who fails to give notice of meeting to other members of the board, candidate or political party as required. Other election offenses under the Synchronized National and Local Elections Law Any violation of Section 28, RA 7166 or its pertinent portion, shall constitute an election offense and shall be penalized in accordance with BP 881. 1. Any person who: a. Removes the election return posted on the wall, whether within or after the prescribed 48 hours of posting, or defaces the same in any manner b. Simulates an actual certificate of canvass or statement of votes, or a print or digital copy thereof c. Simulates the certification of a certificate of canvass or statement of votes 2. The chairman or any member of the board of election inspectors who, during the prescribed period of posting, removes the certificate of canvass or its supporting statement of votes from the wall on which It had been posted other than for the purpose of immediately transferring it to a more suitable place 3. The chairman or any member of the board of canvassers who signs or authenticates a. A print of the certificate of canvass or its supporting statement of votes outside of the polling place b. A print which bears an image different from the certificate of canvass or statement of votes produced after counting and posting on the wall Other election offenses under the Voter’s Registration Act of 1996 1. To deliver, hand over, entrust or give, directly or indirectly, his voter‘s identification card to another in consideration of money or other benefit or promise; or take or accept such voter‘s identification card, directly or indirectly, by giving or causing the giving of money or other benefit or making or causing the making of a promise therefore; 2. To fail, without cause, to post or to give any of the notices or to make any of the reports required under the Act; Election Law Reviewer (2012)

3. To issue or cause the issuance of a voter‘s identification number or to cancel or cause the cancellation thereof in violation of the provisions of the Act; or to refuse the issuance to registered voters their voter‘s identification card; 4. To accept an appointment, to assume office and to actually serve as a member of the Election Registration Board although ineligible thereto; or to appoint such ineligible person knowing him to be ineligible; 5. To interfere with, impede, abscond for purposes of gain or to prevent the installation or use of computers and devices and the processing, storage, generation and transmission of registration data or information; 6. To gain, cause access to use, alter, destroy, or disclose any computer data, program, system software, network, or any computer related devices, facilities, hardware or equipment, whether classified or declassified; 7. Failure to provide certified voters and deactivated voters list to candidates and heads of representatives of political parties upon written request; 8. Failure to include the approved application for registration of a qualified voter in the book of votes of a particular precinct or the omission of the name of a duly registered voter in the certified list of voters of the precinct where he is duly registered resulting in his failure to cast his vote during an election, plebiscite, referendum, initiative and/or recall. The presence of the form or name in the book of voters or certified list of voters in precincts other than where he is duly registered shall not be an excuse. 9. The posting of a list of voters outside or at the door of a precinct on the day of an election, plebiscite, referendum, initiative and/or recall, and which list is different in content from the certified list of voters being used by the Board of Election Inspectors; and 10. Violation of any of the provisions of the Act. Penalty: Imprisonment of not less than one year but not more than six months and shall not be subject to probation. In addition, the guilty party shall be sentenced to suffer the disqualification to hold public office and deprivation of the right of suffrage. If he is a foreigner, he shall be deported after the prison term has been served. Any political party found guilty shall be sentenced to pay a fine of not less than P100,000 but not more than P500,000.

84

Other election offenses under the Automated Election System Act The following shall be penalized as election offenses, whether or not said acts affect the electoral process or results 1. Utilizing without authorization, tampering with, destroying or stealing: a. Official ballots, election returns, and certificates of canvass of votes used in the system b. Electronic devices or their components, peripherals or supplies used in the system such as counting machine, memory pack / diskette, memory pack receiver and computer set 2. Interfering with, impeding, absconding for the purpose of gain, preventing the installation or use of computer counting devices and the processing, storage, generation and transmission of election results, data or information 3. Gaining or causing access to using, altering, destroying or disclosing any computer data, program, system software, network, or any computer-related devices, facilities, hardware or equipment, whether classified or declassified 4. Refusal of the citizens‘ arm to present for perusal its copy of election return to the board of canvassers 5. Presentation by the citizens; arm of tampered or spurious election returns 6. Refusal or failure to provide the dominant majority and dominant minority parties or the citizens‘ arm their copy of election returns 7. Failure to post the voters‘ list within the specified time, duration and in the designated location shall constitute an election offense on the part of the election officer concerned. Penalty: imprisonment of 8 years and 1 day to 12 years without possibility of parole, and perpetual disqualification to hold public office and deprivation of the right of suffrage. The offender shall be perpetually disqualified to hold any non-elective public office. Other election offenses under the Absentee Voting Act of 2003 1. Any officer or employee of the Philippine government who influences or attempts to influence any person covered by the Act to vote, or not to vote, for a particular candidate. Nothing in the Act shall be deemed to prohibit free discussion regarding politics or candidates for public office 2. Any person who a. Deprives any person of any right secured in the Act, or to give false information as to his/her name, address, or period Election Law Reviewer (2012)

of residence for the purposes of establishing his eligibility or ineligibility to register or vote under the Act; or conspires with another person for the purpose of encouraging the giving of false information in order to establish the eligibility or ineligibility of any individual to register or vote under the Act; or pays, or offers to pay, or accepts payment either for application to vote in absentia or for voting b. Tampers with the ballot, the mail containing the ballots for overseas absentee voters, the election returns, including the destruction, mutilation and manipulation thereof c. Steals, destroys, conceals, mutilates or alters any record, document or paper as required for purposes of this Act d. After being deputized by the COMELEC to undertake activities in connection with the implementation of the Act, campaigns for or assists, in whatever manner, candidates in the elections e. Not being a citizen of the Philippines, participates, by word or deed, directly or indirectly, through qualified organizations/associations, in any manner and at any stage of the Philippine political process abroad, including participation in the campaign and elections 3. Any deputized agent who refuses without justifiable ground, to serve or continue serving, or to comply with his sworn duties after acceptance of his appointment 4. Any public officer who a. Shall cause the preparation, printing, distribution of information material, or post the same in websites without the prior approval of the commission b. Causes the transfer, promotion, extension, recall of any member of the foreign service corps, including members of the attached agencies, or otherwise cause the movement of any such member from his current post or position 1 year before and 3 months after the day of the elections, without securing the prior approval of the Commission These prohibited acts are electoral offenses and punishable in the Philippines. The penalties imposed under Section 264 of the Omnibus Election Code as amended, shall be imposed on any person found guilty of committing any of the prohibited acts as defined above. The penalty of prision mayor in its minimum period shall be imposed upon any person found guilty under 2(b) without the benefit of the operation of the Indeterminate Sentence Law. If the offender is a public officer or a candidate, the penalty shall be prision mayor in its maximum period. In addition, the offender shall be sentenced to suffer 85

perpetual disqualification to hold public office and deprivation of the right to vote. Immigrants and permanent residents who do not resume residence in the Philippines as stipulated in their affidavit within 3 years after approval of his registration under the Act and yet vote in the next elections contrary to the said section, shall be penalized by imprisonment of not less than 1 year and shall be deemed disqualified. His passport shall be stamped ―not allowed to vote.‖

Prescription 

After five years from the date of their commission.



If the discovery of the offense be made in an election contest proceedings, the period of prescription shall commence on the date on which the judgment in such proceedings becomes final and executory.

Jurisdiction of courts Investigation and prosecution: 1. The COMELEC shall, through its duly authorized legal officers, have the power concurrent with the other prosecuting arms of the government to conduct preliminary investigation of all election offenses punishable under the Omnibus Election Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government. 2. In the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the DOJ for proper investigation and prosecution, if warranted. 3. The Constitutional and statutory mandate for the COMELEC to investigate and prosecute cases of violation of election laws translates, in effect, to the exclusive power to conduct preliminary investigations in cases involving election offenses for the twin purpose of filing an information in court and helping the Judge determine, in the course of preliminary inquiry, whether or not a warrant of arrest should be issued.



RTC – exclusive original jurisdiction to try and decide any criminal action or proceedings for the violation of the Omnibus Election Code,



MTC - those relating to the offense of failure to register or failure to vote.



For the decision of the courts, appeal will lie as in other criminal cases.

Preferential disposition of election offenses 

The investigation and prosecution of cases involving violations of the election laws shall be given preferences and priority by the COMELEC and prosecuting officials. Their investigation shall be commenced without delay, and shall be resolved by the investigating officer within five days from its submission for resolution.



The courts shall likewise give preference to election offenses over all other cases EXCEPT petitions for writ of habeas corpus.

Arrest in connection with the election campaign 1. A person may be arrested only upon a warrant of arrest issued by a competent judge after all the requirements of the Constitution shall have been strictly complied with. 2. If the offense charged is punishable under a presidential decree, whether originally or by amendment of a previous law, the death penalty shall not be imposed upon the offender EXCEPT where the murder, rape, or arson is involved. In all cases, the penalty shall not be higher than reclusion perpetua and the offender shall be entitled to reasonable bail upon sufficient sureties to be granted speedily by the competent court.


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Election Law

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