XI. Election Election Protest Protest and Quo Warranto
209. Is it still possible possible to contest contest the election even even after the the proclamation? proclamation? Yes. There are two (2) remedies available to contest the election after proclamation –election protest and quo warranto.
210. What is an election election protest? protest? 259
It is a procedure to contest the e lection or the return of an elective elect ive official.
211. Who can file file an election election protest? protest? Any losing candidate who has duly filed a certificate of candidacy and has been votedfor the same office o ffice can 260 file a sworn petition for election protest. The losing candidate who is filing an election protest against an elective regional,provincial or city official must have received the second or third highest number ofvotes, or, in a multi-slot position, was among the next four candidates following thelast ranked winner proclaimed, as re flected in the official results of the 261 electioncontained in the SOV.
212. When should should the petition petition for election election protest protest be filed? 262
Within ten (10) days after the proclamation of the resu lts of the election. However,the pendency of a pre proclamation controversy involving the validity validity of the t he proclamation shall suspend suspend the running of o f the period to 263 file an election protest.
213. Is there there a filing fee for for an election election protest? protest? Yes. Protestants or counter - protestants protestants are required to pay a filing filing fee of Php 10,000.If there are claims for damages and attorney’s fees, additional filing fees shall be requ ired in accordance with the schedule p rovided 264 for in Rule 141 of o f the Rules of Court.
214. Aside from from the filing filing fees, are are there any other other filing costs costs that the protesta protestant nt must bear? bear? Yes. Cash deposit is required when the prot est requires (i) recount of ballots or retabulation of election returns, or (ii) bringing to the COMELEC of copies cop ies of otherelection documents, printed or electronic, as well as t he machines or devices to whichelectronic election do cuments are stored or may be pro cessed.The amount shall be: a. One thousand Five Hundred Hundred Pesos (Php 1,500.00) for each precinct involved involved inthe protest or counter - protest; provided that in no case shall the deposit be less than Php 25,000, to be paid upon the filing of the election protest/counterprotest;
b. If the amount to be deposited does not exceed Php 100,000, t he same shall bepaid in full within ten (10) days after the filing of the protest; and c. If the deposit exceeds Php 100,000, a cash deposit in the amount of Php100,000 shall be made within ten (10) days after the filing of the protest.The balance shall be paid in such installments as may be required by the COMELECwith at least five (5) days advance not ice to the party required to make the deposit.
KEY POINT FOR PROTESTANT:
Failure to make the cash deposits required within the required time limit shall result in the automatic dismissal of the protest or the 265 counter-protest.
Position
Jurisdiction
Appeal
Applicable Procedure
President and VicePresident
Supreme Court en 266 banc
-
2005 Rules of the Presidential Electoral Tribunal
Senators
Senate Electoral 267 Tribunal
-
Revised Rules of the Senate Electoral Tribunal dated 12 November 2003
Members of the House of Representatives
House of Representatives Electoral Tribunal 268 (HRET)
-
1998 Rules of the House o f Representatives Electoral Tribunal, as amended.
COMELEC
-
COMELEC Resolution 8804 [22 March 2010] and COMELEC Rules of Procedure dated 15 February 1993
proper Regional Trial 270 Court (RTC)
COMELEC, whose decision will be final, executory and non271 appealable
Regional, provincial and city officials
Municipal officials
215. What are the jurisdictional facts that must be alleged in an election protest? Before the proper court or tribunal may exercise special jurisdiction in election protests, the following jurisdictional facts must be alleged in the election protest: a. That the protestant was a candidate who has duly filed a certificate of candidacy and was voted upon in the election; b. That the protestee has been proclaimed in the said election; and 272
c. That the petition was filed within ten (10 ) days after the proclamation.
216. Is there any protective measure that can be employed to ensure the integrity of the ballots pending an election protest?
Yes. Where the allegations in a protest so warrant, and simultaneously with the issuance of summons, the COMELEC shall order the municipal treasurer and e lection officer, and the responsible personnel and custodian to take immediate steps or measures to safeguard the integrity of all the ballot boxes, lists of votes with voting records, books of voters and ot her documents or paraphernalia used in the elect ion, as well as data storage devices containing electronic data evidencing the conduct and the results of elections in the contested 273 precincts.
217. When will the ballot boxes and election documents be brought to the COMELEC? Within 48 hours from receipt of the answer with co unter - protest, if any, and whenever the allegations in a protest or counter - protest so warrant, the COMELEC shall order the ballot boxes with their keys, lists of voters with voting records, books of voters, the electronic data storage devices, and other documents, paraphernalia, or equipment 274 relative to the precincts involved in the protest or counter - protest, to be brought before it. The recount of ballots shall commence on the date specified in the preliminary con ference order.275 218. Who can file a petition for quo warranto? 276
Any voter can file a sworn pet ition for quo warranto.
219. When can a pe tition for quo warranto be filed? 277
Within ten (10) days after the proclamation of the resu lts of the election.
220. To whom should the quo waranto be filed? The jurisdiction to hear quo warranto proceedings is vested in different bodies: Position
Jurisdiction
President and Vice-President
Supreme Court en 278 banc
Senators Members of the House of Representatives
Appeal Applicable Procedure
-
2005 Rules of the Presidential Electoral Tribunal
-
Revised Rules of the Senate Electoral Tribunal dated 12 November 2003
-
1998 Rules of the House of Representatives Electoral Tribunal, as amended
-
COMELEC Resolution No. 8804 [22 March 2010] and COMELEC Rules of Procedure dated 15 February 1993
279
SET
-
280
HRET
281
Regional, COMELEC provincial and city officials
221. Can the courts execute their judgments pending appeal? Yes. Based on the suppletory applicability of the Rules of Court, the court may, in its discretion, order execution to issue even before the expiration of the time to appeal, upon good reasons to be stated in a special order.
The following constitute “good reasons,” and a combination of two or more of them will suffice to grant execution pending appeal: (1) t he public interest involved or the will of the e lectorate; (2) the shortness of the remaining portion of the term of the co ntested office; and (3) the length of time that the election contest has 282 been pending.
222. Is it possible to suspend or toll the running of the 10 day period for the filing of an election protest or quo warranto? The filing of a petition to annul or to suspend the proclamation of any candidate with the COMELEC shall to ll 283 or suspend the running of the 10-day period, respectively.
223. Is there a preference granted to election protests and quo warranto proceedings? YES. The courts, in their respective cases, sha ll give preference to election contests over all other cases, except those of habeas corpus, and shall without delay, hear and, w ithin thirty (30) days from the date of their 284 submission for decision, but in every case within six (6) months after filing, decide the same.
224. What are the differences between and election protest and a quo warranto proceeding? ELECTION CONTEST
QUO WARRANTO
Purpose
disqualify an elected official on the ground Annul the election of an elected candidate on the of ineligibility due to age, citizenship or the grounds of frauds and irregularities in the conduct COMELEC of acts of election and the counting and enumerated under Section 68 of B.P. Blg. canvassing of votes 881
Issue
Who obtained the highest number of legal votes
Qualification or the lack of it, o f the winning candidate,
Who Files
Candidate who has duly filed a certificate of candidacy and has been voted for the same office
Any registered voter
Effect on the Protestant may assume office after protestee is unseated Protestee
Protestee may be ousted, t he protestant will not be seated
225. In the case of an election protest, what will happen if the protestant dies after the filing of the petition? With the death of the protestant, there is no longer a protestant to speak of. A claim to a public office is personal to the protestant and, therefore, cannot pass on to his widow or other heirs. In which case, the petition will be 285 dismissed.
226. Is the simultaneous prosecution of a pre proclamation controversy and an election protest allowed?
Yes. There is no law or rule prohibiting the simultaneous prosecution or adjudication of pre- proclamation controversies and elections protests. Simultaneous prosecution scenario may be a llowed because pre proclamation controversies and election protests differ in terms of the issues involved and the evidence admissible in each case and the objective each seeks to achieve. Moreover, under certain circumstances, the Supreme Court even encourages the reinforcement of a pre- proclamation suit with an election protest. When it becomes apparent that a pre- proclamation suit is inadequate, that election irregularities may be fully ventilated 286 and properly adjudicated by the competent tribunal.
227. How about the quo warranto and election protest? May they be simultaneously heard? Yes. The proper tribunal/court’s jurisdiction over a quo warranto p roceeding and a protest proper can be 287 exercised jointly and in the same pro ceeding.
228. Who has the burden of proof in an election protest? 288
It is protestant who had the burden of proof to show that the results of election are false and erroneous.
229. What must be proven in an election protest and how must it be proved? The issue in an election protest is who obtained the highest number of legal vot es. Then, the protestant must show that he actually obtained the highest number of valid votes. To prove this, one may: a) show miscounting and/or misappreciation of votes in a process called revision of ballots, wherein the ballot boxes are opened and their contents, especially the ballots, re-counted and reexamined; and b) proving that certain votes of a protestee are invalid, because, among other things, the ballots 289 were cast under duress or that the ballots were cast by persons other than t he registered voters.
230. How should the evidence be presented before the COMELEC? The reception of evidence on all matters of issues raised in the protest and co unter protest shall be presented and offered in a hearing upon completion of (a) the recount of ballots, or re-tabulation of election documents, or (b) the technical examination, if warranted. Reception of evidence shall be made in accordance with the following order of hearing: a. The protestant shall present evidence in support of the protest; b. The protestee shall then adduce evidence in support of the defense, counterclaim or counter - protest, if any; c. The parties may then respect ively offer rebutting evidence only, unless the COMELEC for good reasons, in the furtherance of justice, permits them to o ffer evidence upon their original case, and 290
d. No sur -rebuttal evidence shall be allowed.
231. What is the best evidence by which the protestant can prove that the results of the election were erroneous? In an election contest where what is involved is the correctness of the number o f votes of each candidate, the best and most conclusive evidence are the ballots themselves. But where the ballots cannot be produced, were 291 tampered or are not available, the ER would be the best evidence. While the ballots are the best evidence of the manner in which the electors have voted, they are the best evidence only when their integrity can be satisfactorily established. One who relies, therefore, upon overcoming the prima facie correctness of the official canvass by a resort to the ballots must first show that the ballots are intact and genuine. Once this is shown, the burden of proof shifts to the protestee of establishing that the ballots have in fact been tampered with, or that they have been exposed under such circumstances that a 292 violation of them might have taken p lace.
232. How will electronic evidence be treated? An electronic document or data shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data 293 accurately.
233. How will electronic evidence be authenticated? The person seeking to introduce an electronic document in an election protest has the burden of proving its 294 authenticity. Manner of proving authenticity of electronic document or data presented as evidence:
a. by evidence that it had been digitally signed by the person purported to have signed the same; b. by evidence that other appropriate security procedures or devices for authentication of electronic docu ments were applied to the document; or c. by other evidence showing its integrity and reliability to the satisfaction of the judge.
234. Can the petitioner claim damages in an election protest or quo warranto proceeding? 295
Yes. The petitioner may be granted actual or compensatory damages. The propriety of the award of damages in favor of the protestant as against the protestee hinges on whether or not, protestee committed an actionable wrong which could serve as basis for the award. The mere fact that a protestant (or a plaintiff, for that matter) wins in an adversarial proceeding does not automatically result in an award for da mages against the protestee (or defendant). Conversely, if the protestant had lost in the protest, it also does not automatically result in damages in favor of the protestee, otherwise, it will discourage parties from seeking redress of grievances. Therefore, t he prevailing party to be entitled to damages involves an independent determination based on the facts and the law on 296 damages. 235. Are there any legal presumptions in appreciating the ballots and ER as evidence? Yes. In the absence of evidence to the contrary, it is presumed that every election has been co nducted fairly, honestly and regularly; and the election inspectors, who performed their duties under o ath, are presumed to have discharged them faithfully, to have appreciated the ballots correctly; and to have counted the votes accurately. Therefore, the tally boards and ER are prima facie evidence of the true results of election in a precinct and the party who, in an election contest, impugns the election in any precinct, has the burden of proving that the tally 297 boards and ER are inaccurate or false.
The following presumptions are considered as facts, unless contradicted or overcome by otherevidence:
a) On the election procedure: •
The election of candidates was held on the date and time set and in the polling place det ermined by the COMELEC;
•
The BEIs were duly constituted and organized;
•
Political parties and candidates were duly represented by poll watchers;
•
Poll watchers were able to perform their function; and
•
The Minutes of Voting and Count ing contains all the incidents that transpired before the Board of Election Inspectors.
b.) On election paraphernalia: •
•
•
Ballots and election returns that hear the security markings and features prescribed by the COMELEC are genuine; The data and information supplied by BEI members in the accountable forms are true and correct; and The allocation, packing and d istribution of election documents or paraphernalia were properly and timely done.
c.) On appreciation of ballots: •
A ballot with appropriate security markings is valid;
•
The ballot reflects the intent of the voter;
•
The ballot is properly accomplished; A voter personally prepared one ballot, except in the case o f assistors; and
•
The exercise of one’s right to vote was voluntary and free.
•
259 COMELEC Resolution No. 8804 (22 March 2010), Part III, Rule 6, Section 2. 260 Batas Pambansa Blg. 881 (1985), Section 250, 251 and 252. 261 COMELEC Resolution No. 8804 (22 March 2010), Part III, Rule 6, Section 2. 262 Batas Pambansa Blg. 881 (1985), Section 250, 251 and 252. 263 COMELEC Resolution No. 8804 (22 March 2010), Part III, Rule 6, Section 6. 264 COMELEC Resolution No. 8804 (22 March 2010), Part III, Rule 11, Section 1. 265 COMELEC Resolution No. 8804 (22 March 2010), Part III, Rule 11, Section 2. 266 The 1987 Philippine Constitution, Article VII, Section 4. 267 The 1987 Philippine Constitution, Article VI, Section 17. 268 The 1987 Philippine Constitution, Article VI, Section 17. 269 The 1987 Philippine Constitution, Article IX(C), Section 2; Bata s Pambansa Blg. 881 (1985), Section 249 and 250. 270 Batas Pambansa Blg. 881 (2007), Section 251. 271 The 1987 Philippine Constitution, Article VI, Section 17; Article VII, Section 4; a nd Article IX(C), Section 2; Re public Act No. 7166 (1991), Section 22. 272 San Juan v. Cerilles, HRET Case N o. 04 -007, 17 February 2005. 273 COMELEC Resolution No. 8804 (22 March 2010), Part III, Rule 12, Section 1. 274 COMELEC Resolution No. 8804 (22 March 2010), Part III, Rule 12, Section 2. 275 COMELEC Resolution No. 8804 (22 March 2010), Part III, Rule 15, Section 1. 276 Batas Pambansa Blg. 881 (1985), Section 253. 277 Batas Pambansa Blg. 881 (1985), Section 253. 278 The 1987 Philippine Constitution, Article VII, Section 4. 279 The 1987 Philippine Constitution, Article VI, Section 17. 280 The 1987 Philippine Constitution, Article VI, Section 17. >281 The 1987 Philippine Constitution, Article IX(C), Section 2; Bata s Pambansa Blg. 881 (1985), Section 253. 282 Ramas et. al. v. COMELEC et. al ., GR No. 130831 , 10 February 1998.
283 Batas Pambansa Blg. 881 (1985), Section 248; See also T an and Burahan v. COMELEC, GR Nos. 166143 -47, 20 November 2006. 284 Batas Pambansa Blg. 881 (1985), Section 258. 285 Abadilla v. Aban, HRET Case No. 95 -005, 11 September 1996; See al so Poe v. Macapagal -Arroyo, P.E.T. Case No. 002, 29 March 2005. 286 Tan and Burahan v. COMELEC, G.R. Nos. 166143 -47, 20 November 2006. 287 Loyola v. Dragon, HRET Case No. 92 -026, 31 January 1994. 288 Batuhan v. Cuenco, HRET Case No. 01 -032,22 January 2004. 289 Loyola v. Dragon, HRET Case No. 92 -026, 31 January 1994. 290 COMELEC Resolution No. 8804 (22 March 2010), Part III, Rule 18, Section 1. 291 Lerias v. HRET, GR No. 97105, 15 October 1991. 292 Rosal v. COMELEC, GR No. 168253 & 172741, 16 March 2007. 293 COMELEC Resolution No. 8804 (22 March 2010), Part IV, Rule 21, Section 1. 294 COMELEC Resolution No. 8804 (22 March 2010), Part IV, Rule 22, Section 1 and Section 2. 295 Batas Pambansa Blg. 881 (1985), Section 259. 296 Randa v. Libardos, EAC No. 210 -94, 24 August 1995; See also Malaluan v. COMELEC, GR No. 120193, 6 March 1996. 297 Batuhan v. Cuenco, HRET Case No. 01 -032, 22 January 2004.
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