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ELECTION LAWS QUESTIONS AND ANSWERS Q — Rev. Nardo B. Cayat filed his certificate of candidacy candidacy for Mayor Mayor of Buguias, Buguias, Benguet for the May 2004 elections. Thomas Palileng, another candidate for Mayor filed a petition to annul/nullify his certificate of candidacy and/or to disqualify on the ground that Cayat has been convicted of a crime involving moral turpitude. Twenty three days before the election, Cayat‘s disqualification became final and executory. He, however won and was proclaimed and assumed office. Palileng filed an electoral protest contending that Cayat was ineligible to run for mayor. The Vice-Mayor intervened and contended that he should succeed Cayat in case he is disqualified because Palileng was only a second placer, hence, he cannot be declared as the winner. Is the contention of the Vice-Mayor correct? Why? ANS: No, because there was no second placer, hence, Palile ng should be proclaimed as the winner on the following grounds: First, the COMELEC‘s Resolution of 12 April 2004 cancelling Cayat‘s certificate of candidacy due to disqualification became final and executory on 17 April 2004 when Cayat failed to pay the prescribed filing fee. Thus, Palileng was the only candidate for Mayor of Buguias, Benguet in the 10 May 2004 elections. Twenty-three days before the election day, Cayat was already disqualified by final judgment to run for Mayor in the 10 May 2004 elections. As the only candidate, Palileng was not a second placer. On the contrary, Palileng was the sole and only placer, second to none. The doctrine on the rejection of the second placer, which triggers the rule on succession, does not apply in the present case because Palileng is not a second-placer second- placer but the only placer. Consequently, Palileng‘s pr oclamation oclamation as Mayor of Buguias, Benguet is beyond question. Second, there are specific requirements for the application of the doctrine on the rejection of the second placer. The doctrine will apply in Bayacsan‘s favor, regardless of his intervention in the the present case, if two conditions concur: (1) the decision on Cayat‘s disqualification remained pending on election day, 10 May 2004, resulting in the presence of two mayoralty candidates for Buguias, Benguet in the elections; and (2) the decision on Cayat‘s Caya t‘s disqualification became final only after the elections. (Cayat v. COMELEC, April 27, 2007). Q — It was contended that the doctrine of rejection of the second placer laid down in Labo v. COMELEC should apply. Is the contention correct? Why? ANS: No. Labo, Jr. v. COMELEC, which enunciates the doctrine on the reject ion of the second placer, does not apply because in Labo there was no final judgment of disqualification before the elections. The doctrine on the rejection of the second placer was applied in Labo and a host of other cases because the judgment declaring the candidate‘s disqualif ication in Labo and the other cases had not become final before the elections. Labo and other cases applying the doctrine on the rejection of the second placer have one common essential condition – the – the disqualification of the candidate had not become final before the elections. This essential condition does not exist in the present case. (Cayat v. COMELEC). Reason in Labo. In Labo, Labo‘s disqualification became f inal inal only on 14 May 1992, three days after the 11 May 1992 elections. On election day itself, Labo was still legally a candidate. In the case of Cayat he was disqualified by final judgment 23 days before the 10 May 2004 lections. On election day, Cayat was no longer legally a candidate for mayor. In short, Cayat‘s candidacy for Mayor was legally non -existent in the 10 May 2004 elections. Q—
What is the effect if a candidate is disqualified by final judgment? Explain.
ANS: The law expressly declares that a candidate d isqualified by final judgment before an election cannot be voted for, and votes cast for him shall not be counted. This is a mandatory provision of law. Section 6 of Republic Act No. 6646, The Electoral Reforms Law of 1987, states:
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Any candidate who has been declared by final judgm ent 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 judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, 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. Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when the disqualification becomes final before the elections, which is the situation covered in the first sentence of Section 6. The second is when the disqualification becomes final after the elections, which is the situation covered in the second sentence of Section 6. The present case falls under the first situation. Section 6 of the Electoral Reforms Law governing the first situation is categorical: a candidate disqualified by final judgment before an election cannot be voted for, and votes cast for him shall not be counted. The Resolution disqualifying Cayat became final on 17 April 2004, way before the 10 May 2004 elections. Therefore, all the 8, 164 votes cast in Cayat‘s favor are stray. Cayat was never a candidate in the 10 May 2004 elections. Palileng‘s proclamation is proper because he was the sole and only candidate, second to none. (Cayat v. COMELEC). Q—
Why is the proclamation of Cayat void? Explain.
ANS: Cayat‘s proclamation is void because the decision disqualifying him had already become final on 17 April 2004. There is no longer any need to ascertain whether there was actual knowledge by the voters of his disqualification when they casted their votes on election day because the law mandates that Cayat‘s votes ―shall not be counted‖. There is no disenfranchisement of the voters. Rather, the voters are deemed by law to have deliberately voted for a non- candidate, and thus their votes are stray and ―shall not be counted‖. (Cayat. v. COMELEC). Q—
Is the intervention of the Vice-Mayor proper? Why?
ANS: No. The petition-in-i ntervention should be rejected because the doctr ine on the rejection of the second placer does not apply to this case. The doctrine applies only if the winning candidate‘s disqualification has not yet become final and executory before the election. In this case, the disqualification was final and executory before the election, hence, there was no second placer. (Cayat v. COMELEC). Three-term limit; even if ―as caretaker‖. Q — Mayor Marino Morales ran for a fourth term despite having served for three (3) consecutive terms as Mayor of Mabalacat, Pampanga. In answer to a petition to cancel his certificate of candidacy, he alleged that while he served his second term, he did it as a ―caretaker of the office‖ or as a ―de facto officer‖ because he was suspended by the Ombudsman from Ja nuary 16, 1999 to July 15, 1999 and that his proclamation was declared void and which became final and executory on August 6, 2001. The COMELEC declared him disqualified. Before the Supreme Court, he contended that his second term from July 1, 1999 to June 30, 2001 may not be counted since his proclamation was void. Is the contention correct? Why? ANS: No, because his service from July 1, 1999 to June 30, 2001 was for a full t erm, hence, the three term limit rule applies to him. This is especially so that he assumed office. He served as mayor up to June 30, 2001. He was mayor for the entire period notwithstanding the decision in the electoral protest case ousting him as mayor. As held in Ong v. Alegre, G.R. Nos. 162395 and 163354, January 23, 2006, 479 SCRA 473, such circumstance does not constitute an interruption in serving the full term. In Ong, he served the full term even as there was a declaration of failure of election. Section 8, Article X of the Constitution provides that the terms of the office of elected local officials x x x, shall be three years and no such official shall serve for more than three consecutive terms. x x x
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Section 43(b) of R.A. No. 7160 (the Local Government Code) clearly provides that no local official shall serve for more than three consecutive terms in the same position. Morales has been mayor of Mabalacat continuously without any break since July 1, 1995, hence, he is disqualified. (Rivera III, et al. v. COMELEC, G.R. No. 167591 and Dee v. COMELEC, et al., G.R. No. 170577, May 6, 2007). Q—
Explain the reason for the maximum term limit.
ANS: The framers of the Constit ution wanted to establish some safeguards against the excessive accumulation of power as a result of consecutive terms. As held in Latasa v. COMELEC, G .R. No. 154829, December 10, 2003, 417 SCRA 601, the three -term limit is an exception to the people‘s freedom to choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office. (Rivera III, et al. v. COMELEC, et al., G.R. No. 167591 and companion case, May 9, 2007). Q—
Is not the case of Morales similar to the case of Lonzanida v COMELEC? Explain.
ANS: No. In Lonzanida v. COMELEC, wh ile he assumed office, he voluntaril y vacated when there was a declaration of failure of election. He did not fully serve the term, hence, he was qualified to run for a third term. The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida, the result of the mayoralty elections was declared a nullity for the stated reason of ―failure of election‖, and, as a consequence thereof, the proclamation of Lonzanida as mayor-elect was nullified, followed by an order for him to vacate the office of the mayor. For another, Lonzanida did not fully serve the 1995-1998 mayoral term, there being an involuntary severance from office as a result of legal processes. In fine, there was an effective interruption of the continuity of service. On the other hand, the failure-of-election factor does not obtain in the present case. But more importantly, here, there was actually no interruption or break in the continuity of Francis‘ service respecting the 19982001 term. Unlike Lonzanida, Francis was never unseated during the term in question; he never ceased discharging his duties and responsibilities as mayor of San Vicente, Camarines Norte for the entire period covering the 1998-2001 term. Instead, Ong v. Alegre applies to Morales. Francis Ong was elected and assumed the duties of the mayor of San Vicente, Camarines Norte for three consecutive terms. But his proclamation as mayor in the May 1998 election was declared void. As ruled, his service for the term 1998 to 2001 is for the full term. Clearly, the three-term limit rule applies to him. There is no reason why this ruling should not also apply to Morales who is similarly situated. (Rivera III, et al. v. COMELEC, et al., May 9, 2007). Q—
Morales cited Borja v. COMELEC to apply to him. Is this case applicable? Why?
ANS: No, because with the death of Mayor Cruz, Capco assumed office as m ayor by virtue of the principle of succession, he being the vice-mayor. He was not therefore, elected even if he served the rest of the term of the mayor, hence, his assumption of the office of the mayor upon the death of the incumbent mayor may not be regarded as a term. Similarly, in Adormeo v. COMELEC, G.R. No. 147927, February 4, 2002, 376 SCRA 90, it was held that assumption of the office of mayor in a recall election for the remaining term is not the ―term‖ contemplated under Section 8, Article X of the Constitution and Section 43(b) of R.A. 7160 (the Local Government Code). There was a ―break‖ in the service of the mayor. He was a ―private citizen‖ for a time before running for mayor in the recall elections. (Rivera III, e al. v. COMELEC, et al., G.R. No. 167591, May 9,
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2007). Q — What is the effect if the certificate of candidacy of a candidate is cancelled? Explain. ANS: Any candidate who has been declared by final judgm ent to be disqualified shall not be voted f or, and the votes cast for him shall not be counted. (Secs. 6 and 7, RA 6646). Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for an office for which he did not present himself shall be considered as a stray vote but it shall not invalidate the whole ballot. (Sec. 211, Omnibus Election Code). Morales can not be considered a candidate in the May 2004 elections. Not being a candidate, the votes cast for him should not be counted and must be considered stray votes. (Rivera III, et al. v. COMELEC, G.R. No. 167591, May 9, 2007). Q — It was contended that since Morales was disqualified, the second placer should be proclaimed as the winner. Is the contention correct? Why? ANS: In Labo v. COMELEC, the Court has ruled that a second place candidate cannot be procl aimed as a substitute winner. The rule is that, the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office. As a consequence of ineligibilit y, a permanent vacancy in the contested office has occur red. This should now be filled by the vice-mayor in accordance with Sec. 44 of the Local Government Code. (Rivera III, et al. v. COMELEC, et al., G.R. No. 167591, May 9, 2007 citing Labo v. COMELEC, G.R. No. 105111, July 3, 1992, 211 SCRA 297). Q—
What are the requirements which must concur for the three-term limit to apply?
ANS: For the three-term limit to apply, the fol lowing two conditions must concur: 1) that the official concerned has been elected for three consecutive terms in the same local government post; and 2) that he has fully served three consecutive terms. (Lonzanida v. COMELEC, G.R. No. 133495, September 3, 1998, 295 SCRA 157; Ong v. Alegre, 479 SCRA 473; Adormeo v. COMELEC, 376 SCRA 90; Rivera III, et al. v. COMELEC, et al., G.R. No. 167591, May 9, 2007). Effect if there is a tie. Q—
What is the proper procedure to be resorted to in case of a tie? Explain.
ANS: To resolve the tie, ther e shall be drawing of lots. W henever it shall appear from t he canvass that two or more candidates have received an equal and highest number of votes, or in cases where two or more candidates are to be elected for the same position and two 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 five 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 have tied and shall proclaim as elected the candidates who may favored by luck, and the candidates so proclaimed shall have the right to assume office in the 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 the candidate who had been favored by luck and his proclamation on the basis thereof.
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Nothing in this section shall be construed as depriving a candidate of his right to contest the election. (Sec. 240, BP 881; Tugade v. COMELEC, et al., G.R. No. 171063, March 2, 2007). Withdrawal of certificate of candidacy. Q — Hans Roger filed his certificate of candidacy but withdrew the same. He was substituted by Joy Luna but the COMELEC denied due course to her certificate on the ground that Hans being under age, he could not have filed a valid certificate of candidacy. There was, however, no petition to deny Hans certificate of candidacy. Did the COMELEC act correctly? Why? ANS: No. The COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in declaring that Hans Ro ger, being under age, could not be consider ed to have filed a valid certificate of candidacy and, thus, could not be validly substituted by Luna. The COMELEC may not, by itself, without the proper proceedings, deny due course to or cancel a certificate of candidacy filed in due form. (Cipriano v. COMELEC, G.R. No. 158830, August 10, 2004, 436 SCRA 45). In Sanchez v. Del Rosario, the Court ruled that the question of eligibility or ineligibility of a candidate for non-age is beyond the usual and proper cognizance of the COMELEC. If Hans Roger made a material misrepresentation as to his date of birth or age in his certificate of candidacy, his eligibility may only be impugned through a verified petition to deny due course to or cancel such certificate of candidacy under Section 78 of the Election Code. In this case, there was no petition to deny due court to or cancel the certificate of candidacy of Hans Roger. The COMELEC only declared that Hans Roger did not file a valid certificate of candidacy and, thus, was not a valid candidate in the petition to deny due course to or cancel Luna‘s cer tificate of candidacy. In effect, the COMELEC, without the proper proceedings, cancelled Hans Roger‘s certificate of candidacy and declared the substitution of Luna invalid. (Luna v. COMELEC, et al., G.R. No. 165983, April 24, 2007). Pre-proclamation controversy; extent of power of COMELEC. Q—
What is the extent of the power of the COMELEC in pre-proclamation controversy? Explain.
ANS: It is a well-established rule in pre-proclamat ion cases that the Board of Canvassers is without jurisdiction to go beyond what appears on the face of the election retur n. The rationale is that a f ull reception of evidence aliunde and the meticulous examination of voluminous election documents would run counter to the summary nature of a pre-proclamation controversy. However, this rule is not without any exception. In Lee v. Commission on Elections, it was held that if there is a prima facie showing that the return is not genuine, several entries having been omitted in the questioned election return, the doctrine does not apply. The COMELEC is thus not powerless to determine if there is basis for the exclusion of the questioned returns. (G.R. No. 157004, July 4, 2003, 405 SCRA 303; Ewoc, et al. v. COMELEC, et al., G.R. No. 171882, April 3, 2007). Handwritings have only one general appearance. Q — May the COMELEC invalidate certain ballots merely on a finding that the writings have the same general appearance and pictorial effect? Explain. ANS: No. General resemblance is not enough to warrant the conclusion that tw o writings are by the same hand. (Silverio v. Clamor, 125 Phil. 917 (1967)). In order to reach the conclusion that two writings are by the same hand there must not only be present class characteristics but also individual characteristics or ‗dents and scratches‘ in sufficient quantity to exclude the theory of accidental coincidence; to reach the conclusion that writings are by different hands we may find numerous likeness in class characteristics but divergences in individual characteristics, or we may find divergences in both, but the divergence must be something more than mere superficial
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differences. (Osborn‘s Questioned Documents, p. 244; Delos Reyes v. COMELEC, et al., G.R. No. 170070, February 28, 2007). Neighborhood rule. The votes contested in this appeal are all misplaced votes, i.e., votes cast for a candidate for the wrong or inexistent office. In appreciating such votes, the COMELEC may applied the ―neighborhood rule.‖ As used by the Court, this nomenclature, loosely based on a rule of the same name devised by the House of Representatives Electoral Tribunal (HRET) in Nograles v. Dureza, HRET Case No. 34, June 16, 1989, 1 HRET Rep. 138), refers to an exception to the rule on appreciation of misplaced votes under Section 211(19) of Batas Pambansa Blg. 881 (Omnibus Election Code) which provides: Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate f or an office for which he did not present himself shall be considered as a stray vote but it shall not invalidate the whole ballot. Section 211(19) is meant to avoid confusion in the minds of the election officials as to the candidates actually voted for and to stave off any scheming design to identify the vote of the elector, thus defeating the secrecy of the ballot which is a cardinal feature of our election laws. (Amurao v. Calangi, 10 Phil. 347 (1958)). Section 211(19) also enforces Section 195 of the Omnibus Election Code which provides that in preparing the ballot, each voter must ―fill his ballot by writing in the proper place for each office the name of the individual candidate for whom he desires to vote.‖ Excepted from Section 211(19) are ballots with (1) a general misplacement of an entire series of names intended to be voted for the successive offices appearing in the ballot (Cordero v. Hon. Moscardon, 217 Phil. 392 (1984)); (2) a single (Farin v. Gonzales, 152 Phil. 598 (1973)) or double (Sarmiento v. Quemado, No. L-18027, 29 June 1962, 5 SCRA 438) misplacement of names where such names were preceded or followed by the title of the contested office or where the voter wrote after the candidate‘s name a directional symbol indicating the correct office for which the misplaced name was intended (Moya v. Del Fierro, 69 Phil. 199 (1939)); and (3) a single misplacement of a name written (a) off-center from the designated space (Mandac v. Samonte, 54 Phil. 706 (1930)), (b) slightly underneath the line for the contested office (Sarmiento v. Quemado, No. L-18027, 29 June 1962, 5 SCRA 438; Moya v. Del Fierro, 69 Phil. 199 (1939)), (c) immediately above the title for the contested office ((Villavert v. Fornier, 84 Phil. 756 (1949)), or (d) in the space for an office immediately following that for which the candidate presented himself. ((Abad v. Co, G.R. No. 167438, 25 July 2006, 496 SCRA 505 and Ferrer v. Commission on Elections, 386 Phil. 431 (2000)). In these instances, the misplaced votes are nevertheless credited to the candidates for the office for which they presented themselves because the voters‘ intent ion to so vote is clear from the face of the ballots. This is in consonance with the settled doctrine that ballots should be appreciated with liberality to give effect to the voters‘ will. (Velasco v. COMELEC, et al., G.R. No. 166931, February 22, 2007). Marked ballot. Q—
When is a ballot considered as marked? Explain.
ANS: In order for a ballot to be considered marked, in the sense necessar y to invalidate it, it m ust appear that the voter designedly place some superfluous sign or mark on the ballot which might serve to identify it thereafter. No ballot should be discarded as a marked ballot unless its character as such is unmistakable. The distinguishing mark which the law forbids to be placed on the ballot is that which the elector may have placed with the intention of facilitating the means of identifying said ballot, for the purpose of defeating the secrecy of suffrage which the law establishes. Thus, marked ballots are ballots containing distinguishing marks, the purpose of which is to identify them. (Perman v. COMELEC, et al. G.R. No. 174010, February 8, 2007, Tinga, J). Failure of election.
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Q—
When is there failure of election?
ANS: There are three instances where a f ailure of elections may be declared, thu s: (a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud or other analogous causes; (b) the election in any polling place has been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud or other analogous causes; or (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 on account of force majeure, violence, terrorism, fraud or other analogous causes. In all three instances, there is a resulting failure to elect. In the first instance, the election has not been held. In the second instance, the election has been suspended. In the third instance, the preparation and the transmission of the election returns give rise to the consequent failure to elect; the third instance is interpreted to mean that nobody emerged as a winner. (Mutilan v. COMELEC, et al., G.R. No. 171248, April 2, 2007). Note: None of the three instances is present in this case. In this case, the elections took place. In fact, private respondent was proclaimed the winner. Petitioner contests the results of the elections on the grounds of massive disenfranchisement, substitute voting, and farcical and statistically improbable results. Petitioner alleges that no actual election was conducted because the voters did not actually vote and the ballots were filled up by non-registered voters. Q—
May an interlocutory order of a COMELEC Division be the subject of certiorari to the SC? Explain.
ANS: As a rule, No. The exception is in an unusual case where the petition for certiorari questioning the interlocutory order of a COMELEC Division was pending before the SC, the main case which was meanwhile decided by the COMELEC En Banc was likewise elevated to the Court. Thus, there was a situation where the petition for certiorari questioning the interlocutory orders of the COMELEC Division and the petition for certiorari and prohibition assailing the Resolution of the COMELEC En Banc on the main case were consolidated. The issues raised in the petition for certiorari were also raised in the main case and therefore there was actually no need to resolve the petition assailing the interlocutory orders. (Rosal v. COMELEC, G.R. No. 168253 and 172741, March 16, 2007; Soriano, Jr., et al. v. COMELEC, et al., G.R. No. 164496-505, April 2, 2007). Note: The general rule is that a decision or an order of a COMELEC Division cannot be elevated directly to the SupremeCourt through a special civil action for certiorari. Furthermore, a motion to reconsider a decision, resolution, order, or ruling of a COMELEC Division shall be elevated to the COMELEC En Banc. However, a motion to reconsider an interlocutory order of a COMELEC Division shall be resolved by the division which issued the interlocutory order, except when all the members of the division decide to refer the matter to the COMELEC En Banc. Thus, in general, interlocutory orders of a COMELEC Division are not appealable, nor can they be proper subject of a petition for certiorari. To rule otherwise would not only delay the disposition of cases but would also unnecessarily clog the Court docket and unduly burden the Court. This does not mean that the aggrieved party is without recourse if a COMELEC Division denies the motion for reconsideration. The aggrieved party can still assign as error the interlocutory order if in the course of the proceedings he decides to appeal the main case to the COMELEC En Banc. The exception enunciated in Kho and Repol is when the interlocutory order of a COMELEC Division is a patent nullity because of absence of
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jurisdiction to issue the inte rlocutory order, as where a COM ELEC Division issued a temporary restraini ng order without a time limit, which is the Repol case, or where a COMELEC Division admitted an answer with counter-protest which was filed beyond the reglementary period, which is the Kho case. The Court has already ruled in Reyes v. RTC of Oriental Mindoro, that ―it is the decision, order or ruling of the COMELEC En Banc that, in accordance with Section 7, Art. IX-A of the Constitution, may be brought to the Supreme Court on certiorari.‖ The exception provided in Kho and Repol is unavailing in this case because unlike in Kho and Repol, the assailed interlocutory orders of the COMELEC First Division in this case are not a patent nullity. The assailed orders in this case involve the interpretation of the COMELEC Rules of Procedure. Neither will the Rosal case apply because in that case the petition for certiorari questioning the interlocutory orders of the COMELEC Second Division and the petition for certiorari and prohibition assailing the Resolution of the COMELEC En Banc on the main case were already consolidated. The Court also notes that the COMELEC First Division has already issued an Order dated 31 May 2005 dismissing the protests and counter-protests in EPC Nos. 2004-36, 2004-37, 2004-38, 2004-39, 2004-40, 2004-41, 2004-42, 2004-43, 2004-44, and 2004-45 for failure of the protestants and protestees to pay the required cash deposits. Thus, the Court have this peculiar situation where the interlocutory order of the COMELEC First Division is pending before the Court but the main case has already been dismissed by the COMELEC First Division. This situation is precisely what the Court are trying to avoid by insisting on strict compliance of the rule that an interlocutory order cannot by itself be the subject of an appeal or a petition for certiorari. Misrepresentation in a certificate of candidacy; effect. Q — When is misrepresentation in a certificate of candidacy material? Explain. ANS: A misrepresentation in a certif icate of candidacy is material when it refers to a qualificati on for elective office and affects the candidate‘s eligibility. Second, when a candidate commits a material misrepresentation, he or she may be proceeded against through a petition to deny due course to or cancel a certificate of candidacy under Section 78, or through criminal prosecution under Section 262 for violation of Section 74. Third, a misrepresentation of a non-material fact, or a non-material misrepresentation, is not a ground to deny due course to or cancel a certificate of candidacy under Section 78. In other words, for a candidate‘s certificate of candidacy to be denied due course or cancelled by the COMELEC, the fact misrepresented must pertain to a qualification for the office sought by the candidate. (Nelson T. Lluz, et al. v. COMELEC, et al., G.R. No. 172840, June 7, 2007). Q — If a candidate misrepresents his profession, is he disqualified? Explain. ANS: No. No elective office, not even the office of the President of the Republic of the Phi lippines, requires a certain profession or occupation as a qualification. Profession or occupation not being a qualification for elective office, misrepresentation of such does not constitute a material misrepresentation. Certainly, in a situation where a candidate misrepresents his or her profession or occupation in the certificate of candidacy, the candidate may not be disqualified from running for office under Section 78 as his or her certificate of candidacy cannot be denied due course or canceled on such ground. (Nelson T. Lluz, et al. v. COMELEC, et al., G.R. No. 172840, June 7, 2007). BAR EXAM QUESTIONS 2012 (NO SUGGESTED ANSWERS) Abdul ran and won in the May 2001, 2 004 and 2007 elections for Vice- Governor of Tawi-Tawi. Af ter being proclaimed Vice-Governor in the 2004 elections, his opponent, Khalil, filed an election protest before the Commission on Election. Ruling with finalty on the protest, the COMELEC declared Khalil as the duly elected Vice-Governor though the decision was promulgated only in 2007, when Abdul had fully served his 2004-2007 term and was in fact already on his 2007-2010 term as Vice Governor.
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a.
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Abdul now consults you if the can still run for Vice-Governor of Tawi-Tawi in the forthcoming May 2010 election on the premise that he could not be considered as having served as Vice-Governor from 2004-2007 because he was not duly elected to the post, as he assumed office merely as a presumptive winner and that presumption was later overturned when COMELEC decided with finality that had lost in the May 2004 elections. What will be your advice? (3%) Abdul also consults you whether his political party can validly nominate his wife as subtitute candidate for Vice-Mayor of Tawi-Tawi in May 2010 elections in case the COMELEC disqualifies him and denies due course to or cancels his certificate of candidacy in view of a false material representation therein.What will be your advice? (3%) -X-
The 1st Legislative District of South Cotabato is composed of General Santos and three municipalities including Polomolok. During the canvassing proceedings before the District Board of Canvassers in connection with the 2007 congressional election, candidate MP objected to the certificate pf canvass for Polomolok on the ground that it was obviously manufactured, submitting as evidence the affidavit of a mayoralty candidate of Polomolok. The certificate of canvass for General Santos was likewise objected to by MP on the basis of the confirmed report of the local NAMFREL that 10 election returns from nonexistent precincts were included in the certificate. MP moved that the certificate of canvass for General Santos be corrected to exclude the the result from the non-existent precincts. The District Board of Canvassers denied both objections and ruled to include the certificate of canvass. May MP appeal the rulings to the COMELEC? Explain. (6%) - XI On August 8, 2008 the Governor of Bohol died and Vice-Governor Cesar succeeded him by operation of law. Accordingly, Benito, the highest ranking member of the Sangguniang Panlalawigan was elevated to the position of Vice-Governor. By the elevation of Benito to the office of Vice-Governor, a vacancy in the Sangguniang Panlalawigan was created. How should the vacancy be filed? (3%) - XII The Mayor of San Jose City appointed his wife, Amelia, as City Treasurer from among tree (3) employees pf the city considered for the said position. Prior to said promotion, Amelia had been an Assistant City Treasurer for ten (10) years, that is, even before she married the City Mayor. Should the Civil Service Commission approve the promotional appointment of Amelia? Why or why not? (6%)
