ELECTION LAW
SUFFRAGE
The right to vote in the election of officers chosen by the people and in the determination of questions submitted to the people. Includes within its scope, election, plebiscite, initiative and referendum referendum.. A Right and and A Privilege Privilege
A right right because because it is the expression of the sovereign will of the people. A privilege privilege because because its exercise exercise is granted granted not to everybody but to to such persons persons or class of persons as are most likely to exercise it for the purpose of the public good.
Theories on Suffrage 1. Natural Right Theor! Suffrage Theor! Suffrage is a natural and inherent right of every citien who is not disqualified by reason of his own reprehensible conduct or unfitness. ". So#ial E$pedien#! Suffrage E$pedien#! Suffrage is a public office or function conferred conferred upon citiens who are fit and capable capable of discharging discharging it. %. Tri&al Theor! It Theor! It is a necessary attribute of membership in the State. '. (eudal Theor! It Theor! It is an ad!unct of a particular status, generally tenurial in character. A vested privilege privilege usually accompanying accompanying ownership ownership of land. ). Ethi#al Theor! It Theor! It is a necessary and essential means for the development of society. Ele#tion* the means by which the people choose their officials for a definite and fixed period and to whom they entrust for the time being the exercise of the powers of government. +IN,S! a. Regular - one provided by law for the elections of officers either nationwide nationwide or in certain subdivisions thereof, thereof, after the expiration of the full term of the former officers. b. Special - one held to fill a vacancy in office before the expiration of the full term for which the incumbent incumbent was elected. elected. PLE-ISCITE is an ele#toral pro#ess & /hi#h an initiative on the #onstitution is approved or re0e#ted & the people. INITIATIE is the power of the people to propose amendments to the constitution or to propose and enact legislation through an election called" for the purpose. RE(EREN,23 is the power of the electorate to approve or re!ect legislation through an election called for the purpose.
ELECTION PERIO, Shall commence #" days before the day of the election and shall end $" days thereafter. The campaign period does not include the day before and the day of the election.
The campaign period in special election is %& days.
4OW ELECTIONS LAWS ARE CONSTR2E, 1. Condu#t of Ele#tion Offi#ials. 'efore elections( mandatory After elections( elections( directory ". Condu#t of Candidates. 'efore, after and during elections( mandatory %. On Ele#tion ,isputes. Are construed construed liberally so so as not to defeat the the will of the electorate. electorate.
VOTERS
I. 52ALI(ICATIONS (OR S2((RA6E Citi7enship! )itien of the *hilippines, not otherwise disqualified by law. Age! Age! At At least + years of age Residen#e +. -e she should have resided in the the *hilippines *hilippines for one year and /. 0esided in the citymunicipa citymunicipality lity wherein he proposes to vote for at least 1 months immediately preceding the election.
Registered! 2ust be a duly registered voter and whose name appears in the list of voters 3o literacy, property or other substantive requirements shall be imposed on the exercise of suffrage. Transfer of residence due to work or occupation, profession or employment in private or public service, education, etc., shall not be deemed to have lost his original residence (B.P. 881, Sec.117). 5! 8 filed a petition for the #an#ellation of the #ertifi#ate of #andida# 9COC: of ;. Essentiall< 8 sought the dis=ualifi#ation of ; for 3aor of > ?uni#ipalit alleging that ; /as not a registered voter in that ?uni#ipalit sin#e he failed to sign his appli#ation for registration< and that the unsigned appli#ation for registration has no legal effe#t. ; #ountered that his failure to sign his appli#ation did not affe#t the validit of his registration sin#e he possesses the =ualifi#ations of a voter set forth in the O?ni&us Ele#tion Code as a?ended & Se#tion @ of R.A. 1@. 8 insists that the signature in the appli#ation for registration is indispensa&le for its validit as it is an authenti#ation and affir?ation of the data appearing therein. Should ; &e dis=ualifiedB
A! 4es. 0.A. +# 5The 6oter7s A! 4es. 6oter7s 0egistration 0egistration Act8 specifically specifically provides provides that an application for registration shall contain specimen signatures of the applicant as well as hisher thumbprints, thumbprints, among others. The evidence shows that 9 failed to sign very importantt parts of the application, which refer to the oath which 9 should have taken to importan validate and swear swear to the veracity veracity of the contents contents appearing in the the said application. application. :rom the foregoing, the irregularities surrounding 97s application proclaims that he did not comply with the minimum requirements of 0.A. +#. Thus, not having demonstrated that he duly accomplished an application for registration, 9 is not a registered voter. -ence, he must be disqualified to run for 2ayor. (Gunsi, Sr. v. COMELEC, G.R. No. 16879, !e". #, $$9). A-SENTEE OTIN6 OTIN6 is a process by which qualified citiens of the *hilippines abroad exercise their right to vote pursuant to the constitutional mandate that )ongress shall provide a system for absentee voting by qualified :ilipinos abroad 5 Sec. , %r&. ', 1987 Cons&i&u&io Cons&i&u&ion). n). A-SENTEE OTIN6 OTIN6 9E;CEPTION 9E;CEPTION TO RESI,ENC RESI,ENC8 8 RE52IRE3ENT:! RE52IRE3ENT:! It is in pursuance of that intention that the )ommission provided for Section / immediately after the residency requirement requirement of Section +. 'y the doctrine of necessary necessary implication in statutory construction, which may be applied in construing constitutional provisions (Mrceino v. Cru*, 11 SCR% +1, +6), +6), the strategic location of Section / indicates that the )onstitutional )ommission )ommission provided for an exception to the actual residency requirement requirement of Section + with respect respect to qualified :ilipinos abroad. abroad. The same )ommission has in effect declared that qualified :ilipinos who are not in the *hilippines may be allowed to vote though they do not satisfy the residency requirement in Section +, Article 6 of the )onstitution. That Section / of Article 6 of the )onstitution is an exception to the residency requirementt found in Section + of the same Article was in fact the sub!ect of debate requiremen when Senate Senate 'ill 3o. /+"%, which which became 0.A. 3o. 3o. #+#, was deliberated deliberated upon on the Senate floor x x x (Min& v. COMELEC, G.R. No. 1+7$1#, u 1$, $$#). W4O ARE ARE 52ALI(IE, 9SEC. '< R.A. R.A. @1@: +. All citiens of the the *hilippines *hilippines abroad abroad /. 3ot otherwise disqualified by law $. At least least eighteen 5+8 years years of age may vote for the following; +. /. $. %.
*resident 6ice president Senators *arty(list represent representatives atives
W4O ARE ARE ,IS52ALI(IE, ,IS52ALI(IE, 9SEC. 9SEC. )< R.A. @1@: @1@:
+. /.
Those who have lost their :ilipino citienship in accordance with *hilippine laws< Those who have expressly renounced their *hilippine citienship and who have pledged allegiance to a foreign country< $. Those who have committed and are convicted in a final !udgment by a court or tribunal of an offense punishable by imprisonment of not less than one 5+8 year, including those who have committed and found guilty of =isloyalty as defined under Art. +$> of the 0evised *enal )ode 50*)8< such disability not having been removed by plenary pardon or amnesty. *rovided, however, that any person disqualified to vote under this subsection shall automatically acquire the right to vote upon expiration of five 5&8 years after service of sentence< *rovided, further, That the )ommission may take cogniance of final !udgments issued by foreign courts or tribunals only on the basis of reciprocity and sub!ect to the formalities and processes prescribed by the 0ules of )ourt on execution of !udgments< %.
An immigrant or a permanent resident who is recognied as such in the host country. ?nless heshe executes, upon registration, an affidavit prepared for the purpose by the )ommission declaring that heshe shall resume actual physical permanent residence in the *hilippines not later than three 5$8 years from approval of hisher registration under this Act. Such affidavit shall also state that heshe has not applied for citienship in another country. :ailure to return shall be the cause for the removal of the name of the immigrant or permanent resident from the 3ational 0egistry of Absentee 6oters and hisher permanent disqualification to vote in absentia.
&.
Any citien of the *hilippines abroad previously declared insane or incompetent by competent authority in the *hilippines or abroad, as verified by the *hilippine embassies, consulates or :oreign Service establishments concerned. ?nless such competent authority subsequently certifies that such person is no longer insane or incompetent.
II. ,IS52ALI(ICATION (OR S2((RA6E (SEC. 118, B.P. 881) a. Persons sentenced by final judgment to suffer imprisonment for not less than 1 year , not having been pardoned or granted amnesty (right to vote is automatically reacquired 5 years after service of sentence). b. Persons adjudged by final judgment by a competent court or tribunal of having committed a crime involving disloyalty to the government or a crime against national security, not restored to full civil and political rights by law (right to vote is automatically reacquired 5 years after service of sentence). c. *ersons insane or incompetent as declared by competent authority.
III. RE6ISTRATION O( OTERS The +#> )onstitution repealed '.*. +, Sec. % @It shall be the duty of every citien to register and cast his vote.BC thus making the duty ,IRECTOR8 . In order that a qualified elector may vote in any election, plebiscite or referendum, he must be registered in the *ermanent Dist of 6oters for the city or municipality in which he resides (B.P. 881, Sec. 11+). Ele#tor( has all the qualifications and none of the disqualifications of a voter, but not registered, and therefore cannot exercise the right of suffrage oter* an individual qualified and not disqualified, registered and thus capable of exercising his right of suffrage a.
Registration E does not confer the right to vote. It is but a condition precedent to the exercise of the right to vote (/r vs. %"0o, + Pi. #8$ 21993). ( It is the system of regulation of an individual7s right to suffrage as conferred by the inherent police power of the Fovernment.
&. Sste? of Continuing Registration E the personal filing for registration of voters shall be conducted daily in the office of the Glection Hfficer during regular office hours. 3o registration shall, however, be conducted during the period starting +/" days before the regular election and #" days before a special election (Sec. 8, R.%. 8189). Note: The S) upheld )H2GDG)7s denial of the request for two additional registration days in order to enfranchise more than % million youth who failed to register on or before =ec. />, /""". It is an accepted doctrine in administrative law that the determination of administrative agencies as to the operation, implementation and application of a law is accorded greatest weight, considering that these specialied government bodies are, by their nature and functions, in the best position to know what they can possibly do or not do under prevailing circumstances. (%"n /ou& v. COMELEC, G.R. No. 147$66, Mrc 6, $$1). #.
,is=ualifi#ation E the same grounds as disqualification for suffrage.
d. Illiterate or disa&led voters E Any illiterate person may register with the assistance of the Glection Hfficer or any member of an accredited citien7s arms. The application for registration of a physically disa&led person may be prepared by any relative within the fourth civil degree of consanguinity or affinity or by the Glection Hfficer or any member of an accredited citien7s arm using the data supplied by the applicant. (R.%. 8189, Sec. 14). e.
Ele#tion Registration -oard 9ER-: E There shall be in each city and municipality as many Glection 0egistration 'oards as there are election officers therein. The 'oard shall be composed of the Glection Hfficer as chairman, and as members, the public
school official most senior in rank and the local civil registrar, or in his absence, the city or municipal treasurer. (R.%. 8189, Sec. 1+). f.
Challenges to the right to register E any 2G2'G0, 6HTG0, )A3=I=ATG or AT)-G0 may challenge in writing the right of an applicant to register. The board must then rule within $ days after the challenge was made.
g. Preparation and Posting of the Certified List of oters E The 'oard shall prepare and post a certified list of voters #" days before a regular election and 1" days before a special election and furnish copies thereof to the provincial, regional, and national central files. )opies of the certified list, along with a list of deactivated voters categoried by precinct per barangay shall also be posted in the office of the Glection Hfficer and in the bulletin board of each citymunicipal hall.
+. /. $. %. &. 1.
6RO2N,S W4EN T4E LIST O( OTERS WILL -E ALTERE, =eactivation 0eactivation Gxclusion Inclusion )ancellation of 0egistration in case of =eath 3ew voters Annulment of 'ook of 6oters Transfer of 0esidence =GA)TI6ATIH3 H: 0GFIST0ATIH3 0emoving the registration records of persons from the precinct book of voters and place the same, properly marked and dated in indelible ink, in the inactive file after entering the cause of deactivation.
+.
/.
$.
%. &. 1.
Causes for ,ea#tivation ( R.%. 8189, Sec. 7) -aving been sentenced by final !udgment to suffer imprisonment for not less than one year, such disability not having been removed by plenary pardon or amnesty 5this right shall be automatically reacquired upon the expiration of five years after service of sentence8. -aving been ad!udged by final !udgment, by a competent court or tribunal, of having committed any crime involving disloyalty to the duly constituted government, unless restored to his full civil and political rights in accordance with law 5*rovided that the right to vote shall be reacquired automatically upon the expiration of five years from service of sentence8. =eclaration by competent authority to be insane or incompetent unless such disqualification has been subsequently removed by a declaration by the proper authority that such person is no longer insane or incompetent. :ailure to vote in the two successive preceding regular elections as shown by their voting records. 0egistration has been ordered excluded by the court. Doss of *hilippine citienship.
REACTIATION O( RE6ISTRATION (Sec. 8, R.%. 8189) Who ?a fileB Any voter whose registration has been deactivated.
4o/B Sworn application for reactivation of his registration in the form of an affidavit stating that the ground for the deactivation no longer exists.
WhenB At any time but not later than +/" days before a regular election and #" days before a special election. INCL2SION AN, E;CL2SION PROCEE,IN6S
a. b.
c. d.
e. f.
g.
Co??on Rules 6overning udi#ial Pro#eedings in the 3atter of In#lusion< E$#lusion and Corre#tion of Na?es of oters *etition shall be filed during office hours. 3otice of the place, date and time of the hearing of the petition shall be served upon the members of the Glection 0egistration 'oard and the challenged voter upon filing of the petition. *etition shall refer only to one precinct and implead the board as respondent. 3o cost shall be assessed against any party in the proceedings.5 Exception: if it was filed to harass the adverse party and cause him to incur expenses, the culpable party shall pay the cost and incidental expenses.8 Any voter, candidate or political party affected may intervene and present his evidence. =ecision is based on the evidence presented and not on stipulation of facts. 3on( appearance on the day set for hearing shall be 5ri cieevidence that the challenged voter is fictitious. It shall be decided within +" days from receipt of the appeal. In all cases, the court shall decide these petitions not later than +& days before the election and the decision shall become final and executory.
Petition for in#lusion Who ?a fileB Any person whose; Application for registration has been disapproved by the board< or 3ame has been stricken out from the list. How?
:iled with a court a petition to include his name in the permanent list of voters in his precinct.
Supported by a certificate of disapproval of his application and proof of service of notice of his petition upon the 'oard. The petition shall be decided within +& days after its filing.
WhenB At any time except +"& days prior to a regular election or >& days prior to a special election. Petition for e$#lusion Who ?a fileB Any registered voter, representative of a political party or the Glection Hfficer. (or? A sworn petition for the exclusion of a voter from the permanent list of voters giving the name, address and the precinct of the challenged voter. WhenB a. At any time except +"" days prior to a regular election or 1& days prior to special election b. )H2GDG) can annul an election urisdi#tion in in#lusion and e$#lusion #ases +. Ecusive Oriin uris:ic&ion; 2unicipal or 2etropolitan Trial )ourts /. %55e; =irectly to the proper 0egional Trial )ourt within & days from receipt of notice. The 0T) shall decide the appeal within +" days from receipt.
a. b. c. J
ANN2L3ENT O( -OO+ O( OTERS 4o/B ?pon verified petition of any voter or election officer or duly registered political party, and after notice and hearing. 6rounds for Annul?ent It was not prepared in accordance with the provisions of the election law, or It was prepared through fraud, bribery, forgery, impersonation, intimidation force or any similar irregularity, or It contains data that are statistically improbable. 3o order, ruling or decision annulling a book of voters shall be executed within #" days before an election (R.%. 8189, Sec. #9).
Annulment of
the list of voters shall not constitute a ground for a pre(proclamation contest(<&u&u v. COMELEC, G.R. Nos. 8484#-44, nur , 199$.).
POLITICAL PARTIES
Part E means either a political party or a sectoral party or a coalition of parties. SECTORAL PART8 - an organied group of citiens belonging to any of the sectors enumerated in Sec. & hereof whose principal advocacy pertains to the special interest and concerns of their sector (Sec. 3, RA !"1). COALITION - an aggrupation of duly registered national, regional, sectoral parties or organiations for political andor election purposes. SECTORAL OR6ANI>ATION - a group of citiens or a coalition of groups of citiens who share similar physical attributes or characteristics, employment, interests, or concerns.
POLITICAL PART8 - Hrganied group of citiens 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 certain of its leaders and members as candidates for public office. 2?ST irs& "e :u reis&ere: with the )H2GDG) before it can acquire !uridical personality.
+inds of Politi#al Parties! a. National part E constituency is spread over the geographical territory of at least a ma!ority of the regions. &. Regional part E constituency is spread over the geographical territory of at least a ma!ority of the cities and provinces comprising the region.
T8PES O( POLITICAL PARTIES 1. Registered Parties! a. &. #. d. e.
,o?inant 3a0orit Part E usually the administration party< entitled to a copy of election return. ,o?inant 3inorit Part E entitled to a copy of election return. 3a0orit Politi#al Part Top % Politi#al Parties E entitled to appoint principal watcher and a copy of the certificate of canvass. -otto? % politi#al parties E entitled to appoint principal watcher.
". Non*registered parties
a. b. c. d. e.
Criteria to ,eter?ine the Tpe of Politi#al Part Gstablished 0ecord of the said parties, showing in past elections. 3umber of Incumbent Glective Hfficials. Identifiable political organiations and strengths. Ability to fill a complete slate of candidates. Hther analogous circumstances. (OR(EIT2RE O( STAT2S AS A RE6ISTERE, POLITICAL PART8 The status shall be deemed forfeited if the political party, singly or in coalition with others, fails to obtain & es& 1$= o &e vo&es cs& in the constituency in which it nominated and supported a candidates in the election next following its registration. There shall be notice and hearing. *olitical parties registered under the *arty(list system shall be entitled to appoint poll watchers in accordance with law (Sec. 8, %r&. >?-C, 1987 Cons&i&u&ion). Sectors shall include labor, peasant, fisher folks, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals (Sec. 4, R% 7941). ELECTION O( PART8*LIST S8STE3! The party(list system is a mechanism of proportional representation in the election of representatives to the -ouse from national, regional and sectoral parties or organiations or coalitions thereof registered with the )H2GDG).(Sec. #23, R.%. 7941). RE6ISTRATION! Any organied group of persons may register as a party, organiation or coalition for purposes of the party(list system by filing with the )H2GDG) not later than ninety 5#"8 days before the election, a petition verified by its president or secretary stating its desire to participate in the party(list system as a national, regional or sectoral party or organiation or a coalition of such parties or organiations. (Sec. +, R.%. 7941).
+.
3o votes cast in favor of political party, organiation or coalition shall be valid except for those registered under the party(list system. (Sec. 7, %r&. >?-C, 1987 Cons&i&u&ion). /. *urposes; To acquire !uridical personality< To entitle it to rights and privileges granted to political parties< and To participate in the party(list system. $. Froups which cannot be registered as political parties (Sec. #, R.%. 7941); a. 0eligious denominations or sects< b. Those who seek to achieve their goals through violence or unlawful means< c. Those who refuse to uphold and adhere to the )onstitution< and d. Those supported by foreign governments. %. Frounds for cancellation of registration (Sec. 6, R.%. 7941);
a. b. c. d.
e. f. g. h.
It is a religious sect or denomination, organiation or association organied for religious purposes< It advocates violence or unlawful means to seek its goal< It is a foreign party or organiation< It is receiving support from any foreign government, foreign political party, foundation, organiation, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes< It violates or fails to comply with laws, rules or regulations relating to elections< It declares untruthful statements in its petition< It has ceased to exist for at least one 5+8 year< or It fails to participate in the last two 5/8 preceding elections or fails to obtain at least two percentum 5/K8 of the votes cast under the party(list system in the two 5/8 preceding elections for the constituency in which it has registered. ELECTION OF PARTY-LIST REPRESENTATIVES The partylist representatives shall constitute twenty per centum of the total number of representatives including those under the partylist. (Sec. 5[2], Art. V. 1!"#, $onstitution%.
No?ination of Part*List Representatives! Gach registered party, organiation or coalition shall submit to the )H2GDG) not later than forty(five 5%&8 days before the election a list of names, not less than five 5&8, from which party(list representatives shall be chosen in case it obtains the required number of votes. A person may be nominated in one 5+8 list only. Hnly person who have given their consent in writing may be named in the list. The list shall not include any candidate for any elective office or a person who has lost his bid for an elective office in the immediately preceding election. 3o change of names or alteration of the order of nominees shall be allowed after the same shall have been submitted to the )H2GDG), except; a. 3ominee dies or b. ithdraws in writing his nomination c. 'ecomes incapacitated, in which case the name of the substitute nominee shall be placed last in the list Incumbent sectoral representatives in the -ouse of 0epresentatives who are nominated in the party(list system shall not be considered resigned.(Sec&ion 8, R.%. 7641).
+. /. $. %.
5ualifi#ations of Part*List Representatives! natural(born citiens of the *hilippines< a registered voter a registered voter of the *hilippines for a period of not less than one 5+8 year immediately preceding the day of the election< able to read and write<
&.
a "on i:e member of the party or organiation which he seeks to represent for at least ninety 5#"8 days preceding the day of the election< 1. at least twenty 5/&8 years of age on the day of the election< in case of a nominee of the youth sector, he must at least be twenty 5/&8 but not more than thirty 5$"8 years of age on the day of the election. Any youth sectoral representative who attains the age of thirty 5$"8 during his term shall be allowed to continue in office until the expiration of his term.(Sec&ion 9, R.%. 7941).
+.
/.
$.
%. &. 1. >. .
The guidelines for deter?ining /hether part*list groups have #o?plied /ith the re=uire?ents of la/D 5See also %n Bon Bni-O!@ L"or Pr& v. COMELEC, G.R. Nos. 147+89 n: 14761#, une 6, $$1). The political party, sector, organiation or coalition must represent the marginalied and the underrepresented groups identified in Section & of 0.A. >#%+. 2a!ority of its membership should belong to the marginalied and underrepresented< hile even ma!or political parties are expressly allowed by 0.A. >#%+ and the )onstitution, they must comply with the declared statutory policy of :ilipino citiens belonging to marginalied and underrepresented sectors to be elected to the -ouse of 0epresentatives.B Thus, they must show that they represent the interest of the marginalied and underrepresented< 0eligious sector may nto be represented in the party(list system< except that priests, imams or pastors may be elected should they represent not their religious sect but the indigenous community sector< A party or an organiation must not be disqualified under Sec. 1, 0.A. >#%+< The party or organiation must not be an ad!unct of, or a pro!ect organied or an entity founded or assisted by, the government< The party, including its nominees must comply with the qualification requirements of Sec. #, 0.A. >#%+< 3ot only the candidate party or organiation must represent the marginalied and underrepresented sectors, so also must its nominees< hile lacking a well(defined political constituency, the nominee must likewise be able to contribute to the formation and enactment of appropriate legislation that will benefit the nation as a whole.
CERTIFICATE OF CANDIDACY
CAN,I,ATE! The term #can$i$ate# refers to any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of parties 2Sec. 79(), B.P. 8813.
Lualifications prescribed by law are continuing requirements and must be possessed for the duration of the officer7s active tenure. Hnce any of the required qualifications is lost, his title to the office may be seasonably challenged. (!riv:o v. COMELEC, G.R. No. 8719#, une #, 19893A (L"o, r. v. COMELEC, G.R. No. 86+64, %uus& 1, 1989)
+. /. $. %.
Rules on (iling of Certifi#ates of Candida# 3o person shall be elected into public office unless he files his certificate of candidacy within the prescribed period. 3o person shall be eligible for more than one office. If heshe files for more than one position, he shall not be eligible for all unless he cancels all and retains one. The certificate of candidacy shall be filed by the candidate personally or by his duly authoried representative. ?pon filing, an individual becomes a candidate, he is already covered by rules, restrictions and processes involving candidates. Appointive officials filin! of ce"tificate of can#i#ac$ . !nder "ection #$ of %& '$', which reiterates "ection of the mnibus *lection +ode, any person holding a public appointive office or position, including active members of the &rmed orces of the Philippines, and officers and employees in governmentowned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. n the other hand, pursuant to "ection #- of %& ' or the air *lection &ct, which repealed "ection / of the mnibus *lection +ode and rendered ineffective "ection ## of %.&. 0-$ insofar as it considered an elected official as resigned only upon the start of the campaign period corresponding to the positions for which they are running, an elected official is not deemed to have resigned from his office upon the filing of his certificate of candidacy for the same or any other elected office or position. 1n fine, an elected official may run for another position without forfeiting his seat.
Section %5a8 of 0esolution 1>, Section 11 of the Hmnibus Glection )ode, and the second proviso in the third paragraph of Section +$ of 0A #$1# are not violative of the equal protection clause of the )onstitution and does not suffer from overbreadth .& ('uinto v.. $ommission on lections, ).*. +o. 1"!!", -eruary 22, 2/1/ % This includes employees of FH))7s without original charter.
:ormal defects in certificate of candidacy, such as lack of the required oath does not annul the election of a candidate (e Gu*n v. Bor: o Cnvssers, 48 Pi 11, 21963) :ailures to indicate in his certificate of candidacy his precinct number and particular barangay where he is a registered voter is not a sufficient ground to disqualify a candidate. It is enough that he is a registered voter in the precinct where he intends to vote which should be within the district where he is running for officeB (uri v. COMELEC, G.R. No. 1$+4#+, une , 19948.
S2-STIT2TION O( CAN,I,AC8 The concept of substitution of candidacy states that if after the last day for the filing of certificates of candidacy, an official candidate of a political party 5+8 dies, 5/8 withdraws,
or is 5$8 disqualified for any cause E a person belonging to, and certified by, the same political party may file a certificate of candidacy 5)H)8 not later than mid(day of election day to replace the candidate who died, withdrew, or was disqualified. As to =GAT-, a deceased candidate is required to have duly filed valid )H), otherwise his political party will not be allowed to file a substitute candidate in his stead. As to IT-=0AAD H: )A3=I=A)4, the withdrawing candidate is required to have duly filed a valid )H) in order to allow his political party to file a substitute candidate in his stead.
The withdrawal of the withdrawal, for the purpose of reviving the certificate of candidacy, must be made within the period provided by law for the filing of certificates of candidacy.
There is nothing in Sec. >$, '.*. +, which mandates that the affidavit of withdrawal must be filed with the same office where the certificate of candidacy to be withdrawn was filed. Thus, it can be filed directly with the; +. main office of the )H2GDG)< /. the office of the regional election director concerned< $. the office of the municipal election supervisor of the province to which the municipality belongs< or %. the office of the municipal election officer of the municipality.(Lore&o-Go v. COMELEC, G.R. No. 147741, M 1$, $$1)
E((ECT O( (ILIN6 TWO 9": CERTI(ICATES O( CAN,I,AC8 0enders a candidate ineligible for either position. ithdrawal of one of the certificates at any time before election renders him eligible for election to the office sought in the remaining certificate of candidacy. Sec.>$, '.*. + requires that the withdrawal of one of the certificates must be made through a s/orn declaration filed with the )ommission before the deadline for the filing of certificates of candidacy. Gffect if the winning candidate is not qualified and cannot qualify for the office to which he was elected; a per?anent va#an# is #reated.
As
to =ISL?ADI:I)ATIH3, it does not include those cases where the )H) of the person to be substituted has been denied due course and canceled under Section > of the Hmnibus Glection )ode. hile the law enumerated the occasion where a candidate may validly be substituted, there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his )H).
T-G0G:H0G, a valid )H) is likewise an indispensable requisite in the case of a substitution of a disqualified candidate. (Mirn: v. %", G.R. No. 1#6#+1, u 8, 1999). ,IS52ALI(ICATIONS +. ?nder the Hmnibus Glection )ode; a. =eclared as incompetent or insane by competent authority< b. )onvicted by final !udgment for subversion, insurrection, rebellion or any offense for which he has been sentenced to a penalty of + months imprisonment< c. )onvicted by final !udgment for a crime involving moral turpitude< 6iolation of '.*. // 6iolation of the Anti(:encing Daw =irect bribery d. Any person who is a permanent resident of or immigrant to a foreign country /. Eec&ion oenses under Sec 1 of the Hmnibus Glection )ode 5HG)8. $. 3ot possessing qualifications and possessing disqualifications under the Docal Fovernment )ode; a. Sentenced by final !udgment for an offense involving moral turpitude or for an offense punishable by one year or more of imprisonment within two years after serving sentence< Note: Those who have not served their sentence by reason of the grant of probation, which should not be equated with service of sentence, should not be disqualified from running for a local elective office because the two(year period of ineligibility does not even begin to run.5 Moreno v. COMELEC, G.R. No. 168++$, %u. 1$, $$6). b. 0emoved from office as a result of an administrative case< c.
)onvicted by final !udgment for violating the oath of allegiance to the 0epublic<
d. =ual citienship 5more specifically, dual allegiance8< e.
:ugitives from !ustice in criminal or non(political cases here or abroad<
Note: A ui&ive ro Dus&ice includes not only those who flee after conviction to avoid punishment, but likewise those who, after being charged, flee to avoid prosecution. (Mrue* v. COMELEC, G.R. No. 17#18, %5ri +, 1999.) f.
*ermanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right< Note: Freen )ardB is ample evidence to show that the person is an immigrant to, or a permanent resident of, the ?nited States of America. 5Csi v. C%, G.R. No. 888#1, Nov. 8, 199$).
g. Insane or feeble(minded. %. &. 1.
3uisance candidate< 6iolation of Sec. >$ of HG) with regard to certificate of candidacy< and 6iolation of Sec. > which is material misrepresentation of requirements under Sec. >%. ,I((ERENT T8PES O( ELECTION ,ISP2TES
a. a.
Pre*ele#tion disputes *etition for =isqualification b. *etition to =eny =ue )ourse or to )ancel a )ertificate of )andidacy
#.
c. *etition to =eclare a 3uisance )andidate &. Pre*pro#la?ation #ontroversies E disputes concerning questions pertaining to; a. The proceedings before the board of canvassers< or b. The preparation, transmission, receipt, custody and appreciation of election returns Post ele#tion disputes a. Glection protest b. Luo warranto c. )riminal prosecution PRE*ELECTION ,ISP2TES a. *etition for =isqualification E is the remedy against any candidate who does not possess all the qualifications required by the )onstitution or law, or who commits any act declared by law to be grounds for disqualification. When to file! The petition may be filed after the filing of )H) but not later than the date of proclamation. Effe#ts of ,is=ualifi#ation of Candidates! Any candidate who has been declared by final !udgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final !udgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the )ourt or )ommission 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 strongB (R.%. 6646, Sec. 6).
3ote that the )H2GDG) can suspend proclamation only when evidence of the winning candidate7s guilt is strong 5Co:i, Sr. v. e 'eneci, e&. ., G.R. No. 1+$6$+, ec. 1$, $$). The use of the word indicates that the suspension of the proclamation is merely permissive. If the )H2GDG) does not find any sufficient ground to suspend proclamation, then a proclamation may be made. 5Greo v. COMELEC, G.R. No. 1+9++, une 19, 1997) It is incorrect to say that since a candidate has been disqualified, the votes intended for the disqualified candidate should in effect, be null and void. This would amount to disenfranchising the electorate in whom sovereignty reside. 5Or&e v. COMELEC, G.R. No. 1$+111, u #, 199). The ineligibility of a candidate receiving ma!ority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected (L"o, r. v. COMELEC, G.R. Nos. 1$+111 n: 1$+#84, u #, 199). Exception%: +. The one who obtained the highest number of votes is disqualified< A3= . The electorate is fully aware in fact and in law of the candidate7s disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate. 5Greo v. COMELEC, G.R. No. 1+9++, une 19, 1997)
•
urisdi#tion! hile the )H2GDG) is vested with the power to declare valid or invalid a certificate of candidacy, its refusal to exercise that power following the proclamation and assumption of the position by :arinas is recognition of the !urisdictional boundaries separating the )H2GDG) and the Glectoral Tribunal of the -ouse of 0epresentatives 5-0GT8. ?nder Article 6I, Section +> of the )onstitution, the -0GT has sole and exclusive !urisdiction over all contests relative to the election, returns, and qualifications of members of the -ouse of 0epresentatives. Thus, once a winning candidate has been proclaimed, taken his oath, and assumed office as a member of the -ouse of 0epresentatives, )H2GDG)7s !urisdiction over election contests relating to his election, returns, and qualifications ends, and the -0GT7s own !urisdiction begins. Thus, the )H2GDG)7s decision to discontinue exercising !urisdiction over the case is !ustifiable, in deference to the -0GT7s own !urisdiction and functions (Guerrero v. COMELEC, G.R. No. 1#7$$4,2u 6, $$$). CO3ELEC Resolution No. ") If a complaint is filed with the )H2GDG) against a candidate who has already been proclaimed winner, charging an election offense under Sec. /1+ of the Hmnibus Glection )ode, as amended by 0epublic Act nos. 11%1 and %$1 and praying for the disqualification of the said candidate, the )H2GDG) shall determine the existence of probable cause for the filing of an Information against the candidate for the election offense charged.
-owever, if the )H2GDG) finds no probable cause, it is mandated to dismiss the complaint for the disqualification of the candidate. If the )H2GDG) finds that there is probable cause, it shall order its Daw =epartment to file the appropriate Information with the 0T) which has territorial !urisdiction over the offense, but shall, nonetheless, order the dismissal of the complaint for disqualification, without pre!udice to the outcome of the criminal case.
If the trial court finds the accused guilty beyond reasonable doubt of the offense charged, it shall also order his disqualification pursuant to Sec. /1% of the Hmnibus Glection )ode, as amended by amended by Section %1 of 0epublic Act 3o. +# (%"n, E&. %. v. COMELEC, E&. %., G.R. No. 16##$, u #, $$4).
b. *etition to =eny =ue )ourse or to )ancel a )ertificate of )andidacy E the )H2GDG), upon proper petition may cancel a certificate of candidacy on the ground that any material representation contained therein as required under Section >% of the '.*. + is false (Sec. 78, B.P. 881), provided that;
The false representation pertains to material matter affecting substantive rights of a candidate< and The false representation must consist of deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. 5 Sce:o >> v. COMELEC, G.R. No. L-168#+, u 6, 196$) These two requirements must concur to warrant the cancellation of the certificate of candidacy. When to file! The petition may be filed not later than /& days from the filing of the certificate of candidacy. It shall be decided not later than +& days before the election, after due notice and hearing. urisdi#tion! over the petition lies with the )H2GDG) in division, not with the )H2GDG) en banc 5Grvi: v. Ses, G.R. No. 187, Se5&. 1$, 1997).
c. *etition to =eclare a 3uisance )andidate E )H2GDG) may o&u 5ro5rio or upon petition of an interested party, refuse to give due course to or cancel a certificate of candidacy if shown that said certificate was filed to; +. *ut the election process in mockery or disrepute< /. )ause confusion among the voters by the similarity of the names of the registered candidates< and
$.
'y other circumstances or acts clearly demonstrating that the candidate has no "on i:e intention to run and thus prevent a faithful determination of the true will of the electorate.
The proclamation of the winning candidate renders moot and academic a motion for reconsideration filed by a candidate who had been earlier declared by the )H2GDG) to be a nuisance candidate (Grci v. COMELEC, G.R. 111#9, u 1, 1996) PRE*PROCLA3ATION CONTROERSIES
0efers any question pertaining to or affecting the proceedings of the 'oard which may be raised by any candidate or by any registered political party or coalition of parties before the board or directly with the )H2GDG). Also refers to any matter raised under Secs. /$$, /$%, /$& and /$1 relating to the preparation, transmission, receipt, custody and appreciation of the election returns (Sec. 41, B.P. 881).
When Pre*Pro#la?ation Cases Not Allo/ed
+. /. $. %.
&eneral Rule: *re(proclamation cases on matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns or the certificates of canvass 3HT allowed in elections of; *resident 6ice(*resident Senator 2ember of the -ouse of 0epresentatives
Exception%: +. =etermination of the authenticity and due execution of certificates of canvass as provided in Sec. $", 0.A. >+11, as amended by 0.A. #$1#< /. )orrection of manifest errors in the certificate of canvass or election return< and $. 2atters relating to the composition or proceedings of the 'oard of )anvassers CO3ELEC urisdi#tion! The )H2GDG) has exclusive !urisdiction over pre( proclamation cases. Note: )H2GDG) is with authority to annul any canvass and proclamation illegally made. The fact that a candidate illegally proclaimed has assumed office is not a bar to the exercise of such power. It is also true that as a general rule, the proper remedy after the proclamation of the winning candidate for the position contested would be to file a regular election protest or uo Frrn&o. This rule, however, admits of exceptions and one of those is where the proclamation was null and void. In such a case, the proclaimed
candidate7s assumption of office cannot deprive the )H2GDG) of the power to declare such proclamation a nullity. (Ron: P. Es5i:o v. COMELEC, e&. ., G.R. No. 1649, Oc&. 11, $$+). Issues Whi#h 3a -e Raised in Pre*Pro#la?ation Controversies! Illegal composition or proceedings of the 'oard of )anvassers<
'y participating in the proceedings, the petitioner is deemed to have acquiesced in the composition of the board of canvassers. A petition based on illegal composition of the board of canvassers should be filed immediately when the 'oard begins to act. A petition filed & days after proclamation is filed out of time (Lo:enio v. COMELEC, G.R. No. 1#91, %uus& 7, 1997). The 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 /$$, /$%, /$& and /$1 of this )ode<
hile the duty of the 'oard of )anvassers is ministerial and, as a general rule, it may not inquire into the issues beyond the election return, the situation contemplated in Secs. /$%, /$& and /$1 allow the 'oard of )anvassers to order the opening of the ballot box and recount the votes of the candidates affected. The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic< and hen substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates. When Pre*Pro#la?ation Cases are dee?ed TER3INATE, 9under RA F1GG:
&eneral Rule: All pre(proclamation cases pending before the )H2GDG) shall be deemed terminated at the beginning of the term of the officer involved and the rulings of the boards of canvassers concerned deemed affirmed. This is without pre!udice to the filing of a regular election protest by the aggrieved party.
Exception%: +. The )H2GDG) determines that the petition is meritorious and issues an order for the proceedings to continue< or /. The Supreme )ourt issues an order for the proceedings to continue in a petition for cer&iorri . Nature of Pre*pro#la?ation Controvers! +. *re(proclamation controversies shall be heard summarily by the )H2GDG).
/.
Its decision shall be executory after the lapse of & days from receipt by the losing party of the decision, unless restrained by the S).
PROCE,2RE! 1. Co??en#e?ent of pre*pro#la?ation #ontrovers ( questions affecting the composition or proceedings of the board of canvassers may be initiated in the board or directly with the )ommission. -owever, matters raised under Sections /$$, /$%, /$& and /$1 of the Hmnibus Glection )ode in relation 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. (Sec. 17, R.%. 7166). ". Su??ar disposition of pre*pro#la?ation #ontroversies * All pre( proclamation controversies on election returns or certificates of canvass shall, on the basis of the records and evidence elevated to it by the board of canvassers, be disposed of summarily by the )ommission within seven 5>8 days from receipt thereof. Its decisions shall be executory after the lapse of seven 5>8 days for receipts by the losing party of the decision of the )ommission. (Sec. 18, R.%. 7166). %. ,isposition of #ontested ele#tion return. (Sec. $, R.%. 7166). '. Partial pro#la?ation ( 3otwithstanding the pendency of any pre(proclamation controversy, the )ommission may summarily order the proclamation of other winning candidates whose election will not be affected by the outcome of the controversy. (Sec. 1, R.%. 7166). 'octrine o Stati%tical *probabilit+ ( It appearing therein that contrary to all statistical probabilities in the first set, in each precinct the number of registered voters equalled the number of ballots and the number of votes reportedly cast and tallied for each and every candidate of the Diberal *arty, the party in power< whereas, all the candidates of the 3acionalista *arty got exactly ero< and in the second set, again contrary to all statistical probabilities all the reported votes were for candidates of the Diberal *arty, all of whom were credited with exactly the same number of votes in each precinct, ranging from /%" in one precinct to 1&" in another precinct< whereas, all the candidates of the 3acionalista *arty were given exactly ero in all said precincts. e opined that the election result to said precincts as reported was utterly improbable and clearly incredible. x x x These returns were obviously false or fabricated. x x x that the returns show Mprima facieM that they do not reflect true and valid reports of regular voting (Lu" v. COMELEC, L-+444, nur #1, 1966).
here the ob!ections to the inclusion of the election returns are directed primarily at the ballots reflected in the returns, the issue involves appreciation of ballots and cannot be raised in a pre(proclamation controversy. (P&or v. COMELEC, G.R. No. 1$8#, Oc&o"er 4, 199+).
The technical examination of the signatures and thumb marks of the voters runs counter to the nature and scope of a pre(proclamation contest< the remedy is to raise these issues in an election contest. (Bin:on v. COMELEC G.R. Nos. 1+#991-9, Oc&o"er 16, $$#).
*adding of the 0egistry Dist of 6oters of a municipality is not a listed ground for a pre( proclamation controversy (<&u&u v. COMELEC, G.R. No. 8484#-44, nur , 199$).
'ecause the petitioner had already been proclaimed, had taken his oath and had assumed his duties as 2ember, -ouse of 0epresentatives, the issue of invalidity of his proclamation and irregularities connected therewith, is a matter properly addressed to the -ouse of 0epresentatives Glectoral Tribunal(L*&in v. COMELEC, G.R. No. 8$$$7, nur +, 1988).
The filing with the )H2GDG) of a petition to annul or to suspend proclamation shall suspend the running of the period to file an election protest (n v. COMELEC, G.R. Nos. 16614#-47. Nove"er $, $$6). POST ELECTION ,ISP2TES OR ELECTION CONTESTS
Any matter involving title or claim of title to an elective office, made before or after the proclamation of the winner, whether or not contestant is claiming office in dispute.
Glection contests involve public interest, and technicalities and procedural barriers must yield if they constitute an obstacle to the determination of the true will of the electorate in the choice of their elective officials. The )ourt frowns upon any interpretation of the law that would hinder in any way not only the free and intelligent casting of the votes in an election but also the correct ascertainment of the results (OHIr v. COMELEC, G.R. No. 1#9$$8. Mrc 1#, $$).
1. a. b. c. d. e. f.
urisdi#tion over Ele#tion Contests riginal an$ Exclu%i-e *resident6ice(*resident E Supreme )ourt en "nc Senator E Senate Glectoral Tribunal 0epresentatives E -ouse of 0epresentatives Glectoral Tribunal 0egional*rovincial)ity E )H2GDG) 2unicipality E 0egional Trial )ourt 'arangaySN E 2unicipal Trial )ourt
". Appellate uri%$iction a. :rom decisions of the 0T) and 2T) E appeal exclusively to )H2GDG), decisions shall be final and executory.
b. :rom decisions of )H2GDG) E petition for revie/ by certiorari filed with the Supreme )ourt within $" days on the ground of grave abuse of discretion amounting to lack of or in excess of !urisdiction or violation of due process. c. :rom decisions of the Glectoral Tribunal E petition for revie/ by certiorari filed with Supreme )ourt on the ground of grave abuse of discretion amounting to lack of or in excess of !urisdiction or violation of due process.
In the exercise of its exclusive appellate !urisdiction, the )H2GDG) has the power to issue writs of prohibition, mandamus, or certiorari, because of the last paragraph of Sec. &", '.*. + (Re5os v. Cu", G.R. No. 118861, %5ri 7, 199+).
,istin#tions &et/een Pre*Pro#la?ation Controvers and Ele#tion Contest
'i-i$ing line: *roclamation of a candidate uri%$iction Pre*Pro#la?ation Controvers
Ele#t ion Cont est
Ourisdiction of )H2GDG) is administrative quasi(!udicial. Ouris dictio n of )H2 GDG) is !udici al. Foverned by requirements of
administrative due process.
Fover ned by the requir emen ts of !udici al due proce ss.
In some cases, even if the case 5involving municipal officials8 began with the )H2GDG) before proclamation but a proclamation is made before the controversy is resolved, it ceases to be a pre(proclamation controversy and becomes an election contest cogniable by the 0T). -owever, in some cases, the Supreme )ourt recognied the !urisdiction of )H2GDG) over municipal cases even after proclamation. 0elate to the provision in 0A >+11 allowing pre(proclamation controversy proceedings to continue even after a proclamation has been made. ACTIONS T4AT 3A8 -E (ILE, a. Glection *rotest A contest between the defeated and winning candidates based on grounds of election frauds or irregularities. )an only be filed by a candidate who has filed a certificate of candidacy and has been voted for.
+. /. a. b. c. d.
Re/ui%ite%: :iled by any candidate who has filed a certificate of candidacy and voted for the same office. Hn grounds of fraud terrorism irregularities or illegal acts committed before, during or after casting and counting of votes. Ti?e to file; within +" days from proclamation of results of election.
An
order regarding the revision of ballots is an interlocutory order because it still requires a party to perform certain acts leading to the final ad!udication of the case (Buon v. COMELEC G.R. No. 1$7987, Mrc #1, 199#). As a general rule, the filing of an election protest or uo Frrn&o precludes the subsequent filing of a pre(proclamation controversy or amounts to an abandonment of one earlier filed(S: v. COMELEC, G.R. No. 1$78+4, u 16, 199#). b. Luo arranto 0efers to questions of disloyalty or ineligibility of the winning candidate< a proceeding to unseat the ineligible person from office but not to install the protestant in his place< may be filed by any voter. Re/ui%ite%: +. :iled by a registered voter /. Hn grounds of a. ineligibility or
b. disloyalty to the 0epublic< Ti?e to file; within +" days from proclamation of results of election. N.B.: The / remedies 5Glection *rotest and Juo @rrn&o8 may not be !oined in one petition. Ele#tion 0uo arranto Protest Strictly a contest 0efers to questions between the of disloyalty or defeated and ineligibility of the winning winning candidate. candidates, It is a proceeding to based on grounds unseat the of election frauds ineligible person or irregularities, from office, but not as to who to install the actually obtained protestant in his the ma!ority of place. the legal votes and therefore is entitled to hold the office. )an only be filed )an be filed by any by a candidate voter. It is for this who has duly reason that it is not filed a certificate considered a of candidacy and contest where the has been voted parties strive for for. supremacy. A protestee may hile the be ousted and the respondent may be protestant seated unseated, the in the office petitioner will not vacated. be seated. 5 Luison v. Grci, G.R. No. L-1$981, %5ri +, 19+8 A/ard of ,a?ages E Actual or compensatory damages may be granted in all election contests or in uo Frrn&o proceedings.
+. /. $. %. &.
&eneral Rule: The filing of an election protest or uo Frrn&o *0G)D?=GS the subsequent filing of a pre(proclamation controversy or amounts to an abandonment of one earlier filed, thus depriving the )H2GDG) of the authority to inquire into and pass upon the title of the protestee or the validity of his proclamation. Exception%: The 'oard of )anvassers was improperly constituted. Luo warranto is not the proper remedy. hat was filed was not really a petition for quo warranto or an election protest but a petition to annul a proclamation. The filing of an election contest was expressly made without pre!udice to the pre( proclamation controversy, or was made : cu&e. The proclamation was null and void (us, r. v. COMELEC, G.R. No. 1419+-+#, %5ri $, $$1).
The death of the protestant does not extinguish an election protest. Glection protest is imbued with public interest which raises it onto a plane over and above ordinary civil actions, because it involves only the ad!udication of the private interest of the rival candidates but also the paramount need of dispelling once and for all the uncertainty that beclouds the real choice of the electorate with respect to who shall discharge the prerogatives of the office within their gift (e Cs&ro v. COMELEC, G.R. No. 1+49, !e"rur 7, 1997).
The widow of the protestant has no status of real party in interest to substitute or intervene for the latter who died during the pendency of the election protest. 5 Poe v. %rroo, P.E.. Cse No. $$, Mrc 9, $$+).
ELECTION CAMPAIGN / PARTISAN POLITICAL ACTIVITY
The term Keec&ion c5inK or K5r&isn 5oi&ic c&ivi&K refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include; +. :orming organiations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes andor undertaking any campaign for or against a candidate< /. -olding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes andor undertaking any campaign or propaganda for or against a candidate< $. 2aking speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office< %. *ublishing or distributing campaign literature or materials designed to support or oppose the election of any candidate< or &. =irectly or indirectly soliciting votes, pledges or support for or against a candidate (Sec. 792"3, B.P. 881)
Any person, including officers and employees in civil service, which shall be understood to include officers and employees of FH))7s, are not prevented from expressing his views on current political problems or issues or, from mentioning names of candidates for public office, which he supports.
+.
/. $.
%. &.
La/ful Ele#tion Propaganda under the (air Ele#tion A#t *amphlets, leaflets, cards, decals, stickers, or other written or printed materials the sie of which does not exceed eight and one(half inches in width and fourteen inches in length. -andwritten or printed letters urging voters to vote for or against any particular political party or candidate for public office. )loth, paper or cardboard posters, whether framed or posted, with an area not exceeding / feet by $ feet, except that, 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 $ feet by feet in sie, shall be(allowed; Provi:e:, That said streamers may be displayed & days before the date of the meeting or rally and shall be removed within /% hours after said meeting or rally. *aid advertisements in print or broadcast media; Provi:e:, that the advertisements shall follow the requirements set forth in Sec. % of :air Glection Act. All other forms of election propaganda not prohibited by the Hmnibus Glection )ode or :air Glection Act (Sec. #, R.%. 9$$6,). *rohibited :orms of Glection *ropaganda (R% 9$$6, Sec. 1$) The prohibition against certain forms of election propaganda was upheld as a valid exercise of police power, &o 5reven& &e 5erversion n: 5ros&i&u&ion o &e eec&or 55r&us, n: o &e :eni o &e :ue 5rocess o F 5 B:o v. COMELEC #+ SCR% 8+ 2197$3). I?portant (eatures of (air Ele#tion A#t 9RA @G:! 0epeal of Sec. 1> of the HG) 3ow, any GDG)TI6G official, whether national or local, running for any office other than the one which he is holding in a permanent capacity shallnot &e #onsidered ip%o acto resigned from his office upon the filing of his certificate of candidacy.
+. a. b. c. /.
ELECTION E;PENSES Li?itations :or candidates; *resident and 6ice(*resident P *+"voter< Hther candidates, if with party P *$voter< Hther candidates, if without party P *&voter. :or political parties P *&voter. Statement of )ontribution and Gxpenses
Gvery candidate and treasurer of political party shall, within $" days after the day of election, file with the )H2GDG) the full, true and itemied statement of all contributions connected with election (R.%. 7166, Sec. 14).
BOARD OF ELECTION INSPECTORS
Co?position of -oard of Ele#tion Inspe#tors 9-EI: a. )hairman b. / members
+. /. $. %. &. 1.
5ualifi#ations All must be public school teachers. 2ust be of good moral character and irreproachable reputation. 0egistered voters of the city or municipality. -ave never been convicted of election offense or crime punishable by more that 1 months imprisonment. 3o pending information for an election offense. 2ust be able to speak and write Gnglish or the local dialect.
,is=ualifi#ation of -EI +. 2ust not be related within the %th civil degree of consanguinity or affinity to any member of the 'GI or to any candidate to be voted for in the polling place. /. 2ust not engage in any partisan political activity.
+. /. $. %. &. 1.
Po/ers of the -EI )onduct the voting and counting of votes. Acts as deputies of )H2GDG) in the supervision and control of election. 2aintain order within the polling place and its premises. To keep access thereto open and unobstructed. To enforce obedience with its lawful orders. *erform other functions prescribed.
Pro#eedings of -EI +. 2eetings of the 'GI shall be public and held only in the authoried polling place. /. 'GI has authority to maintain order within the polling place and its premises, to keep access thereto open and unobstructed and to enforce obedience to its lawful orders.
WATCHERS
9Se#. 1F of -.P. 1 as a?ended & Se#. "G of RA F1GG: Lualifications
/. $. %. &.
+. /. $. %. &.
+. 6oter of city or municipality. Food reputation. 3ot have been convicted of any election offense of any kind. Nnow how to read and write. 3ot related within %th civil degree of consanguinity or affinity to any member of 'GI. Rights and ,uties of Wat#hers Stay in the space reserved for them inside the polling place. itness and inform themselves of the proceedings of the 'GI. Take notes and photographs of proceedings. :ile protests against any irregularity or violation of law. 'e furnished with the certificate of the number of votes cast for each candidate, duly signed and thumb marked by the members of the 'GI.
+IN,S O( -ALLOTS 1. Offi#ial -allots /. Gmergency 'allots ( used when official ballots were not received on time or not sufficient for all registered voters or destroyed at such time as shall render it impossible to replace them, in which cases, the citymunicipal treasurer concerned shall procure from any available source which shall be similar to official ones. $. Gxcess 'allots E found in ballot box which exceed number of registered voters who cast their votes. %. 2arked ballots E contain signs or marks intended to identify ballot. 2in$%: a. )ontaining impertinent expressions< b. )ontaining drawings, identical features and characteristics< c. )ontaining names of important personages< and d. )ontaining common and qualifying expressions, which are patently irrelevant. &. Submarine 'allots E those prepared, under a system of election frauds, by persons other than the real voters.
a.
b.
c. d. e.
R2LES IN APPRECIATION of -ALLOTS $e* %ona* E 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. hen / or more words written on the same line all of which are the surname of / or more candidates, it shall not be counted for any of them unless + is a surname of an incumbent who has served for at least + year in which case it shall be counted in favor of the latter 5equity of the incumbent8. hen a single word is written which is the first name of a candidate at the same time the surname of another, the vote shall be counted in favor of the latter. hen / words are written on the ballot, one of which is the +st name of the candidate and the other is the surname of his opponent, the vote shall not be counted for either. 'allots containing prefixes such as Sr.B, 2r.B, =atuB, =onB are valid.
3icknames and appellations if accompanied by the +st name or surname of the candidate are valid G9)G*T when they are used as a means to identify the voter. g. If the candidates voted for exceeded the number of those to be voted for, the ballot is valid. h. If it cannot be determined, considered as ST0A4 6HTG f.
Appreciation of ballotsB is a function of the 'GI, not of the 'oard of )anvassers (Snce* v. COMELEC, 1+# SCR% 67 219873)B
In appreciating a ballot, the ob!ect should be to ascertain and carry into effect the intention of the voter if it can be determined with reasonable certainty. Thus, the name of the candidate preceded by the words 'o. 'arangayB should be interpreted to mean *o. 5or *unong8 'arangayB, and should be counted for the candidate. (Bu&is& v. Cs&ro, $6 SCR% #$+ 21993).
The ineligibility of a candidate receiving ma!ority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. The votes intended for the disqualified candidate should not be considered null and void, as it would amount to disenfranchising the electorate in whom sovereignty resides. (%"n, e& ., v. COMELEC, G.R. No. 16##$, u #, $$4) There must be a final !udgment before the election in order that the votes of a disqualified candidate can be considered strayB, the obvious rationale behind the foregoing ruling isQ the people voted for him bona fide, without any intention to misapply their franchise, and in the honest belief that the candidate was then qualified to be the person to whom they would entrust the exercise of the powers of government (P"o Oc5o v. IRE, G.R. No. 1+8466. une 1+, $$4).
a.
&.
#.
d.
CANVASS AND PROCLAMATION
CANASSIN6 -8 T4E -OAR, O( CANASSERS Co?position Provin#ial E A *rovincial Glection Supervisor or a Senior Dawyer in the 0egional Hffice of )H2GDG) as )hairman, the *rovincial :iscal as 6ice()hairman and the *rovincial Superintendent of Schools and one representative from each ruling party as members. Cit E the )ity Glection 0egistrar or a Dawyer of )H2GDG) as )hairman, the )ity :iscal and the )ity Superintendent of Schools and one representative from each ruling party and the dominant opposition political party as members. ,istri#t E a Dawyer of )H2GDG) as )hairman and a 0anking :iscal in the district and the most senior district School Supervisor to be appointed and one representative from each ruling party and the dominant opposition political party as members. 3uni#ipal E The Glection 0egistrar or a representative of )H2GDG) as )hairman, the 2unicipal Treasurer and the =istrict Supervisor or in his absence, any *ublic School
*rincipal and one representative from each ruling party and the dominant opposition political party as members. Po/ers H ,ut of -oard of Canvassers a. To meet immediately after the election and to count the votes cast for the candidate from the election returns submitted to it. b. It is empowered to accept as correct those returns which are in due form and to ascertain and declare the result as it appears therefrom. c. The 'oard of )anvassers is a ministerial body. 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 and then declaring or certifying the result so ascertained. d. *repares the Statement of 6otes, which I.=. tabulation per precinct of the votes obtained by the candidates as reflected in the election returns. It is the Statement of 6otes which form the basis of the )ertificate of )anvass and of proclamation. The )H2GDG) shall have direct control and supervision over the board of canvassers. 'y conducting such unoffi#ialJ tabulation of the results of the election, the )H2GDG) descends to the level of a private organiation, s5en:in 5u"ic un:s or &e 5ur5ose. 'esides, it is absurd for the )H2GDG) to conduct two kinds of electoral counts E a slow but officialB count, and an alleged quicker but unofficialB count, the results of each may substantially differ. This not only violates the exclusive prerogative of 3A2:0GD to conduct an unofficialB count, but also taints the integrity of the envelopes containing the election returns, as well as the returns themselves, by creating a gap in its chain of custody from the 'oard of Glection Inspectors to the )H2GDG). Thus, if the )H2GDG) is proscribed from conducting an official canvass of the votes cast for the *resident and 6ice(*resident, the )H2GDG) is, with more reason, prohibited from making an unofficialB canvass of said votes (Brin&es v. COMELEC, G.R. No. 16#19#, une 1+, $$4). Nature of Pro#eedings! )anvass of *roceedings is administrative and summary in nature. A ma!ority vote of all the members of the board shall be necessary to render decision (B.P. 881, Sec.4). PROCLA3ATION )anvassing completed H3D4 after the completion of the canvass, separate statements of all the votes received A3= the proclamation of winners. After the proclamation, the existence of the 'oard is terminated. Incomplete canvass of votes is illegal and cannot be made the basis of proclamation. A canvas cannot be reflective of the true vote unless all returns are considered and none are omitted.
here
a proclamation is null and void, the proclaimed candidate7s assumption of office cannot deprive the )H2GDG) of the power to declare such a proclamation a nullity (<&&o v. COMELEC G.R. No. 1+$111, nur #1, $$).
3o law provides for a reglementary period within which to file a petition for annulment of election if there is, as yet, no proclamation. (Loon v. COMELEC, +7 SCR% 1 219963). CO3ELEC urisdi#tion G9)D?SI6G Ourisdiction on ADD pre(proclamation controversies
RECO2NT O( OTES ?pon proper petition, the )H2GDG) may order the recount of votes in the specific precincts when the following requisites are present; +. Frounds for recount; a. Hmission of the name of a candidate andor his votes in the election returns which cannot be ascertained by any other means under Sec /$% of the HG). b. All copies of the election returns are tampered with or falsified under Sec /$& of the HG) c. 2aterial discrepancies in all of the election returns in the votes of a candidate in words and figures, under Sec /$1. /. The election returns involved will affect the result of the election $. The integrity of the ballot has been preserved. A proceeding for recount is summary in character and merely consists in mathematical counting of the votes received by each candidate. It does not involve any appreciation of the ballots or the determination of their validity as required in an election contest.
ELECTION OFFENSES
Prohi&ited A#ts 9-P 1 and RA GG'G: +. 6ote(buying or vote selling. /.
agering of results. Note: Any money or thing of value put up as a bet or wager shall be forfeited in favor of the Fovernment.
$.
Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion.
%.
Appointment of new employees 5ece5& in cse o uren& nee:, Fi& no&ice iven &o &e COMELEC Fi&in &ree :s ro &e 55oin&en&), creation of new positions, promotion or giving salary increases %& days before a regular election and $" days before a special election E?CEP when so authoried.
&.
Carrying of deadly weapons within a radius of +"" meters from the precincts.
Note: It is not necessary that the deadly weapon be seied from the accused while he was in the precinct or within a radius of +"" meters therefrom< it is enough that the accused carried a deadly weapon within the prohibited radius during any of the days and hours specified in the law. 5 M55 v. u:e Nune*, %.M. No. R-94-1$8, n. 6, 199+). 1. Transfer or detail of government officialsemployees without )H2GDG) approval. Note: o 5rove vio&ion, &Fo eeen&s us& concur; a. The fact of transfer or detail within the election period as fixed by )H2GDG)< and b. The transfer or detail was made without prior approval of the )H2GDG) in accordance with its implementing rules and regulations. 5 Peo5e v. Rees, G.R. No. 11+$, %u. 14, 199+). Note: The transfer or detail of government officer or employee will not be penalied if done to promote efficiency in the government service. (Peo5e v. Rees, su5r). >.
*rinting of official ballots and election returns by any printing establishment which is not under contract with the )H2GDG).
.
Any member of the 'GI or 'H) who 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.
#.
0efusal to issue to duly accredited watchers the certificate of voters.
+". 6iolation of the rules regarding prohibited forms of election propaganda< ++. Any chairman of the board of canvassers who fails to give notice of meetings to other members of the board, candidate or political party as required under Sec. /$ hereof. +/. Any person declared a nuisance or disqualified candidate who continues to misrepresent himself out, as a candidate. OTE -28IN6 AN, OTE*SELLIN6 A . Covered A#ts +. Five, offer or promise money or anything of value. /. 2aking or offer to make any expenditure, directly or indirectly, or cause expenditure to be made to any person, association, corporation, entity or community. $. Soliciting or receiving, directly or indirectly, any expenditure or promise of any office or employment, public or private. -. Purpose of A#ts
+.
To induce any one or the public in general to vote for or against any candidate or withhold his vote in the election. /. To vote for or against any aspirant for the nomination or choice of a candidate in a convention or similar selection. C. 2nder RA GG'G 9Prose#ution of ote*-uingKSelling: +. *resentation of a complaint supported by affidavits of complaining witnesses attesting to the offer or promise by or the voters acceptance of money or other consideration from the relatives, leaders or sympathiers of a candidate is sufficient basis for an investigation by the )H2GDG), directly or through its duly authoried legal officers. /. is5u&"e 5resu5&ion o con%pirac+: *roof that at least one voter in different precincts representing at least /"K of the total precincts in any municipality, city or province has been offered, promised or given money, valuable consideration or other expenditure by a candidate, relatives, leaders andor sympathiers for the purpose of promoting the election of such candidate. $. is5u&"e 5resu5&ion o in-ol-e*ent: *roof affects at least /"K of the precincts of the municipality, city or province to which the public office aspired for by the favored candidate relate. This will constitute a disputable presumption of the involvement of such candidate and of his principal campaign managers in each of the municipalities concerned in the conspiracy. COERCION O( A S2-OR,INATE A. Who are lia&leB +. *ublic officer /. Hfficer of a publicprivate corporationassociation $. -eadssuperioradministrator of any religious organiation %. Gmployerlandowner -. Prohi&ited A#ts +. )oercing, intimidating or compelling or influencing, in any manner, any subordinates, members, parishioners or employees or house helpers, tenants, overseers, farm helpers, tillers or lease holders to aid, campaign or vote for or against a candidate or aspirant for the nomination or selection of candidates. /. =ismissing or threatening to dismiss, punishing or threatening to punish by reducing salary, wage or compensation or by demotion, transfer, suspension etc.
APPOINT3ENT O( NEW E3PLO8EES< CREATION O( NEW POSITION< PRO3OTION OR 6IIN6 SALAR8 INCREASES A. Who are lia&leB
Any headofficialappointing officer of a government office, agency or instrumentality, whether national or local, including FH))s. -. +. /. $.
Prohi&ited A#ts! Appointing or hiring a new employee 5provisional, temporary or casual8< )reating or filling any new position< *romotinggiving an increase in salary, remuneration or privilege to any government official or employee.
C. Period /hen A#ts are Prohi&ited +. %& days before a regular election /. $" days before a special election ,. E$#eptions +. ?pon prior authority of )H2GDG) if it is satisfied that the position to be filled is essential to the proper functioning of the officeagency concerned and that the position is not filled in a manner that may influence the election. /. In case of urgent need, a new employee may be appointed. 3otice of appointment should be given to )H2GDG) within $ days from appointment. PRO4I-ITION A6AINST RELEASE< ,IS-2RSE3ENT OR E;PEN,IT2RE O( P2-LIC (2N,S A. Who #an &e held lia&leB Any public official or employee including barangay officials and those of FH))ssubsidiaries. -. Prohi&ited A#ts The release, disbursement or expenditure of public funds for any and other kinds of public works. C. Period /hen A#ts are Prohi&ited +. %& days before a regular election /. $" days before a special election
,. E$#eptions +. 2aintenance of existingcompleted public works pro!ect. /. ork undertaken by contract through public bidding or by negotiated contract awarded before the %& day period before election. $. *ayment for the usual cooperation for working drawings, specifications and other procedures preparatory to actual construction including the purchase of material and equipment and incidental expenses for wages. %. Gmergency work necessitated by the occurrence of a public calamity but such work shall be limited to the restoration of the damaged facility.
&.
Hngoing public work pro!ects commenced before the campaign period or similar pro!ects under foreign agreements. S2SPENSION O( ELECTIE< PROINCIAL< CIT8< 32NICIPAL OR -ARAN6A8 O((ICER &eneral Rule: *ublic official CANNOT suspend any of the officers enumerated above during the election period.
Exception%: +. ith prior approval of )H2GDG). /. Suspension is for the purpose of applying the Anti(Fraft and )orrupt *ractices Act. a%
Violations In relation to registration of voters/voting ?n!ustifiable refusal to register and vote. 6oting more than once in the same electionvoting when not a registered voter. 6oting in substitution for another with or without the latter7s knowledge andor consent etc. &% +.
/.
$. %. &. 1.
>.
Other Election Offenses under RA 6646 )ausing the printing of official ballots and election returns by printing establishments not on contract with )H2GDG) and printing establishments which undertake unauthoried printing. Tampering, increasing or decreasing the votes received by a candidate or refusing after proper verification and hearing to credit the correct votes or deduct the tampered votes 5committed by a member of the board of election inspectors8 0efusing to issue the certificate of voters to the duly accredited watchers 5committed by a member of the 'GI8. *erson who violated provisions against prohibited forms of election propaganda. :ailure to give notice of meetings to other members of the board, candidate or political party 5committed by the )hairman of the board of canvassers8. A person who has been declared a nuisance candidate or is otherwise disqualified who continues to misrepresent himself as a candidate 5Gx. by continuing to campaign8 and any public officer or private individual who knowingly induces or abets such misrepresentation by commission or omission. If the chairman of the 'GI fails to affix his signature at the back of the official ballot, in the presence of the voter, before delivering the ballot to the voter (
2RIS,ICTION OER ELECTION O((ENSES The CO3ELEC has exclusive !urisdiction to investigate and prosecute cases involving violations of election laws, but it may validly delegate the power to the *rovincial *rosecutor as it did when it promulgated 0esolution 3o. +1/, dated 2arch /, +#>. The RTC has exclusive original !urisdiction to try and decide any criminal actions or proceedings for violation of election laws. The metropolitan or municipal trial courts, by
way of exception, exercises !urisdiction only over offenses as a matter of exception to the general provisions on !urisdiction over criminal cases found under '.*. +/# as amended (N:o* v. Lvies, +4 SCR% 86 219963). Preferential disposition of ele#tion offenses The )H2GDG) shall investigate without delay election offenses and resolve them within & days from submission. The courts shall likewise give preference to these offenses over all other cases G9)G*T petitions for writ of habeas corpus.
Pres#riptive Period for Ele#tion Offenses & years from date of commission. If the discovery of the offense is made in an election contest proceeding, the period of prescription commences on the date on which !udgment becomes final and executory.
6ENERAL POWERS O( T4E CO3ELEC 1. E$e#utive E enforcement and administration of election laws. ". Legislative E issuance of rules and regulations to implement the election laws and other legislative functions as may be expressly delegated by )ongress. A
draft resolution does not operate as a final resolution of a case until the proper resolution is duly signed and promulgated (Cinin v. Cour& o %55es, E&. %., G.R. No. 1+4616, u 1, $$4).
%.
udi#ial E resolution of controversies that may arise in the enforcement of election laws and to be the sole !udge of all pre(proclamation disputes and contests relating to the elections, returns and qualifications of all regional, provincial and city officials. (AIL2RE O( ELECTION! Instan#es! +. The election in any polling place has not been held on the date fixed on account of force ma!eure, violence, terrorism, fraud, or other analogous causes< /. The election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force ma!eure, violence, terrorism, fraud, or other analogous causes< $. 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 failure to elect on account of force ma!eure, violence, terrorism, fraud, or other analogous causes. There are only three ($) instances where a failure of election may be declared, namely2 (a) the election in any polling place has not been held on the date fi3ed on account of force ma0eure, violence, terrorism, fraud, or other analogous causes4 (b) the election in any polling place had been suspended before the hour fi3ed by law for the closing of the voting on account of force ma0eure, violence, terrorism, fraud or other analogous
causes4 (c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect an account of force ma0eure, violence, terrorism, fraud, or other analogous causes. 1n all instances there must have been failure to elect4 this is obvious in the first scenario where the election was not held and the second where the election was suspended. &s to the third scenario, the preparation and transmission of the election returns which give rise to the consequence of failure to elect must as aforesaid be literally interpreted to mean that nobody emerged as a winner. (ypoco, r. vs. $34$en anc6 ).*. +o. 171!1 +ovemer 2!, 1!!!%
Who has the po/er to de#lareB The )H2GDG) en "nc has the original and exclusive !urisdiction to hear and decide petitions for declaration of failure of election or for annulment of election results (Sec.4, R.%. 7166).
The proclamation of the winning candidate does not divest the )H2GDG) of such !urisdiction, where the proclamation is null and void or is claimed to be so. (%5&un v. COMELEC, G.R. No. 1498$#, n. #1, $$).
What are the #onditions &efore CO3ELEC #an a#t on the petitionB +. 3o voting took place in the precincts on the date fixed by law, or even if there was voting, the election resulted in failure to elect< A3= /. The votes not cast would have affected the result of the election.(n v. COMELEC, G.R. No. 148+7+-76, ec. 1$, $$#).
The cause of such failure may arise before or after the casting of votes or on the day of the election.(B&"or v. Coission on Eec&ions, e& ., G.R. No. 16$48, u 1, $$4) CO3ELEC Rules of Pro#edure here the )H2GDG), in division, allegedly committed grave abuse of discretion or acted without or in excess of !urisdiction in issuing an interlocutory order, Sec. &5c8, 0ule $ of the +##$ )H2GDG) 0ules of *rocedure applies.
Hnly final orders of the )H2GDG) in =ivision may be raised before the )H2GDG) en banc. Sec. $, Art. I9() of the +#> )onstitution mandates that only motions for reconsideration of final decisions shall be decided by the )H2GDG) en banc. ?nder this constitutional provision, the )H2GDG) en banc shall decide motion for reconsideration only of decisionsB of a =ivision, meaning those acts having a final character. )learly, the assailed s&&us uo n&e Hrder, being interlocutory, should first be resolved by the
