Election Laws Updated

ELECTION LAWS Arranged by Sasha Go | Updated
SOURCES AND CONTRIBUTORS: ATTY. VALENCIAS NOTES, JO PUZONS NOTES, JAZZIE SARONA; UP LAW 2001 ELECTION NOTES

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PHILIPPINE ELECTION LAWS
Based on the Lectures and Outline of Atty. Jocelyn Valencia
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INTRODUCTION/ GENERAL PROVISIONS

SOURCE OF POLITICAL POWER/ UNDERLIYING
PHILISOPHY:

Article II Sec. 1 of the Constitution: The Philippines is
a republican state. Sovereignty resides in the people
and all government authority emanates from them.

LAWS GOVERNING ELECTIONS

A. CONSTITUTIONAL PROVISIONS

Article II, Section 1: Declaration of Principles

o Section 1 (foundation of the democratic process),
o Section 13 (vital role of the youth in nation
building)
o Section 23 (state encourage non-governmental,
community-based or sectoral organization (party-
list),
o Section 26 prohibition on political dynasties as may
be defined by law)

Article III Bill of Rights

o Section 4 (freedom of speech and of expression);
o Section 5 (No religious test shall be required for the
exercise of civil or political rights);
o Section 8 (right to form associations for those
employed in public and private sectors);
o Section 16 (speedy disposition of cases before all
judicial and QJ or administrative bodies)

Article IV on Citizenship (qualification of candidates
and voters);

Article V, Suffrage.

Article VI Legislative Department (composition of
the members of the HR, qualifications, term of office,
party list, vacancy, composition of the HRET and SET;

Article VII Executive Department (qualifications,
term of office, limitations of term, manner of canvass and
proclamation, composition of the PET, vacancy;

Article IX-A (common provisions for constitutional
offices) &

Article IX- C: COMELEC (composition, powers and
functions of the COMELEC, the body created by the
constitution to conduct any electoral exercise as well as
uphold and safeguard the integrity and sanctity of the
ballot in order to achieve its objective of holding an
honest, orderly peaceful free and credible elections);

Article X General provision on Local Government
(requirement for alteration of political boundaries);

Article XVI (General provisions) prohibition against
partisan political activities or prohibition on the
appointment or designation of a member of the armed
forces in the active service to a civilian position in the
government;

Article XVII amendments or revisions to the
constitution

B. OMNIBUS ELECTION CODE BP 881 basic law on
elections.

C. AMENDMENTS UNDER THE 1987 CONSTITUTION:

RA 6646 (Electoral Reform Law of 1987). Sec.
2 thereof re-enacted the OEC when it provided that
the first local elections under the new Constitution
and all subsequent elections and plebiscites shall be
governed by this Act and by the provisions of the BP
881, otherwise known as the OEC of the Philippines,
and other election laws not inconsistent with this
Act;

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The order of topics in the outline was modified minimally

RA 7166 (An Act which provided for the synchronization
of the National and Local Elections of 1992;

RA 7904 (An Act Governing the conduct of the 1995
Senatorial and Local Elections;

RA 7941 (Nov. 26, 1991) An act providing for the election
of party-list representatives through the party-list system;

RA 8189 (June 11, 1996 Voters Registration Act of 1996
providing for the General Registration of Voters &
Adopting a System of Continuing Registration;

RA 8295 (June 6, 1997 Proclamation of Lone Candidate
in Special Elections);

RA 8436, An Act Authorizing the COMELEC to Use an
Automated System in the May 11, 1998 National and local
Elections and in subsequent National and Local Electoral
Exercises. (Sec. 11, impliedly repealed Sec. 67 of BP 881
being inconsistent with Sec. 11, which provides that
elective officials running for any office other than the one
he/she is holding in a permanent capacity, except for
President and VP, shall be deemed resigned only upon the
start of the campaign period corresponding to the position
for which he/she is running);

RA 8524 (Feb. 14, 1998 An Act Changing the Term of
Office of Brgy. Officials and Members of the SK from 3
years to 5 years amending Sec. 43 (c) of RA 7160, the Local
Government Code of 1991;

RA 9006 Feb. 12, 2001, An Act to Enhance the Holding of
FRECRE through Fair Election Practices. (Sec. 14 of RA
9006 expressly repealed Sec. 67 of BP 881 and rendered
effective the provision of Sec. 11 of RA 8436 insofar as the
applicability of Sec. 11 on the matter is concerned).

RA 9164 (March 19, 2002), An Act Providing for
Synchronized Barangay and SK. Elections, amending RA
7160, as amended.

RA 9189, An Act Providing for a System of Overseas
Absentee Voting by Qualified Citizens of the Philippines
Abroad.

RA 9225 (August 29, 2003), An Act Making the
Citizenship of Philippine Citizens who Acquire Foreign
Citizenship Permanent, Amending For the Purposes C.A.
No. 63, as amended

RA 9244 (February 19, 2004), An Act Eliminating the
Preparatory Recall Assembly as a Mode of Instituting
Recall of elective Government Officials.

The basic law on elections and these amendments are designed to
improve the law and to protect the integrity of the elections
in order to achieve the objective of holding an:
HONEST,
ORDERLY
PEACEFUL
FREE AND
CREDIBLE elections (HOPE-FRECRE).

D. LOCAL GOVERNMENT CODE (RA 7160)

RA 7160 The Local Government Code of 1991 for
1. Recall of local elective officials;
2. Qualifications and Disqualifications of elections of local
elective officials;
3. Local initiative & referendum

Applicability

Shall govern all elections of public officers and, to the extent
appropriate, all referenda and plebiscite. (Section 2 of the
Omnibus Election Code)
Further strengthened by Sec 2(1) of Art. IX-C, the Constitution
empowers the COMELEC to enforce and administer all laws
and regulations relative to the conduct of an election, plebiscite,
initiative, referendum and recall.
The COMELEC is mandated to apply the OEC and all other
statutes on the subject governing election laws. (Section 36 of
RA 7166).


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MODES OF POPULAR INTERVENTION

I. ELECTIONS/ SUFFRAGE

(i) ELECTIONS DEFINED

Carlos v. Angeles 346 SCRA 571 (2000)

+ ELECTIONS is the choice or selection of
candidates to public office by popular vote
through the use of the ballot, and the elected
officials of which are determined through the
will of the electorate.

In the context of the Constitution, the term election may
refer to the following:
(1) Conduct of the polls,
(2) Listing of voters,
(3) Holding of the electoral campaign, and
(4) The casting and counting of votes.

The winner is the candidate who has obtained a
majority or plurality of valid votes in the election.

Romualdez v. RTC 226 SCRA 408 - The right to vote is
a most precious political right, as well as a bounden duty
of every citizen, enabling and requiring him/her to
participate in the process of government so as to ensure
that the government can truly be said to derive its power
solely from the consent of the governed.

(ii) ESSENCE OF ELECTIONS

Sunga v. COMELEC 288 SCRA 76 - Plurality of votes is
the essence of an election or majority rule. A public office
is filled only by those who receive the highest number of
votes cast in the election for that office which is a basic
tenet in all republican form of government.

FACTS: Trinidad and Sunga, were candidates in the
mayoralty race in the Province of Cagayan. Trinidad won
while Sunga garnered the second place and when Trinidad
was subsequently disqualified, Sunga claims that he
should be proclaimed.

ISSUE: Whether Sunga should be declared winner.

HELD: The SC ruled that it would be extremely
repugnant to the basic concept of the constitutionally
guaranteed right to suffrage if a candidate who has not
acquired the majority or plurality of votes be proclaimed
winner and imposed as the representative of a
constituency, the majority of whom have positively
declared through their ballots that they do not
choose him.

Rulloda v. COMELEC, G.R. No. 154198, January 20,
2003 the winner is the candidate who has
obtained a majority or plurality of valid votes cast
in the election. For, in all republican forms of
government, the basic idea is that no one can be declared
elected and no measure can be declared carried unless he
or it receives a majority or plurality of the legal votes cast
in the election.

(iii) BASIS OF PLURAILITY OF VOTES

Mitmug v. COMELEC 230 SCRA - The majority or
plurality of votes is determined by the number of
registered VOTERS WHO ACTUALLY CAST THEIR
VOTES OR THOSE WHO ACTUALLY VOTED AND NOT
BASED ON THE NUMBER OF REGISTERED VOTERS.
There is no provision in our election laws which requires
that a majority of the registered voters must cast their
votes. All the law requires is that the winning candidates
must be elected by plurality of votes, regardless of the
actual number of ballots cast. Therefore, even if less
than 25% of the electorate in the questioned
precincts cast their votes, the votes has to be
respected.

(iv) CONSTRUCTION OF ELECTION LAWS

Election contests are REASONABLY AND
LIBERALLY CONSTRUED as it is imbued with
public interest to give way to the will of the electorate
and ascertain by all means the real candidate elected
by the people. - Sec. 3 Rule 1, COMELEC Rules of
Procedure
Reason: to promote the effective and efficient
implementation of the objectives of ensuring the holding of
an honest, orderly, peaceful, free and credible elections
and to achieve a just, expeditious and inexpensive
determination and disposition of every action and
proceeding brought before the COMELEC.

Margarito Suliguin vs. COMELEC, March 23, 2006, GR
No. 166046 citing the case of Bince v. COMELEC, 242 SCRA
436, the SC held political laws must be so construed so as
to give life and spirit to the popular mandate freely
expressed through the ballot. Technicalities and
procedural niceties in election cases should not be made to
stand in the way of the true will of the electorate.

Bince v. COMELEC 242 SCRA 273 - Laws governing
election contests must be liberally construed to the end that the
will of the people in the choice of public officials may not be
defeated by mere technical objections.

Benito vs COMELEC 235 SCRA 436 - the proclamation of
Benito as mayor-elect by the Municipal Board of Canvassers
was not a valid proclamation. The fact that the candidate who
obtained the highest number of votes dies, or is later declared to
be disqualified or not eligible for the office to which he was
elected does not necessarily entitle the candidate who
obtained the second highest number of votes to be
declared the winner of the elective office. Election
contests involve public interest, and technicalities and
procedural barriers should not be allowed to stand if they
constitute an obstacle to the determination of the true will of the
electorate in the choice of their elective officials. Laws
governing election contests must be liberally construed
to the end that the will of the people in the choice of
public officials may not be defeated by mere technical
objections. Technicalities of the legal rules enunciated in the
election laws should not frustrate the determination of the
popular will.

In applying the rules of statutory construction however,
the provisions of election laws are divided into THREE
PARTS NAMELY;

1) Those which refers to the conduct of elections
required to be observed by election officials;
2) Those provisions which candidates for public
elective office are required to do and comply with;
3) Those provisions which cover procedural rules
designed to ascertain, in case of dispute, the actual
winner in the elections.

1) Those which refers to the conduct of elections required to
be observed by election officials;

The rules and regulations for the conduct of elections are:
Mandatory before the elections, but when it is
Directory only after the elections most particularly if
innocent voters will be disenfranchised by the negligence
or omission of the elections officers (who will be liable
either criminally or administratively).

Saya-Ange v. COMELEC, G.R. No. 155087, November
28, 2003 - The rules and regulations for the conduct of
elections are mandatory before the election, but when it is
sought to enforce them after the election, they are to be
directory only, if that is possible especially where, if they are
held to be mandatory, innocent voters will be deprived of their
votes without any fault on their part. When the voters have
honestly cast their ballots, the same should not be nullified
because the officers appointed under the law to direct the
election and guard the purity of the ballot have not done their
duty.

Fernandez vs COMELEC GR No. 9135 April 3, 1990
While Section 24 of Republic Act No. 7166, otherwise known as
An Act Providing For Synchronized National and Local
Elections and For Electoral Reforms, requires the BEI
chairman to affix his signature at the back of the ballot, the
mere failure to do so does not invalidate the same
although it may constitute an election offense
imputable to said BEI chairman.

Nowhere in said provision does it state that the votes contained
therein shall be nullified. It is a well-settled rule that the failure of
the BEI chairman or any of the members of the board to comply with
their mandated administrative responsibility, i.e., signing,
authenticating and thumbmarking of ballots, should not penalize the
voter with disenfranchisement, thereby frustrating the will of the
people. (as cited in Punzalan vs. COMELEC [G.R. No. 126669. April
27, 1998])

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Punzalan v. COMELEC April 27, 1998 - Section 15 of
RA 6646 as amended by Sec. 24 of RA 7166, requires, in
addition to the preliminary acts for the conduct of vote as
provided under Sec. 191 of the OEC, the Chairman, to affix
their signatures at the back of each and every ballot to be
used during the voting. The failure on the part of these
election officials to do their duties will not invalidate the
ballot for to rule otherwise would disenfranchise the
voters and place a premium on the official ineptness and
make it possible for a small group of functionaries, by
their negligence or their deliberate inaction to frustrate
the will of the electorate. It may however constitute as an
election offense imputable to the said BEI Chairman.

Bautista vs Castro 206 SCRA 305 - The absence of
the signature of the Chairman of the Board of Election
Tellers in the ballot given to a voter as required by law and
the rules as proof of the authenticity of said ballot is fatal.
This requirement is mandatory for the validity of the said
ballot.

Marcelino C. Libanan v. HRET a ballot without the
BEI chairmans signature at the back is valid and not
spurious, provided that it bears any one o these other
authenticating marks, to wit
a. the COMELEC watermark; and
b. in those cases where the COMELEC
watermarks are blurred or not readily
apparent, the presence of red and blue
fibers in the ballots.

2) Those provisions which candidates for public
elective office are required to do and comply
with;
The provision of law which candidates for
office are required to comply with are
generally regarded as mandatory and failure
to comply would be fatal to the candidate.
Example, rules prescribing the qualification of
candidates (such as age, citizenship or residency
requirements cannot be cured by vox populi vox dei),
deadline or filing of certificate of candidacy or
limitation of period within which to file an election
contest.

3) Those provisions which covers procedural rules
designed to ascertain, in case of dispute, the
actual winner in the elections.

Maruhom v. COMELEC 331 SCRA 473, it was ruled
that laws and statutes governing election contests
especially the appreciation of ballots must be liberally
construed and that in applying election laws, it
would be far better to err in favor of the popular
sovereignty than to be right in complex but little
understood legalisms.

Pea v. HRET 270 SCRA 340 - While statues
providing for election contests are to be liberally
construed, the rule likewise stands, that in an election
protest, the protestant must stand or fall upon the
issues he had raised in his original or amended
pleading filed prior to the lapse of the statutory
period for filing of the protest considering that
compliance therewith are rendered mandatory
for candidates.

LIMITATIONS TO THE LIBERAL CONSTRUCTION
(WHEN LIBERAL CONSTRUCTION POLICY NOT
APPLICABLE)

1) When the amendment to pleadings in an
election contest will substantially change the
cause of action, defense or theory of the case;
2) When the amendment will alter a final
judgment on a substantial matter;
3) When the amendments will confer jurisdiction
upon the court when none existed before;
4) When it seeks to cure a premature or non-
existent cause of action
5) When the amendment is intended to delay the
proceedings of the case.

Hofer v. HRET, GR. No. 158833, May 12, 2005 -
the time limit for presentation of evidence of 20 days
conformably with Rule 59 of the HRET Rules is explicit
and strictly complied with. It is not a technicality that
can be set aside as would make the liberal construction
policy operative.
TYPES OF ELECTIONS

1. REGULAR ELECTIONS is an election held on such dates
established by law at regular intervals. Whether national or
local, it refers to an election participated in by
a. those who possess the right of suffrage,
b. are not otherwise disqualified by law and
c. who are registered voters.

Paras v. COMELEC 264 SCRA 49 (1996) SK election is
not considered a regular elections because the said elections are
participated in by youth with ages ranging from 15 to 21, some
of whom are not qualified voters to elect local or national
elective officials.

2. SPECIAL ELECTIONS

a) In cases were postponement and failure of elections
are declared by COMELEC
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b) In case a permanent vacancy shall occur in the
Senate or House of Representative at least 1 year
before the expiration of the term
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, the COMELEC
shall call and hold a special election to fill the vacancy not
earlier than 60 days nor longer then 90 days after the
occurrence of the vacancy, However, in case of such
vacancy in the Senate, the special elections shall be held
simultaneously with the next succeeding regular elections.
c) In case a vacancy occurs in the offices of the
President and Vice-President, no special elections
shall be called if the vacancy occurs within 18
months before the date of the next presidential
elections
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OTHER FORMS OF POPULAR INTERVENTION

II. INTIATIVE

RA 6735:

INITIATIVE IS DEFINED AS THE POWER OF THE PEOPLE
TO PROPOSE AMENDMENTS TO THE CONSTITUTION OR
TO PROPOSE AND ENACT LEGISLATION THROUGH AN
ELECTION CALLED FOR THE PURPOSE.
Initiative is resorted to (or initiated) by the people directly
either because the law-making body fails or refuses to enact the
law, ordinance, resolution or act that they desire or because
they want to amend or modify one already existing.

There are 3 systems of initiative:

a. Initiative on the Constitution which refers to a petition
proposing amendments to the Constitution;
b. Initiative on statutes which refers to a petition proposing to
enact a national legislation; and
c. Initiative on local legislation which refers to a petition
proposing to enact a regional, provincial, city or municipal or
barangay law, resolution or ordinance.

INDIRECT INITIATIVE is exercised of initiative by the
people through a proposition sent to Congress or the local
legislative body for action.

III. REFERENDUM

+ REFERENDUM is the power of the electorate to
approve or reject legislation through an election
called for the purpose. The law-making body submits
to the registered voters of its territorial jurisdiction, for
approval or rejection, any ordinance or resolution which is
duly enacted or approved by such law making authority.

Referendum may be of 2 classes:

a. Referendum on statutes which refer to a petition to
approve or reject an act or law, or part thereof, passed by
Congress; and
b. Referendum on local law which refers to a petition to
approve or reject a law, resolution or ordinance enacted by
regional assemblies and local legislative bodies.

SBMA V. COMELEC 262 SCRA 492 (1996) not only
Ordinances but also Resolutions are also appropriate subjects of
a local initiative.

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Sec. 5,6,7, BP 881
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Sec. 4, 7166
4
Art. VII, Sec. 10, Constitution

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WHO MAY EXERCISE: It is exercised by all registered
voters of the country, autonomous regions, provinces, cities
and barangays.

REQUIREMENTS:

1) To exercise the power of INITIATIVE AND
REFERENDUM:

National Law or Law passed by the legislative
assembly of an autonomous region, province or
city:
a. at least 10% of the total number of registered
voters,
b. of which every legislative district is represented by
at least 3% of the registered voters thereof,
c. shall sign a petition for the purpose and register
the same with the COMELEC.
d. The percentage requirement is likewise applicable
and is deemed validly initiated to a referendum or
initiative affecting a law, resolution or ordinance

Law passed in a municipality

a. petition is signed by at least 10% of the RV of the
municipality
b. of which every barangay is represented by at least
3% of the RV voters therein.

With respect to a barangay resolution or
ordinance

a. signed by at least 10% of the registered voters of
said barangay.

2) a petition for an INITIATIVE on the 1987 Constitution,
a. must be signed by at least 12% of the total number of
registered voters,
b. of which every legislative district must be
represented by at least 3% of the voters therein.
c. LIMITATION: Initiative may be initiated only
after 5 years following the ratification of the
1987 Constitution and only once every five (5)
years thereafter.

PROCEDURE IN THE CONDUCT OF INITIATIVE AND
REFERENDUM:

1. The COMELEC, shall schedule a special registration of
voters at least 3 weeks before the scheduled initiative or
referendum.
2. After determining the sufficiency of the petition, the
COMELEC shall, within 30 days, publish the same in
Filipino and English at least twice in a newspaper of
general and local circulation and set the date of the
Initiative or Referendum not earlier than 45 days but not
later than 90 days from the determination by the
COMELEC of the sufficiency of the petition.
3. The Election Registrar shall verify the signatures on the
petition on the basis of the registry of voters, voters
affidavits and voters identification cards used in the
immediately preceding elections.

EFFECTIVITY OF INITIATIVE or REFERENDUM

1) The national law proposed for enactment, approval or
amendment approved by a majority of the votes cast as
certified by the COMELEC, shall become effective 15
days following completion of its publication in the
Official Gazette or in a newspaper of general
circulation in the Philippines.
2) The proposition to reject a national law approved by a
majority of the votes cast, shall be deemed repealed and
the repeal shall become effective 15 days following
the completion of publication of the proposition
and the certification by the Commission. But if
the majority is not obtained, the national law
sought to be rejected or amended shall remain in
full force and effect.
3) With regards to the proposition in an initiative on the
CONSTITUTION approved by a majority of the votes
cast in the plebiscite, the same shall become effective
as to the day of the plebiscite.

Santiago v. COMELEC 270 SCRA 106, COMELEC
cannot validly promulgate rules and regulations to
implement the exercise of the right of the people to
directly propose amendments to the Constitution through
the system of initiative. The power of the COMELEC to
issue rules and regulations is limited only to what is
provided under (A) Section 3 of Article IX-C of the
Constitution, or (b) by a law where subordinate legislation
is authorized and which satisfies the completeness and
sufficiency standard tests.

In this case the petition to propose amendments to the
Constitution particularly the lifting of the term limits of public
elective officials was not validly initiated as it failed to comply
with the signature requirement for initiating an Initiative
(Petition signed by at least 12% of all the registered voters where
each legislative district is represented at least by 3%) . The
COMELEC never acquired jurisdiction over the petition as
jurisdiction is acquired only after its filing the petition being
the initiatory pleading.

Lambino vs. COMELEC, G.R. No. 174153, Oct. 25, 2006

FACTS: The Lambino Group commenced gathering signatures
for an initiative petition to change the 1987 Constitution and
then filed a petition with COMELEC to hold a plebiscite for
ratification under Sec. 5(b) and (c) and Sec. 7 of RA 6735. The
proposed changes under the petition will shift the present
Bicameral-Presidential system to a Unicameral-Parliamentary
form of government. COMELEC did not give it due course for
lack of an enabling law governing initiative petitions to amend
the Constitution, pursuant to Santiago v. COMELEC ruling.

ISSUES:
Whether the proposed changes constitute an amendment or
revision
Whether the initiative petition is sufficient compliance with the
constitutional requirement on direct proposal by the people

RULING:
Initiative petition does not comply with Sec. 2, Art. XVII on
direct proposal by people
Sec. 2, Art. XVII...is the governing provision that allows a
peoples initiative to propose amendments to the Constitution.
While this provision does not expressly state that the petition
must set forth the full text of the proposed amendments, the
deliberations of the framers of our Constitution clearly show
that: (a) the framers intended to adopt relevant American
jurisprudence on peoples initiative; and (b) in particular, the
people must first see the full text of the proposed amendments
before they sign, and that the people must sign on a petition
containing such full text.
The essence of amendments directly proposed by the
people through initiative upon a petition is that the entire
proposal on its face is a petition by the people. This means two
essential elements must be present.

2 elements of initiative
First, the people must author and thus sign the entire
proposal. No agent or representative can sign on their behalf.
Second, as an initiative upon a petition, the proposal must
be embodied in a petition.

These essential elements are present only if the full text of
the proposed amendments is first shown to the people who
express their assent by signing such complete proposal in a
petition. The full text of the proposed amendments may be
either written on the face of the petition, or attached to it. If so
attached, the petition must stated the fact of such attachment.
This is an assurance that everyone of the several millions of
signatories to the petition had seen the full text of the proposed
amendments before not after signing.
Moreover, an initiative signer must be informed at the
time of signing of the nature and effect of that which is
proposed and failure to do so is deceptive and misleading
which renders the initiative void.
In the case of the Lambino Groups petition, theres not a
single word, phrase, or sentence of text of the proposed changes
in the signature sheet. Neither does the signature sheet state
that the text of the proposed changes is attached to it. The
signature sheet merely asks a question whether the people
approve a shift from the Bicameral-Presidential to the
Unicameral- Parliamentary system of government. The
signature sheet does not show to the people the draft of the
proposed changes before they are asked to sign the signature
sheet. This omission is fatal.
An initiative that gathers signatures from the people
without first showing to the people the full text of the proposed
amendments is most likely a deception, and can operate as a
gigantic fraud on the people. Thats why the Constitution
requires that an initiative must be directly proposed by the
people x x x in a petition - meaning that the people must sign
on a petition that contains the full text of the proposed
amendments. On so vital an issue as amending the nations
fundamental law, the writing of the text of the proposed
amendments cannot be hidden from the people under a general
or special power of attorney to unnamed, faceless, and
unelected individuals.


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The initiative violates Section 2, Article XVII of the
Constitution disallowing revision through initiatives
Article XVII of the Constitution speaks of three
modes of amending the Constitution. The first mode is
through Congress upon three-fourths vote of all its
Members. The second mode is through a constitutional
convention. The third mode is through a peoples
initiative.
Section 1 of Article XVII, referring to the first and
second modes, applies to any amendment to, or revision
of, this Constitution. In contrast, Section 2 of Article
XVII, referring to the third mode, applies only to
amendments to this Constitution. This distinction was
intentional as shown by the deliberations of the
Constitutional Commission. A peoples initiative to change
the Constitution applies only to an amendment of the
Constitution and not to its revision. In contrast, Congress
or a constitutional convention can propose both
amendments and revisions to the Constitution.

Does the Lambino Groups initiative constitute a revision
of the Constitution?
Yes. By any legal test and under any jurisdiction, a
shift from a Bicameral-Presidential to a Unicameral-
Parliamentary system, involving the abolition of the Office
of the President and the abolition of one chamber of
Congress, is beyond doubt a revision, not a mere
amendment.

Amendment vs. Revision
Revision broadly implies a change that alters a basic
principle in the constitution, like altering the principle of
separation of powers or the system of checks-and-
balances. There is also revision if the change alters the
substantial entirety of the constitution, as when the
change affects substantial provisions of the constitution.
On the other hand, amendment broadly refers to a change
that adds, reduces, or deletes without altering the basic
principle involved. Revision generally affects several
provisions of the constitution, while amendment generally
affects only the specific provision being amended.
Where the proposed change applies only to a specific
provision of the Constitution without affecting any other
section or article, the change may generally be considered
an amendment and not a revision. For example, a change
reducing the voting age from 18 years to 15 years is an
amendment and not a revision. Similarly, a change
reducing Filipino ownership of mass media companies
from 100% to 60% is an amendment and not a revision.
Also, a change requiring a college degree as an additional
qualification for election to the Presidency is an
amendment and not a revision.
The changes in these examples do not entail any
modification of sections or articles of the Constitution
other than the specific provision being amended. These
changes do not also affect the structure of government or
the system of checks-and-balances among or within the
three branches.
However, there can be no fixed rule on whether a
change is an amendment or a revision. A change in a
single word of one sentence of the Constitution may be a
revision and not an amendment. For example, the
substitution of the word republican with monarchic or
theocratic in Section 1, Article II of the Constitution
radically overhauls the entire structure of government and
the fundamental ideological basis of the Constitution.
Thus, each specific change will have to be examined case-
by-case, depending on how it affects other provisions, as
well as how it affects the structure of government, the
carefully crafted system of checks-and-balances, and the
underlying ideological basis of the existing Constitution.
Since a revision of a constitution affects basic
principles, or several provisions of a constitution, a
deliberative body with recorded proceedings is best suited
to undertake a revision. A revision requires harmonizing
not only several provisions, but also the altered principles
with those that remain unaltered. Thus, constitutions
normally authorize deliberative bodies like constituent
assemblies or constitutional conventions to undertake
revisions. On the other hand, constitutions allow peoples
initiatives, which do not have fixed and identifiable
deliberative bodies or recorded proceedings, to undertake
only amendments and not revisions.

Tests to determine whether amendment or revision
In California where the initiative clause allows
amendments but not revisions to the constitution just like
in our Constitution, courts have developed a two-part test:
the quantitative test and the qualitative test. The
quantitative test asks whether the proposed change is so
extensive in its provisions as to change directly the
substantial entirety of the constitution by the deletion or
alteration of numerous existing provisions. The court examines
only the number of provisions affected and does not consider
the degree of the change.
The qualitative test inquires into the qualitative effects of
the proposed change in the constitution. The main inquiry is
whether the change will accomplish such far reaching changes
in the nature of our basic governmental plan as to amount to a
revision. Whether there is an alteration in the structure of
government is a proper subject of inquiry. Thus, a change in the
nature of [the] basic governmental plan includes change in its
fundamental framework or the fundamental powers of its
Branches. A change in the nature of the basic governmental
plan also includes changes that jeopardize the traditional form
of government and the system of check and balances.
Under both the quantitative and qualitative tests, the
Lambino Groups initiative is a revision and not merely an
amendment. Quantitatively, the Lambino Groups proposed
changes overhaul two articles - Article VI on the Legislature and
Article VII on the Executive - affecting a total of 105 provisions
in the entire Constitution. Qualitatively, the proposed changes
alter substantially the basic plan of government, from
presidential to parliamentary, and from a bicameral to a
unicameral legislature.

A change in the structure of government is a revision
A change in the structure of government is a revision of the
Constitution, as when the three great co-equal branches of
government in the present Constitution are reduced into two.
This alters the separation of powers in the Constitution. A shift
from the present Bicameral-Presidential system to a
Unicameral-Parliamentary system is a revision of the
Constitution. Merging the legislative and executive branches is a
radical change in the structure of government. The abolition
alone of the Office of the President as the locus of Executive
Power alters the separation of powers and thus constitutes a
revision of the Constitution. Likewise, the abolition alone of one
chamber of Congress alters the system of checks-and-balances
within the legislature and constitutes a revision of the
Constitution.
The Lambino Group theorizes that the difference between
amendment and revision is only one of procedure, not of
substance. The Lambino Group posits that when a deliberative
body drafts and proposes changes to the Constitution,
substantive changes are called revisions because members of
the deliberative body work full-time on the changes. The same
substantive changes, when proposed through an initiative, are
called amendments because the changes are made by ordinary
people who do not make an occupation, profession, or vocation
out of such endeavor. The SC, however, ruled that the express
intent of the framers and the plain language of the Constitution
contradict the Lambino Groups theory. Where the intent of the
framers and the language of the Constitution are clear and
plainly stated, courts do not deviate from such categorical intent
and language.

SBMA v. COMELEC 252 SCRA 492 (1996).

FACTS: Sangguniang bayan passed Pambayang Kapasyahan
Bilang 10, Serye 1993, expressing therein its absolute
concurrence as required by RA 7227 (Bases Conversion and
Development Act) to join the Subic Special Economic Zone. On
September 5, 1993, the SB submitted the Kapasyahan to the
Office of the President. Petitioner SBMA seeks to nullify the
respondent COMELECs Orders denying petitioners plea to
stop the holding of a local initiative and referendum on the
proposition to recall the Kapasyahan.

To begin with, the process started by respondents was an
Initiative but respondent COMELEC made
preparations for a Referendum. In the body of the
COMELEC Resolution No. 2842, the word referendum is
repeated at least 27 times, but initiative is not mentioned at all.
The COMELEC labeled the exercise as a referendum, the
counting of votes was entrusted to a referendum committee, the
documents were called referendum returns, the canvassers
referendum board of canvassers and the ballots themselves bore
the description referendum.

SC DISTINGUISHED INITIATIVE FROM
REFERENDUM:

Initiative Referendum
Initiative is a process of law-
making by the people
themselves without the
participation and against the
wishes of their elected
representatives,
Referendum consists merely
of the electorate approving or
rejecting what has been drawn
up or enacted by a legislative
body.
The process and the voting in
an initiative are more
complex.
Voters simply write either
yes or no in the ballot

6

The Constitution clearly includes not only
ordinances but also resolutions (which pertains to an
act passed by a local legislative body) as appropriate
subjects of a local initiative in accordance with Section 32
Article VI of the Constitution.

IV. RECALL

+ RECALL is the mode of removal of a public
officer by the people before the end of his
term of office which shall be exercised by the
registered voters of a local government unit
to which the local elective official subject of
such recall belongs.
5

Garcia vs. COMELEC 227 SCRA 100 (1993) The
peoples prerogative to remove a public officer is an
incident of their sovereign power and in the absence of a
constitutional restraint, the power is implied in
governmental operations.

MODE OF INITIATING RECALL (RA 7160)

Limited to a petition commenced only by the
registered voters in the local unit concerned.
6

Section 70: The recall of any elective provincial, city,
municipal or barangay official shall be commenced by a
petition of a registered voter in the LGU concerned with the
following percentage requirement:
At least 25% in the case of an LGU with a voting
population of not more than 20,000
At least 20% in the case of LGUs with a voting
population of at least 20,000 but not more than
75,000. Provided, that in no case shall the required
petitioners be less than 5,000
At least 15% in the case of local government units
with a voting population of at least 75,000 but not
more than 300,000: Provided however, that in no
case shall the required number of petitioners be less
than 15,000; and
At least 10% in the case of local government units
with a voting population of over 300,000: Provided,
however, that in no case shall the required
petitioners be less than 45,000.

(1) Initiated by a written petition for recall duly signed
before the Election Registrar or his representative
and in the presence of a representative of the
petitioner and a representative of the official
sought to be recalled, and in a public place in the
province, city, municipality or brgy. as the case
may be, shall be filed with the COMELEC through
its office in the local government unit concerned.
(2) The COMELEC shall cause the publication of the petition
in a public and conspicuous place for a period of not less
than 10 days nor more than 20 days, for the purpose of
verifying the authenticity and genuineness of the petition
and the required percentage of voters.
(3) Upon the lapse of the said period, the COMELEC shall
announce the acceptance of candidates to the position and
prepare the list of candidates including the names of the
official sought to be recalled (as he is automatically
considered a registered candidate and entitled to be voted
upon (Sec. 71 RA 7160) but who is prohibited to resign
while the recall proceeding is in progress (Sec. 73).

ELECTION ON RECALL

Upon the filing of the resolution or petition, the shall set
the date of the election on recall not later than 30 days for
city, brgy. or municipal officials and 45 days for provincial
officials.

EFFECTIVITY OF RECALL

only upon the election and proclamation of a successor in
the person of the candidate who received the highest
number of votes cast during the election in recall.
Should the official sought to be recalled receive the highest
number of votes, confidence in him is thereby affirmed
and he shall continue in office (Sec. 72).

5
Sec. 69 of RA 7160
6
Section 70 and 71 of RA 7160 is now amended by RA 9244, otherwise
known as an Act Eliminating the Preparatory Recall Assembly as a Mode of
Instituting Recall of Elective Local Government Officials.

LIMITATIONS ON RECALL

an elective official may be subject of recall elections only once
during his term exclusively on the ground of lack of
confidence.
The recall cannot be undertaken within 1 year from the
date of the officials assumption of office or one (1)
year immediately preceding a regular election (Sec. 74).

Paras v. COMELEC 264 SCRA 49: SK elections is not
considered a regular local elections for purposes of
recall under Sec. 74 of RA 7160. The term regular local
elections is construed as one referring to an election where the
office held by the local elective official sought to be recalled will
be contested and be filled up by the electorate. It is confined to
the regular elections of elective national and local officials.

Angobung v. COMELEC 269 SCRA 245, the petition to
initiate recall proceedings must be filed by at least 25%
of the total number of RV and cannot be filed by one
person only. The law merely stated that the recall be
initiated by a petition of at least 25% of the RV and
did not provide that the petition must be signed,
considering that process of signing is statutorily
required to be undertaken before the ER.

Malonzo v. COMELEC and the Liga ng mga barangay March
11, 1997, Malonzo questioned the validity of recall proceedings
initiated by the said Liga composed of Punong Barangays and
SK Chairmen. The SC upheld the validity of the recall
proceedings and stated that while the Liga is an entity distinct
from the PRA, it so happens that the personalities representing
the barangays in the Liga are the very same members of the
PRA, the majority of whom met and voted in favor of the
resolution calling for the recall of Mayor Malonzo.

Jovito Claudio v. COMELEC et. al and PRA of Pasay v.
COMELEC 331 SCRA 388 (2000),

Two issues were settled in the matter of recall:

1. On whether the word Recall in par. (b) of Sec. 74 of RA
7160 includes the convening of the PRA and the filing by
it of a recall resolution and
2. On whether the phrase Regular Local Elections in the
same paragraph includes the election period for that
regular election or simply the date of the election.

Facts: Claudio was the mayor of Pasay who assumed
office on July 1, 1998. Subsequently in May 29, 1999, of the
1,790 members of the PRA 1079 adopted the resolution
entitled Resolution to initiate the recall of Claudio as
Mayor for Loss of Confidence.

Claudio and two others, filed oppositions alleging
procedural and substantive defects among which and more
importantly anent the issue at hand, that the convening
of the PRA took place within one-year prohibited
period.

Held:

First Issue the petitioner claims that when several
barangay chairpersons met and convened on May 19, 1999
and resolved to initiate the recall, followed by the taking of
votes on May 29, 1999, the process of recall began and that
since May 29, 1999 was less than 1 year after he had
assumed office, the PRA was illegally convened and all
proceedings held thereafter, including the filing of the
recall petition in July 2, 1999 were null and void.

The COMELEC on the other hand, maintains that the
process of recall starts with the filing of the petition for
recall and ends with the conduct of the recall elections and
that, since the petition for recall was filed on July 2, 1999,
exactly one year and 1 day after petitioners assumption of
office, he recall was validly initiated outside the one year
prohibited period. Both petitioner and COMELEC agreed
that the term recall as used in Sec. 74 refers to a process.
They however disagree as to when the process starts for
the purpose of the one year limitation in par. (b) of Sec. 74.

RECALL as used in par. (b) of Sec. 74 refers to
the election itself by means of which voters decide
whether they should retain their local officials or
elect his replacement. Sec. 74 deals with restrictions
on the power of recall. On the other hand, Sec. 69 provides
that the power of recall shall be exercised by the registered
voters of the local government unit to which the local
elective official belongs. Since the power vested on
the electorate is not the power to initiate recall
proceedings (such power is vested in the PRA or in

7
at least 25% of the registered voters under
Sec. 70), but the power to elect an official into
office, the limitations in Sec. 74 cannot be
deemed to apply to the entire recall
proceedings.

In other words, recall in par. (b) of Sec. 74
refers only to the RECALL ELECTION, which
excludes the preliminary proceedings to initiate
recall such as the convening of the PRA and the filing
of a petition for recall with the COMELEC, or the
gathering of signatures of at least 25% of the voters
for a petition for recall. Considering that the recall
election in Pasay was set on April 15, 2000, more
than one after the petitioner assumed office as mayor
of that city, the SC held that there is no bar to its
holding on said date.

As to the Second Issue petitioner argued that the
phrase regular local elections in par. (b) of Sec. 74
does not only mean the day of the regular local
elections which for the year 2001 is May 14, but the
election period as well, at 45 days immediately before
the day of the election. Thus contending that
beginning March 30, 2000, no recall election may be
held.

Had congress intended this limitation to refer to the
campaign period, which period is defined in the OEC,
it could have expressly said so. If we follow
petitioners interpretation, it would severely
limit the period a recall election will be held.

Manuel Afiado et. al. vs. COMELEC 340 SCRA 600,
the issue is WoN an elective official who became Mayor
by legal succession can be the subject of a recall election
by virtue of a PRA Resolution passed or adopted when the
said elective official was still the Vice-Mayor.

Facts: Miranda became the substitute candidate for his
father, for the position of Mayor. Joel emerged as the
winner over his opponent Abaya and he was later
proclaimed with Navarro as Vice-Mayor.

Defeated Abaya filed with the COMELEC a Petition to
Declare Null and Void Substitution which later was
amended seeking to declare the certificate of candidacy of
the father, Jose Miranda, as null and void. The COMELEC
ruled that the Certificate of candidacy was not valid,
hence, he cannot be validly substituted by his son Joel, as
a mayoralty candidate in Santiago City.

While the Petition of Joel was pending with the SC, the
PRA of Santiago City convened on July 12, 1999 and
adopted a Resolution calling for the recall of Vice-Mayor
Navarro for loss of confidence.

After the Supreme court denied with finality the Petition
of Joel, Vice-Mayor Navarro assumed and took oath as
new mayor of Santiago City.

COMELEC denied due course the PRA Resolution as moot
for the reason that the assumption by legal succession of
petitioner as the new Mayor is a supervening event which
rendered the recall proceedings against her moot and
academic.

The SC referred to the Resolution itself which
specifically referred to the recall of Navarro as
Vice-Mayor for her official acts as VM. Even if the
PRA were to reconvene to adopt another
resolution for the recall of Navarro, this time as
Mayor, the same would still not prosper in view of
the limitation as prescribed in Sec. 74 which
provides that No recall shall take place within
one year from the date of the officials assumption
of office or one year immediately preceding a
regular elections. Navarro assumed office on October
11, 1999 and recall elections can only be initiated between
October 11, 2000 to October 11, 2001 which is now barred
by the May 14, 2001 elections.

V. PLEBISCITE

+ PLEBISCITE is the vote of the entire people or
the aggregate of the enfranchised individuals
composing a state or nation expressing their
choice for a proposed measure.

It is generally associated with the amending process of the
Constitution, particularly on the ratification aspects and is required
under the following:

a) Section 4 Art. XVII with reference to amendments or
revisions to the Constitution which may be proposed by
congress upon of the votes of all its members or by
constitutional convention
7

b) Sec. 10 Art. X relating to the creation, abolition, merging,
division or alteration of the boundaries of any political
unit.

Sanidad v. COMELEC 181 SCRA 529 the Supreme Court
declared as unconstitutional the restriction imposed by the
COMELEC on media relative to discussing on air and print the
features of the plebiscite issues in the creation of the
autonomous region for the Cordilleras and held that
Plebiscites are matters of public concern and
importance and the peoples right to be informed and
to be able to freely and intelligently make a decision
would be best served by access to an unabridged
discussion of the issues.

Padilla Jr. vs. COMELEC 214 SCRA 735, the COMELEC
resolved to approve the conduct of the plebiscite in the area or
units affected for the proposed Municipality of Tulay-na-Lupa
and the remaining areas of the mother Municipality of Labo,
Camarines Norte. Majority of the electorates in the units
affected did not favor the creation of Tulay-na-lupa.

Petitioner Gov. of Camarines Norte in a special Civil Action of
Certiorari seek to set aside the Plebiscite contending that it was
a complete failure and that the results obtained were invalid
and illegal because the Plebiscite as mandated by COMELEC
Res. 2312 should have been conducted only in the political unit
or units affected (which is the 12 barangays and should not have
included the mother unit of the Municipality of Labo.

HELD: With the approval and ratification of the 1987
Constitution, more particularly Art. X, Sec. 10, the creation,
division, merger, abolition or alteration of the boundaries of any
political unit shall be subject to the approval by a majority
of the votes case in a Plebiscite in the POLITICAL
UNITS AFFECTED and reiterated its ruling in Tan v.
COMELEC 142 SCRA 727 (1986) that in the conduct of a
Plebiscite, it is imperative that all constituents of the mother
and daughter units affected shall be included. The term
political units directly affected was held to mean that
residents of the political entity who would be
economically dislocated by the separation of a portion
thereof have a right to vote in the said Plebiscite or the
plurality of political units which would participate in
the Plebiscite.

Tobias et. al. v. Abalos Dec. 8, 1994 (En Banc), the
exclusion of the constituents of San Juan to participate in the
Plebiscite for the ratification of RA 7675 relative to the
conversion of Mandaluyong into a highy urbanized city
notwithstanding that it involved a change in their legislative
district was upheld for the reason that the matter of separate
district representation is merely ancillary to the conversion of
Mandaluyong into a highly urbanized city.

City of Pasig vs. COMELEC/Municipality of Cainta
Province of Rizal, Sept. 10, 1999, the issue as to the
propriety of the suspension of the Plebiscite
proceedings pending the decision of the boundary
dispute between the Municipality of Cainta and the
City of Pasig was raised.

7
Section 1. Any amendment to, or revision of, this Constitution may be proposed
by:
(1) The Congress, upon a vote of three-fourths of all its Members; or
(2) A constitutional convention.

Section 2. Amendments to this Constitution may likewise be directly proposed by
the people through initiative upon a petition of at least 12% of the total number of
registered voters, of which every legislative district must be represented by at least
three per centum of the registered voters therein. No amendment under this section
shall be authorized within five years following the ratification of this Constitution nor
oftener than once every 5 years thereafter.
The Congress shall provide for the implementation of the exercise of this right.

Section 4. Any amendment to, or revision of, this Constitution shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall be held not earlier
than 60 days nor later than 90 days after the approval of such amendment or
revision. xxx

8
FACTS: The City of Pasig passed on Ordinance creating
barangays Karangalan and Napico. The Municipality of
Cainta moved to suspend or cancel the respective
Plebiscite due to the pending case before the RTC of
Antipolo for the settlement of the boundary dispute and
prayed for its suspension or cancellation until the dispute
is decided by the RTC. The COMELEC suspended the
holding of the Plebiscite for the creation of Brgy.
Karangalan but rendered the creation of Napico as moot
as the same was already ratified in the Plebiscite held for
the purpose.

HELD: The creation of Napico cannot be
considered as moot and it is most proper that the
P be declared null and void in view of the pending
boundary dispute between Pasig and Cainta which
presents a PREJUDICIAL QUESTION AND MUST
BE DECIDED FIRST BEFORE THE P FOR THE
PROPOSED BRGYS. BE CONDUCTED.

Ma. Salavacion Buac/Antonio Bautista vs.
COMELEC, Alan Peter Cayetano, GR 155855,
January 26, 2004

FACTS: A petition for certiorari and mandamus was filed
by petitioners Buac and Bautista assailing the October 28,
2002 en banc resolution of the COMELEC which held that
it has no jurisdiction over controversies involving the
conduct of plebiscite and annulment of its results.
The facts show that in April 1988, a plebiscite was
held in Taguig for the ratification of the Taguig Cityhood
Law (RA No. 8487) proposing the conversion of Taguig
from a municipality into a city. Without completing the
canvass of 64 other election returns, the PBC declared that
the NO votes won and that the people rejected the
conversion of Taguig to a city. The PBOC was however
ordered by the COMELEC en banc to reconvene and
complete the canvass which the board did and in due time
issued an Order proclaiming that the negative votes
prevailed in the plebiscite conducted.
Petitioners filed with the COMELEC a petition to
annul the results of the plebiscite with a prayer for
revision and recount of the ballots cast therein. Cayetano
intervened and moved to dismiss the petition on the
ground of lack of jurisdiction of the COMELEC. He
claimed that a plebiscite cannot be subject of an election
protests. He averred that the jurisdiction to hear a
complaint involving the conduct of a plebiscite is lodged
with the RTC.
The COMELEC 2nd division initially gave due course
to the petition and ruled that it has jurisdiction over the
case. It treated the petition as akin to an election protest
considering that the same allegations of fraud and
irregularities in the casting and counting of ballots and
preparation of returns are the same grounds for assailing
the results of an election. It then ordered the Taguig ballot
boxes to be brought to its Manila Office and created
revision committees to revise and recount the plebiscite
ballots.
In an unverified motion, Intervenor Cayetano moved
for reconsideration of the COMELEC Order insisting that
it has no jurisdiction to hear and decide a petition
contesting the results of a plebiscite.
In a complete turnaround, the COMELEC 2nd
division issued an Order on November 29, 2001 granting
the Motion for Reconsideration. It dismissed the petition
to annul the results of the plebiscite and ruled that
COMELEC has no jurisdiction over said case as it involves
an exercise of quasi-judicial powers not contemplated
under Section 2(2), Article IX-C of the Constitution.
On appeal, the COMELEC En Banc affirmed the
ruling of its 2nd division. It held that the COMELEC
cannot use its power to enforce and administer all laws
relative to plebiscites as this power is purely
administrative or executive and not quasi-judicial in
nature. It concluded that the jurisdiction over the petition
to annul the Taguig plebiscite results is lodged with the
RTC under Section 19(6) of BP 129 which provides that
the RTC shall have exclusive original jurisdiction in cases
not within the exclusive jurisdiction of any court or body
exercising judicial or quasi-judicial functions. Hence, the
petition before the SC.

Petitioner reiterates:
Jurisdiction to decide plebiscite protest cases is
constitutionally vested with the COMELEC
COMELEC Order is discriminatory as during the
pendency of the Taguig case, the COMELEC assumed
jurisdiction over a similar case concerning the revision
and recount of the plebiscite ballots involving the
conversion of Malolos into a City. COMELEC resolved the
said case and already declared Malolos a city.

Respondent COMELEC/Cayetano contends that:
There is no such action as a plebiscite protest under the
Constitution;
The laws and the COMELEC rules provided only for
election protests;
The quasi-judicial jurisdiction of the COMELEC over
election contests extends only to cases enumerated in Section
2(2), Article XI of the Constitution (sole judge of all contests
involving), which does not include controversies over plebiscite
results, and;
Even if the petition to annul plebiscite results is akin to an
election protests, it is the RTC that has jurisdiction over election
protests involving municipal officials and the COMELEC has
only appellate jurisdiction in said cases.

HELD: The SC held that the key to the case is its nature, which
involves the determination of whether the electorate of Taguig
voted in favor of or against the conversion of the municipality of
Taguig. The invocation of judicial power to settle disputes
involving the conduct of a Plebiscite is misplaced. Judicial
power as defined under Section 1, Article VIII of the
Constitution as the duty of the court of justice to settle actual
controversies involving the rights which are legally demandable
and enforceable and to determine whether or not there has been
grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
government.
The instant case assailing the regularity of the conduct of
the Taguig Plebiscite does not fit the kind of case calling for the
exercise of judicial power. There is no plaintiff or defendant in
the case for it merely involves the ascertainment of the vote of
the electorate on whether they approve or disapprove the
conversion of their municipality into a highly urbanized city.
In referring to Article IX-C, Section 2(1), the SC said that
the said provision is explicit that COMELEC has power to
enforce and administer all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum, and
recall. To enforce means to cause to take effect or to cause the
performance of such act or acts necessary to bring into actual
effect or operation, a plan or measure which entails all the
necessary to bring into actual effect or operation, a plan or
measure which entails all the necessary and incidental power
for it to achieve the holding of HOPE-FRECRE. The Sc was
surprised that for the first time, COMELEC yielded its historic
jurisdiction over a motion for reconsideration which was even
filed out of time, thus rendering it without jurisdiction to
entertain the same.

COMELEC

NATURE AND POWERS

1. COMPOSITION AND QUALIFICATIONS OF THE
CHAIRMAN & THE SIX (6) COMMISSIONERS

Composed of a Chairman and six commissioners who shall be:
o Natural born citizen of the Philippines and
o At the time of their appointment, at least 35 years of
age,
o Holders of a college degree and
o Must not have been candidates for any elective
position in the immediately preceding elections.
o However, majority thereof, including the chairman, shall
be members of the Philippine Bar who have been
engaged in the practice of law at least 10 years.
8

2. MANNER OF APPOINTMENT/LIMITATIONS/REMOVAL

The Chairman and the commissioners shall be
appointed by the President with the consent of the
commission on appointments for a term of 7 years
without reappointment.
Appointment to any vacancy shall be only for the unexpired
term of the predecessor.
In no case shall any member be appointed or designated in a
temporary or acting capacity.
9

Commissioners are removable by impeachment.
10

Can the President appoint or designate a temporary
chairman of the COMELEC?

Brillantes v. Yorac 192 SCRA 358, The President cannot
validly designate Yorac as acting chairman on the legal premise

8
Section 1 (1) of Article IX C
9
Sec. 1(2) of Article IX-C -
10
Section 8, Article XI of the Constitution,

9
that Art. IX-C Sec. 1(2) prohibits the appointment of
members in a temporary or acting capacity. Art. IX-A
Sec. 1(2) provides for the independence of the
COMELEC and therefore, the choice of a
temporary chairman falls under the discretion
and prerogative of the commission and cannot be
exercised for it by the President.

1997 Bar Question: A month before the forth coming
election, A one of the incumbent Commissioners of the
COMELEC, died while in office and B, another
Commissioner, suffered a sever stroke. In view of the
proximity of the elections and to avoid paralyzation in the
COMELEC, the President, who was not running for any
office, appointed Commissioner C of the COA, who
was not a lawyer but a CPA by profession, ad
interim Commissioner to succeed Commissioner A and
designated, by way of temporary measure, Associate
justice D of the Court of Appeals as Acting Associate
Commissioner during the absence of Commissioner B.
Question: Did the President do the right thing in
extending such ad interim appointment in favor of
Commissioner C and designating Justice D acting
Commissioner of the COMELEC?

Suggested Answer: No. The President was wrong in
extending an ad interim appointment in favor of
Commissioner C. In Summers vs. Ozaeta 81 Phil.
754, it was held that an ad interim appointment is a
permanent appointment. Under Section 15, Article
VII of the Constitution, within two months immediately
before the next presidential elections and up to the end of
his term, the President cannot make permanent
appointments.

The designation of Justice D as acting Associate
Commissioner is also invalid. Section 1(2), Article IX-C of
the Constitution prohibits the designation of any
Commissioner of the COMELEC in a temporary or acting
capacity. Section 12, Article VIII of the Constitution
prohibits the designation of any member of the Judiciary
to any agency performing QJ or administrative functions.

1998 BQ: Suppose a Commissioner of the COMELEC is
charged before the SB for allegedly tolerating violation of
the election laws against proliferation of prohibited
billboards and election propaganda with the end in view of
removing him from office. Will the action prosper?

Suggested Answer: No. Under Section 8, Article XI of the
Constitution, the Commissioners are removable by
impeachment. As held in the case of In re Gonzales, 160
SCRA 771, a public officer who is removable by
impeachment cannot be charged before the SB
with an offense which carries with it the penalty
of removal from office unless he is first
impeached. Otherwise, he will be removed from
office by a method other than impeachment.

MEANING OF THE PRACTICE OF LAW

Cayetano v. Monsod 210 SCRA 210, the Supreme Court
held that engaging in law practice is not only confined to
courtroom practice. It includes any activity, in or out
of court, which requires the application of law,
legal procedure, knowledge, training and
experience. In upholding the confirmation of
Monsod, the SC held that the more than 10 years
of work experience of Monsod as a lawyer
economist and other position requiring
application of his legal knowledge constituted as
engaging in the practice of law as would qualify
him with such work experience to be Chairman of
the COMELEC.

NATURE OF THE POWERS OF COMELEC

The powers and functions possessed by the COMELEC
ARE EXECUTIVE/ADMINISTRATIVE which
pertains to the power to enforce and administer all laws
and regulations relative to the conduct of an election,
plebiscite, initiative, referendum and recall. The power
to enforce and enforce all laws, rules and
regulations governing elections is exclusive to the
COMELEC with the set purpose of insuring an honest,
orderly, peaceful, free and credible elections.

The RTC cannot assume jurisdiction over a case involving
the enforcement of the election code which pertained to
taking cognizance of a Special Civil Action filed before it
to restrain Mayor from pursuing certain
infrastructure projects during the election period
which was alleged to constitute a violation of Sec. 261
of the OEC. (Zaldivar v. Estenzo 23 SCRA 540; Gallardo
v. Tabamo 32 SCRA 690).

A judge who restrained the suspension of the
canvassing of election returns is guilty of ignorance of
the law and is administratively liable therefore.
(Libardo v. Cesar 234 SCRA 13).

The other executive/administrative pertains to all
questions affecting elections such as:

1) The determination of the number and location of polling
places.
2) Deputization/appointment of election officials and
inspectors
3) Supervise registration of voters
4) Award of bid contracts
5) Regulate the use of firearms
6) Call special elections
7) Investigation and prosecution of election offenses
8) Declare a postponement, suspension, annulment or failure
of elections
9) Regulate the use of franchise or permits to operate media
of communications and information.
10) Require compliance with the rules for the filing of
certificates of candidacy.
11) Proclamation of winners
12) Registration of Political Parties and Accredit Citizens Arms

QUASI-LEGISLATIVE POWERS

Pertains to:
1) Prescribing rules to govern procedure (COMELEC Rules of
Procedure) and
2) promulgation of rules and regulations relative to the
conduct of elections to insure an honest, orderly, peaceful,
free and credible elections, such as; issuance of rules to
supervise and regulate media and advertisement, rules to
implement prohibition against expenditures or those in
excess of the limits authorized by law.

Brilliantes, Concepcion, Jr., De Venecia, Angara,
Galvez-Lim. Drilon, San Juan, Gonzales, Isleta and
Bernas vs. COMELEC, GR 163193 June 15, 2004
FACTS: In this case, at issue was an En Banc Resolution No.
67.12, dated April 28, 2004 of COMELEC providing en Banc
Resolution No. 6712, dated April 28, 2004 of COMELEC to
acquire automated counting machines and other equipment,
devices, and materials. COMELEC issued a resolution providing
for the 3 phases in the implementation:
PHASE I computerized system of registration and voters
validation or the so-called biometrics system of registration;
PHASE II Computerized voting and counting of votes;
PHASE III Electronic Transmission of Results
In connection with PHASE II, COMELEC issued
Resolution No. 6074 awarding the AES contract to Mega Pacific
Consortium which was nullified by the SC on January 13, 2004
which also voided the contract entered with Mega for the
purchase of computerized counting machines for the purpose of
implementing the 2nd phase of the modernization program.
Consequently, COMELEC had to maintain the old manual
voting and counting system for the May 10, 2004 elections.
Similarly, the validation scheme under Phase I likewise
encountered problems and had earlier made pronouncements
that it was reverting to the old listing of voters. But despite the
scrapping of Phase II, COMELEC ventured to implement Phase
III of the AES through an electronic transmission of advanced
unofficial results of the 2004 elections for national, provincial,
and municipal position also dubbed as an unofficial quick
count.
NAMFREL and political parties moved for reconsideration
COMELEC Resolution No. 6712, alleging that:
It disregards RA 8173, 8436, and 7166 authorizing only the
citizens arm to use an election return for an unofficial
count; other unofficial counts may not be based on an
election return;
The Commissions copy, the 2nd and 3rd copy of the
election returns, as the case may be, has always been
intended to be archived and its integrity preserved until
required by the COMELEC to resolve election disputes.
Only the BEI is authorized to have been in contact with the
return before the Commission unseals it.
The instruction contained in Resolution No. 6712 to break
the seal of the envelope containing copies 2 and 3 will
introduce a break in the chain of custody prior to its
opening by the COMELEC. In the process of prematurely
breaking the seal of the BEI, the integrity of the
Commissions copy is breached thereby rendering it void of
any probative value.

10
COMELEC asserts that Section 52(i) OEC grants
statutory basis for it to issue and resolution which cover
the use of the latest technological and electronic devices
for unofficial tabulation of votes.
In assailing the validity of the resolution, petitioners
alleged that the Resolution is void:
For preempting the sole and exclusive authority of
Congress under VII, Section 4 to canvass votes for
the election of President and Vice-President;
For disregarding RA 8173, 8436, and 7166 which
authorize only the citizen arm to use an election
return for an unofficial count;
For violation of Section 52(i) of the OEC requiring
not less than 30 day notice of the use of new
technological and electronic devices.

HELD:
1ST ISSUE: That the assailed resolution is void as it
usurps the sole and exclusive authority of Congress to
canvass the votes for the election of President and Vice-
President in the guise of an unofficial tabulation of
election results based on a copy of the election returns.
Article VII, Section 4 of the Constitution provides in part
that the returns of every election for President and Vice-
President duly certified by the BOC of each province or
city shall be transmitted to the Congress, directed to the
President of the Senate. Upon receipt of the certificate of
canvass, the President of the Senate shall, not later than
30 days after the day of the election, open all the
certificates in the presence of the Senate and the House of
Representative in joint public session, and the Congress,
upon determination of the authenticity and due execution
thereof in the manner provided by law, canvass the votes.
2nd ISSUE: The resolution disregards existing laws
which authorizes solely the duly accredited citizens arm to
conduct the unofficial counting of votes. Under Section 27
of RA 7166, as amended by RA 8173 and reiterated in
Section 18 of RA 8436, the accredited citizens arm, in this
case, NAMFREL is exclusively authorized to use a copy
of the election returns in the conduct of an unofficial
counting of the votes, whether for the national or the local
elections. No other entity, including COMELEC itself, is
authorized to use a copy of the ER for purposes of
conducting an unofficial count.
3RD ISSUE: Since Resolution No. 6712 was made
effective immediately a day after its issuance on April 28,
2004, the COMELEC could not have possibly complied
with the 30-day notice requirement provided under
Section 52(i) of the OEC. This indubitably violates the
constitutional right to due process of the political parties
and candidates.
The AES provided in RA 8436 constitutes the entire
process of voting, counting of votes and
canvassing/consolidation of results of the national and
local elections corresponding to the Phase 1, 2, and 3 of
the AES. The 3 phases cannot be affected independently of
each other. Phase II was a condition sine qua non to the
implementation of Phase 3 and the nullification by the SC
of the contract for Phase II of the system effectively put on
hold at least for the May 10, 2004 elections, the
implementation of Phase 3 of the AES.

ADJUDICATORY OR QUASI-JUDICIAL POWERS

Embraces the power to resolve controversies that
may arise in the enforcement of election laws and
resolution of cases involving regional, provincial
and city officials or to election disputes in general.

Sec. 3, Article IX-C, that the COMELEC in the exercise
of its QJ functions may sit en banc or in two
divisions, and shall promulgate rules and
procedures in order to expedite the disposition
of elections cases, including pre-proclamation
controversies and summon parties to a
controversy pending before it.

The authority to hear and decide election cases,
including pre-proclamations controversies IS vested
with a division and the COMELEC sitting en banc
however does not have the authority over it in the
first instance.

The COMELEC en banc can exercise jurisdiction
only on Motions for Reconsideration of the
resolution or decision of the COMELEC in division
as a requirement for the filing of a petition for
certiorari by the aggrieved party with the SC
within 30 days from receipt of a copy thereof.

In the exercise of its QJ functions, the COMELEC is
empowered to cite a party for contempt of court
conformably with the rules of court and impose the appropriate
penalties as therein prescribed.

A motion to reconsider a decision, resolution, order or ruling of
a Division shall be filed within ) days from the promulgation
thereof.
11
Such motion, if not pro-forma suspends the execution
for implementation of the decision, resolution, order or ruling
and would in effect, suspend the running of the period to elevate
the matter to the SC (Sec. 4).

Coquilla v. COMELEC G.R. No. 151914, July 31, 2002,
the SC resolved the issue on whether the 30-day period for
appealing the resolution of the COMELEC was suspended by
the filing of a motion for reconsideration by the petitioner.
Private respondent in this case contends that the petition
should be dismissed because it was filed late considering that
the COMELEC en banc denied petitioners motion for
reconsideration for being pro-forma and conformably with Sec.
4 of Rule 19, the said motion did not suspend the running of the
30-day period for the filing of the petition for certiorari under
Sec. 7 Art. IX-A of the Constitution.

The COMELEC en Banc ruled that the motion for
reconsideration was pro-forma on the ground that the motion
was a mere rehash of petitioners averments contained in his
verified answer and memorandum, neither were there new
matters raised that would sufficiently warrant a reversal of the
assailed resolution of the Second Division. However, the mere
reiteration in a motion for reconsideration of the
issued raised by the parties and passed upon by the
court does not make a motion pro-forma; otherwise, the
movants remedy would not be a reconsideration of the decision
but a new trial or some other remedy.

In explaining the purpose/objective of a motion for
reconsideration, the SC referred to its decision in Guerra
Enterprises Company Inc. v. CFI of Lanao del Sur 32
SCRA 314 (1970), where it held that the ends sought to be
achieved in the filing of a motion for reconsideration is
precisely to convince the court that its ruling is erroneous and
improper, contrary to the law or the evidence, and in doing so,
the movant has to dwell of necessity upon the issues passed
upon by the court. It a motion for reconsideration may not
discuss these issues, the consequence would be that after a
decision is rendered, the losing party would be confined to filing
only motions for reopening and new trial.

The SC further enumerated cases where a motion for
reconsideration was held to be pro-forma: (1) it was a second
motion for reconsideration; (2) it did not comply with the rule
that the motion must specify the findings and conclusions
alleged to be contrary to law or not supported by the evidence;
(3) it failed to substantiate the alleged error; (4) it merely
alleged that the decision in question was contrary to law or (5)
the adverse party was not given due notice thereof.

Angelia v. COMELEC 332 SCRA 757 - As provided under
Rule 13, (1) of the COMELEC Rules of Procedure, a MOTION
FOR RECONSIDERATION OF AN EN BANC RESOLUTION IS
A PROHIBITED PLEADING, EXCEPT IN ELECTION
OFFENSE CASES (SEC. 261 OF THE OEC).
The proper recourse of a party who is aggrieved by a Decision of
the COMELEC En Banc on a Motion for Reconsideration of a
decision of a division in an ordinary action (election protest,
QW, appeal from decisions of the court in election protest
cases), is to file a petition for certiorari under Rule 65 of
the Rules of Civil Procedure within 30 days from
receipt of the aggrieved party of the said decision,
order or ruling.

Banaga, Jr. v. COMELEC 336 SCRA 701 - An en banc
decision in a special action (petition to deny due course or to
cancel a certificate of candidacy, proceedings against a nuisance
candidate, disqualification of candidates and postponement or
suspension for elections, pre-proclamation controversies)
becomes final and executory five (5) days from
promulgation.

Reyes v. RTC Mindoro 244 SCRA 41, the SC ruled that in
providing that the decisions, order and ruling of COMELEC
which may be brought to the SC on certiorari under Art. IX-A#7
refers to the special civil action for certiorari under Rule 65.

Garces v. Court of Appeals 259 SCRA 99 (1996) and
Filipinas Engineering & Machine Shop v. Ferrer 135 SCRA 25
(1985), the SC interpreted that term final orders, rulings and

11
Sec. 2 Rule 19 of the COMELEC Rules of Procedure

11
decisions of the COMELEC reviewable by the SC on
certiorari as provided by law are those rendered in actions
or proceedings before the COMELEC and taken
cognizance of by the said body in the exercise of its
adjudicatory or QJ powers. The Filipinas case involves a
resolution of the COMELEC awarding a contract for a
supply of voting booths to a private party, as a result of its
choice among various proposals submitted in response to
its invitation to bid, is not reviewable by certiorari as it is
not an order rendered in a legal controversy before it but
merely as an incident of its inherent administrative
functions over the conduct of elections. Hence, any
question arising from said order may be taken in an
ordinary civil action for injunction with the RTC.

Loong v. COMELEC, 305 SCRA 832 (1999) and
Macabago v. COMELEC, November 18, 2002, the
issue brought before the SC is whether or not a petition
for certiorari and prohibition under Rule 65 of the Rules
of Civil Procedure is a proper remedy to invalidate a
resolution of the COMELEC issued in the exercise of its
administrative powers?
SC held that although as a general rule, an
administrative order of the COMELEC is not a proper
subject of a special civil action for certiorari, but when the
COMELEC however acts capriciously or whimsically, with
grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing such an order, the aggrieved party
may seek redress from the SC via civil action for certiorari
under Rule 65 of the Rules of Civil Procedure.
The main issue in the Loong case is whether the
COMELEC gravely abused its discretion when it ordered a
manual count of the 1998 Sulu local elections. The
resolution of the issue involved an interpretation of RA
8436 on automated election in relation to the broad power
of the COMELEC under Section 2(1) of Article IX-C
(enforcement, etc.). The SC took cognizance as the issue is
not only legal but one of first impression and suffused
with significance to the entire nation. It is adjudicatory of
the right of parties to the position of the Governor of Sulu
which are enough consideration to call for an exercise of
the certiorari jurisdiction of the Court.

Ambil, Jr. v. COMELEC, 344 SCRA 358, the issue
brought before the SC is whether the SC has the power to
review via certiorari an interlocutory order or even a final
resolution of a Division of the COMELEC. Pursuant to
Section 7 of Article XI-A of the Constitution each
commission shall decide by a majority vote of all its
members in cases or matter brought before it within 60
days from the date of its submission for decision or
resolution. A case or matter is deemed submitted for
decision or resolution upon filing of the last pleading, brief
or memorandum required by the rules of the commission
or by the commission itself. Unless otherwise provided by
this constitution or law, any decision, order or ruling of
each commission may be brought to the SC on certiorari
by the aggrieved party within 30 days from receipt of a
copy thereof.
The SC held that is has interpreted this provision to
mean final orders, rulings and decision of the COMELEC
rendered in the exercise of its adjudicatory or quasi-
judicial powers and that the said final decision or
resolution must be of the COMELEC en banc, not of a
division and certainty not an interlocutory order of a
division. The SC has no power to review via certiorari, an
interlocutory order or even a final resolution of a Division
of the COMELEC.
The mode by which a decision, order or ruling of the
COMELEC en banc may be elevated to the SC is by way of
a special civil action of certiorari under Rule 65 of the
1964 Revised Rules of court, now expressly provided in
Rule 64 of the Rules of Civil Procedure, as amended. Rule
65, Section 1, 1997 Rules of Civil Procedure, as amended,
on the other hand, requires that there be no appeal or any
plain, speedy and adequate remedy in the ordinary course
of law. A MR is a plain and adequate remedy provided by
law. Failure to abide by this mandatory procedural
requirement constitutes a ground for dismissal of the
petition.
Another issue in this case is that the decision of a
member of a division whose decision has not yet been
promulgated prior to his retirement cannot validly take
part in the resolution or decision much more could be the
ponente of the resolution or decision as a final decision or
resolution becomes binding only after it is promulgated.
The resolution of decision of the Division must be signed
by a majority of its members and duly promulgated.
Otherwise, before that resolution is so signed and
promulgated, there is no valid resolution or decision to
speak of.

ADMINISTRATIVE FUNCTION

The doctrine of exhaustion of administrative remedies was
likewise discussed by the SC stressing that before a party is
allowed to seek the intervention of the court, it is a pre-
condition that he should have availed of all the means of
administrative processes afforded to him. A MR then is a pre-
requisite to the viability of a special civil action for certiorari
unless the party who avails of the latter can convincingly show
that his case falls under any of the following exceptions to the
rule:
When the question is purely legal;
Where judicial intervention is urgent;
Where the application may cause great and
irreparable damage;
Where the controverted acts violates due process;
Failure of a high government official from whom
relief is sought to act on the matter;
When the issue for non-exhaustion of administrative
remedies has been rendered moot.

Sabdullah T. Macabago v. COMELEC/Jamael M.
Salacop, 392 SCRA 178 (2002)
--(Failure if elections, annulment of elections, pre-
proclamation, election protest, distinction between the
remedies under Rule 64 and 65 of the Rules of Court)

FACTS: Macabago and Salacop were candidates for
Municipal Mayor of Saguiran, Lanao del Sur were Macabago
was proclaimend winner by the MBC.
Salacop filed a petition with the COMELEC against the
Macabago, the proclaimed Vice-Mayor, MC and MBOC to annul
the elections and the proclamation of candidates alleging
massive substitution of voters. Rampant and pervasive
irregularities in voting procedures in some precincts and failure
of the BEI to comply with Sections 28 and 29 of the COMELEC
Resolution No. 3743 and Section 193 of the OEC, thus rendering
the election process in those precincts a mockery and the
proclamation of the candidates a nullity. The case was docketed
as SPC-01-234.
In support of his petition, Salacop appended thereto
photocopies of random Voters Registration Record evidencing
the fraud and deceit, as well as affidavits tending to prove that
serious irregularities were committed in the conduct of the
elections in the subject precinct.
Petitioner denied the truth of the material allegations in
the petition and averred that it raised a PPC and that the
grounds would be proper in an Election Protest. The COMELEC
took cognizance of the petition and on February 11, 2002, issued
an Order directing the EO to bring to and produce before the
COMELEC Office in Manila the original VRRs of the
questioned precincts for technical examination.
In the same Order, the COMELEC declared that contrary
to petitioners claims, the petition did not allege a PPC, and
characterized the petition as one for the annulment of the
election or declaration of failure of election in the municipality,
a special action covered by Rule 26 of the COMELEC Rules of
Procedure. Hence, COMELEC set aside the docketing of the
petition as a special case (SPC) and ordered the re-docketing
thereof as a special action (SPA).
After the examination of the evidence submitted by the
petitioner, the COMELEC concluded that there were convincing
proof of massive fraud in the conduct of the elections in the four
(4) precincts that necessitated a technical examination of the
original copies of the CRRs and their comparison with the
voters signature and fingerprints. The COMELEC further noted
that since the lead of Macabago was only 124 votes vis--vis the
474 cotes of the contested precincts, the outcome of the petition
would adversely affect the result of the elections in the
Municipality.
Petitioner filed with the SC the instant special civil action
for certiorari under Rule 65 of the 1997 Rules of Civil Procedure,
as amended, praying for the reversal of the February 11, 2002
order of the COMELEC En Banc on the following issues:

ISSUES:
(a) Whether petitioners recourse to this Court under Rule 65
of the 1997 Rules of Civil Procedure, as amended, is in order;
and
(b) Whether the COMELEC acted without jurisdiction or
committed grave abuse of discretion amounting to excess or
lack of jurisdiction in taking cognizance of the petition of
private respondent and in issuing the assailed Order.

HELD:
FIRST ISSUEPetitioner avers that he was impelled to file
the instant petition without first filing with the COMELEC a
motion for reconsideration of its order because under the
COMELEC Rules of Procedure, a MR of an interlocutory order
of the COMELEC En Banc is a prohibited pleading and that the
COMELEC acted with grave abuse of discretion amounting to

12
excess or lack of jurisdiction in issuing the assailed order.
Salacop on the other hand, insists that under Rule 64 of
the 1997 Rules of Civil Procedure, a special civil action for
certiorari filed with this Court is proper only for the
nullification of a final order or resolution of the
COMELEC and not of its interlocutory order or resolution
such as the assailed order in this case.
The assailed order of the COMELEC declaring
Salacops petition to one for annulment of the elections or
for a declaration of a failure of elections in the
municipality and ordering the production of the original
copies of the VRRs for the technical examination is
administrative in nature (Canicosa v. COMELEC, 282
SCRA 512 (1997)). Rule 64, which is a procedural device
for the review of final orders, resolutions, or decision of
the COMELEC, does not foreclose recourse to the SC
under Rule 65 from administrative orders of said
Commission issued in the exercise of its administrative
function (Cabagnot v. COMELEC, 260 SCRA 503 (1996).

As a general rule, an administrative order of the
COMELEC is not a proper subject of a special civil action
for certiorari (Tupay Loong v, COMELEC, 305 SCRA
832 (1999)). But when the COMELEC acts capriciously
or whimsically with grave abuse of discretion amounting
to lack or excess of jurisdiction in issuing such an order,
the aggrieved party may seek redress from the SC via a
special civil action for certiorari under Rule 65 of the
Rules.

Chavez v. Commission in Elections 211 SCRA 315
(1992), the SC held that the resolution of the COMELEC in
deleting the name of a candidate in the list of qualified
candidates does not call for the exercise of the SCs
function of judicial review as the said action is
undoubtedly administrative in nature.

Salva v. Macalintal 340 SCRA 506 (2000), the SC held
that the issuance of the COMELEC of Resolution No. 2987
calling for a plebiscite held in the affected barangays,
pursuant to the provisions of Section 10 of RA 7160 is a
ministerial duty of the COMELEC and is part and parcel of
its administrative functions. It does not involve the
exercise of discretionary authority as well as an exercise of
its adjudicatory functions. Any question pertaining to the
validity of said resolution may well be taken in an ordinary
civil action before the trial courts.

Ma. Salvacion Buac, et. al., vs.
COMELEC/Cayetano, et. al. G.R. No. 155855, January
26, 2004. In thIS companion case relative to the Taguig
Plebiscite, it may be recalled that the SC ruled that
COMELEC has jurisdiction over plebiscite results as part
of its administrative functions to enforce and implement
all law relative to elections, initiative, referendum,
plebiscite and recall, the SC in ruling therein directed the
COMELEC to reinstate the petition to annul the results of
the Taguig Plebiscite and to decided it without delay.
The result of the revision committee was submitted
to the 2nd division for hearing but failed to render a
decision as the required number of votes among its
members could not be obtained. Consequently, pursuant
to Section 5(b) of Rule 3 of the COMELEC Rules of
Procedure, the case was elevated to the COMELEC en
banc for resolution.
Section 5. Quorum; Votes required. (b)
When sitting in divisions, two (2) members of a
Division shall constitute a quorum to transact
business. The concurrence of at leat two (2) members
of a Division shall be necessary to reach a decision,
resolution, order or ruling. If this required number is
not obtained, the case shall be automatically elevated
to the Commission en banc for decision.
COMELEC en banc issued the assailed Resolution
declaring and confirming the ratification and approval of
the conversion of the Municipality of Taguig into a highly
urbanized city. Cayetano filed the instant petition
contending that the revision of the P ballots cannot be
relied upon for the determination of the will of the
electorate and that many irregularities, fraud, and
anomalies attended the revision proceedings. It was held
that allegations of Cayetano are factual in nature which
would involve admissibility and sufficiency of evidence
presented during the revision proceedings before the
COMELEC. This cannot be done in the present special
civil action for certiorari under Rule 65 of the 1997 Rule of
Civil Procedure, as amended. Section 1 of the same rule
confines the power of the SC to resolve issues mainly
involving jurisdiction, including grave abuse of discretion
amounting to lack or excess of jurisdiction attributed to
the public respondent.
Nevertheless, the SC, in the interest of the residents and
voters of the City of Taguig still reviewed the evidence and
found that the basis of Cayetano was erroneous. The factual
findings of COMELEC supported by evidence, are accorded, not
only respect, but finality.

Bulaong v. COMELEC First Division, 220 SCRA 745 and
Soller v. Commission on Elections 339 SCRA 685 (2000), the
SC ruled that the COMELEC, sitting en banc, does not have the
requisite authority to hear and decide election cases including
pre-proclamation controversies in the first instance. This power
pertains to the divisions of the Commission. A decision of the
COMELEC is void, where the controversy is not first resolved by
a division.

Based on the proceedings of the Soller case, the petition with
the COMELEC assailed the trial courts order denying the
motion to dismiss of Saulong election protest which was
however not referred to a division but was instead, directly
submitted to the COMELEC en banc.

The SC held that the order denying a motion to dismiss is but an
incident of the election protest filed with the RTC which is
interlocutory as the denial does not end the trials courts task of
adjudicating the parties contentions and determining their
rights and liabilities as regards each other. The authority to
resolve a petition for certiorari involving incidental
issues of election protest falls within the division of the
COMELEC and not on the COMELEC en banc. It further
stressed, that if the principal case, once decided on the merits is
cognizable on appeal by a division of the COMELEC, then, there
is no reason why petitions for certiorari relating to incidents of
elections protest cases should not be first referred to a division
for resolution.

Canicosa vs. COMELEC 282 SCRA 512. Canicosa and Lajara
were candidates for Mayor in Calamba, Laguna were Lajera was
proclaimed winner. Canicosa filed with the COMELEC a
Petition to Declare Failure of Elections and to Declare Null and
Void the Canvass and Proclamation. (names of RV did not
appear on the list, padlocks were not self locking etc) which was
dismissed by the COMELEC en banc on the ground that the
allegations therein did not justify the declaration of failure of
elections.

Canicosa insists that it was error on the part of COMELEC
sitting en banc to rule on his petition as it should have first been
heard by a division. The SC held that the matter relating to
declaration of failure of elections or the allegations raised by
Canicosa did not involve an exercise of QJ or adjudicatory
functions. It involves an administrative function which pertains
to the enforcement and administration of all laws and
regulations relative to the conduct of elections.

Sec. 2 of Rule 3 of the COMELEC Rules of Procedure however
provide for exceptions when the COMELEC en banc may take
cognizance of cases at the first instance;
all other cases where the division is not authorized to
act;
declaring a postponement, failure or suspension of
elections;
where upon a unanimous votes of all the members of
a division, an interlocutory matter or issue relative to
an action or proceeding before it is decided to be
referred to the Commission en banc.

Garvida v. Sales 271 SCRA 767, under the COMELEC Rules of
Procedure, the jurisdiction over a petition to cancel a certificate
of candidacy on the ground that the candidate had made false
material representation in his certificate lies with the
COMELEC sitting in a division, not en banc. Cases before a
division may only be entertained by the COMELEC en banc
when the required number of votes to reach a decision,
resolution, order or ruling is not obtained in the Division.

Aruelo Jr. v. CA, October 20, 1993, the Court held that should
there be a conflict between a rule of procedure promulgated by
the COMELEC and a Rule of Court, the COMELEC Rule of
Procedure will prevail I f the case is brought before the
COMELEC and the Rules of Court if the election case is filed
with the Court.

Jamil vs. COMELEC 283 SCRA 349 (1997), When the
Commission en banc is equally divided in opinion, or the
necessary majority cannot be had, the case shall be reheard, and
if rehearing no decision is reached, the action or proceeding
shall be dismissed if originally commenced in the Commission;
in appealed cases, the judgment or order appealed from shall
stand affirmed; and in all incidental matters, the petition or
motion shall be denied. (Section 6, COMELEC Rules of
Procedure).

13

JUDICIAL POWERS OF THE COMELEC

By way of exception, Sec. 2(2) of Art. IX-C of the
Constitution grants to the COMELEC:

1. EXCLUSIVE ORIGINAL JURISDICTION over all
contests relating to the elections, returns and
qualifications of all elective regional, provincial and
city officials, and
2. APPELLATE JURISDICTION over all contests
involving elective municipal officials decided by trail
courts of general jurisdiction, or involving elective
barangay officials decided by trial courts of limited
jurisdiction. As anchored on this constitutional provision
and Sec. 9 RA 6679, a petition for review involving
elections contests among municipal or barangay elective
officials should be filed with the COMELEC and not with
the Court of Appeals, which has no jurisdiction to
entertain it.

Guieb vs. Fontanilla 247 SCRA 348 (1995) and Calucag
v. COMELEC 274 SCRA 405 the SC ruled that Section 9 of
RA 6679 which vests upon the RTC appellate jurisdiction
over election cases decided by municipal or metropolitan
trial courts is unconstitutional, and decisions of the latter
which are appealed to the RTC, which have no appellate
jurisdiction, are erroneously appealed and thus become
final.

POWER TO ISSUE WRITS OF CERTIORARI,
PROHIBITION AND MANDAMUS

Relampagos v. Cumba 243 SCRA 690 (1995), it was
held that the COMELEC is vested with the power to issue
writs of certiorari, prohibition and mandamus only in
aid of its appellate jurisdiction consistent with
Section 50 of BP 697 and Article 2(1) of the Constitution.

Carlos v. Angeles Supra, the SC declared that both the
SC and COMELEC has concurrent jurisdiction to issue
writs of certiorari, prohibition and mandamus over
decision of trial courts of general jurisdiction (RTC) in
election cases involving elective municipal
officials. The Court that takes jurisdiction first shall
exercise exclusive jurisdiction over the case. (Art. VIII 5(1)
1987 Constitution, Rule 65,Sec. 1)

Article IX-C Section 2(6) of the Constitution vests in the
COMELEC the power and function to investigate and
where appropriate, prosecute cases of violations of
election laws, including acts or omissions constituting
election frauds, offenses and malpractices.

POWER OF INVESTIGATION

COMELEC v. Noynay, July 9, 1998, the COMELEC
resolved to file an Information for violation of Section
261(i) of the OEC against certain public school officials for
having engaged in partisan political activities which was
filed by its Regional Director with the RTC presided by
Judge Noynay. The judge ordered the records of the cases
to be withdrawn and directed the COMELEC to file the
cases with the MTC on the ground that pursuant to
Section 32 of BP 129 as amended by RA 7691, the RTC has
no jurisdiction over the cases since the maximum
imposable penalty in each of the cases does not exceed 6
years imprisonment. The SC ruled that RA 7691 did not
divest the RTC of jurisdiction over election
offenses which are punishable with imprisonment
of not exceeding 6 years. The opening sentence of
Section 32, provides that the exclusive original jurisdiction
of Metropolitan Trial Courts, MTC and MCTC does not
cover those criminal cases which by specific provisions of
law fall within the exclusive jurisdiction of the RTC and of
the SB, regardless of the penalty prescribed therefore.

COMELEC v. Espanol 417 SCRA 554, it was ruled that
the COMELEC, thru its duly authorized legal officers
under Section 265 of the OEC, has the exclusive power to
conduct preliminary investigation of all election offenses
punishable under the OEC and to prosecute the same. The
acts of these deputies within the lawful scope of their
delegated authority are the acts of the COMELEC.

Garcia v. Commission on Elections 611 SCRA 55
Generally, the Court will not interfere with the finding of
probable cause by the COMELEC absent a clear showing of
grave abuse of discretion.

Pp. v. Inting July 25, 1990, the Supreme Court ruled that the
COMELEC is given exclusive authority to investigate and
conduct preliminary investigations relative to commission of
election offenses and prosecute the same. A preliminary
investigation conducted by the Provincial Election Supervisor
involving an election offense does not have to be coursed
through the Provincial Prosecutor before the RTC may take
cognizance of the investigation and determine WoN probable
cause exist to issue a warrant of arrest. If the Provincial
Prosecutor performs any role at all as regards the prosecution of
an election case, it is by delegation or that he was deputized by
the COMELEC.

Faelnar v. People 331 SCRA 429, in cases where the State
Prosecutor, or Provincial or City Prosecutor exercises the power
to conduct preliminary investigation of election offense cases
and after the investigation submits its recommendation to the
COMELEC, the issue of probable cause is already resolved. The
proper remedy to question the said resolution is to file
an appeal with the COMELEC and the ruling of the
COMELEC on the appeal would be immediately final
and executory. However, if the conduct of the preliminary
investigation of the complaint for an election offence is
conducted by the COMELEC, the investigation officer prepared
its recommendation to the Law Department of the COMELEC
which department in turn makes its recommendation to the
COMELEC en banc on whether there is probable cause to
prosecute. It is the COMELEC en banc that determines
the existence of probable cause. The proper remedy of
the aggrieved party is to file a Motion for
Reconsideration of such resolution. This effectively
allows for a review of the original resolution, in the same
manner that the COMELEC on appeal, or motu propio, may
review the resolution of the State prosecutor, or Provincial or
city fiscal. (Take note that since this is an election offense a
Motion for Reconsideration of an En Banc resolution is
allowed.)

Herman Tiu Laurel vs. RTC Judge of Manila Br. 10 and
COMELEC 323 SCRA 778, the SC in upholding the power of
COMELEC to prosecute cases of violations of election laws
further explained that there are 2 ways through which a
complaint for election offenses may be initiated.

(1) it may be filed by the COMELEC motu propio or
(2) it may be filed via written complaint by any citizen of the
Philippines, candidate, registered political party,
coalition of political parties or organizations under the
party-list system or any accredited citizen arms of the
commission. Motu propio complaints may be signed by
the Chairman of the COMELEC and need not be
verified. But those complaints filed by parties other
than the COMELEC must be verified and supported by
affidavits and other evidence.

The complaint shall be filed with the COMELEC Law
Department or with the offices of the ER, PES or RED, or the
State Prosecutors, provincial or city prosecutors. Whether
initiated motu propio or filed with the COMELEC by any party,
the complaint shall be referred to the COMELEC Law
Department for investigation. Upon the direction of the
Chairman, the PI may be delegated to any lawyer of the
Department, any RED or PES, or any COMELEC lawyer.

COMELEC v. Silva Feb. 10, 1998, the SC settled the issue as
to whether the Chief State Prosecutor, who was designated by
the COMELEC to prosecute election cases, has the authority to
decide WoN to appeal from the orders of dismissal of the RTC.
The authority belongs to the COMELEC and not the
prosecutor as the latter derive its authority from the
COMELEC and not from their offices. Propriety dictates,
that if the prosecutor believes, after the conduct of the PI, that
no probably cause warrants the prosecution of the accused who
have allegedly violated Sec. 27 of RA 6646 (tampering of
certificate of canvass), the matter would have been discussed
with the COMELEC and if the latter disagrees, seek permission
to withdraw from the case.

Dino vs. Olivares 607 SCRA 251 (Dec, 4, 2009). The SC held
that being mere deputies or agents of the COMELEC (with
continuing authority), provincial or city prosecutors deputized
by it are expected to act in accord with and NOT contrary to or
in derogation of its resolutions, directives or orders in relation
to election cases that such prosecutors are deputized to
investigate and prosecute. They must proceed within the lawful
scope of their delegated authority.
Such authority may be revoked or withdrawn anytime by
the COMELEC, either expressly or impliedly, when in its
judgment such revocation or withdrawal is necessary to protect

14
the integrity of the process to promote the common good,
or where it believes that successful prosecution of the case
can be done by the COMELEC.
When the COMELEC en banc directed the City
Prosecutor of Paranaque to transmit the entire records of
the election offense case, it had the effect of
SUSPENDING THE AUTHORITY of the City Prosecutor.
Hence, the filing of the amended information and the
amended information themselves, is declared void and of
no effect.

Kilosbayan vs. COMELEC 280 SCRA 892, Kilosbayan
filed a letter-complaint with the COMELEC against
incumbent officials running for public elective office for
violation of Sec. 261 of the OEC alleging illegal
disbursement of public funds and submitting as evidence
to support the complaint, published writings in
newspapers without any additional evidence to support
the newspaper articles arguing that it was the COMELECs
constitutional duty to prosecute election offenses upon
any information of alleged commission of election
offenses. The COMELEC dismissed the complaint there
being no probable cause found. The SC held that it is
not the duty of COMELEC to search for evidence
to prove an election complaint filed before it. The
task of COMELEC as investigator and prosecutor
is not the physical searching and gathering of
proof in support of the alleged commission of an
election offense. The complainant still has the
burden to prove his complaint.

Bernardo vs. Abalos, G.R. No. 137266, December
5, 2001 In an election offense case, a motion for
reconsideration of the decision of the COMELEC en banc
should be filed first before filing a certiorari petition with
the Supreme Court.

In this case a criminal complaint was filed against Abalos
Sr., et. al. for violation of Section 261 of the OEC. The
COMELEC Law Department conducted the PI which
submitted its findings to the COMELEC en banc
recommending that the complaint be dismissed for
insufficiency of evidence. The COMELEC en banc
resolution was assailed before the SC. The SC ruled that
petitioners did not exhaust all the remedies available to
them at the COMELEC level but not seeking a
reconsideration of the en banc resolution as required
under Section 1 Rule 13 of the COMELEC rules of
procedure.

The COMELEC under Sec. 2(4) of Article IX-C
exercises direct and immediate supervision and
control, during the election period, over national
and local officials or employees including
members of any national or local law enforcement
agency or instrumentality of the government
required by law to perform duties relative to the
conduct of elections and appoint deputies for the
purpose of ensuring an HOPE-FRECRE. The
power of the COMELEC over deputized offices
under Sec 2(6) covers both criminal and
administrative cases.

POWER TO SUPERVISE ELECTION OFFICERS AND
DEPUTIES DURING ELECTION PERIOD

Pursuant to Section 2(4) of the Article IX-C, COMELEC,
during the election period, exercises direct and immediate
supervision and control over national and local officials or
employees including members of any national or local law
enforcement agency or instrumentality of the government
required by law to perform duties relative to the conduct
of elections and appoint deputies for the purpose of
ensuring an HOPE-FRECRE. The power of the COMELEC
over deputized offices under Section 2(8) covers both
criminal and administrative cases.

Tan v. COMELEC 237 SCRA 353, Tan was the
incumbent City prosecutor of Davao City who was
designated by the COMELEC as Vice-Chairman of the
CBOC for the 1992 Synchronized National and Local
Elections were Garcia and Alterado were contenders for
member of the HR for the Second Legislative District.
Garcia was proclaimed winner and Alterado filed an
election protest with the HRET, criminal case for
falsification against the CBOC with the Ombudsman and
with the COMELEC an Administrative case for
Misconduct, Neglect of duty, Gross Incompetence and
Acts Inimical to the Service which was the only case
pending after the HRET and Ombudsman dismissed the
cases filed with it. Tan moved to dismiss the
administrative complaint with the COMELEC for lack of
jurisdiction on the premise that he is under the executive
department (DOJ) which was denied by COMELEC. It was
held that the administrative case against Tan is in
relation to the performance of his duties as member of
the CBOC and not as prosecutor and hence, cannot
claim immunity from the power of the COMELEC.
However, under Section 2(8), the power of the COMELEC in
this instance is limited to merely issuing a
recommendation to the property authority, the
Secretary of the DOJ, in this case, who shall take
appropriate action, either to suspend or remove from
office the officer or employee, who may after due
process, be found guilty of violation of election laws or
failure to comply with instructions, order, decisions or
rulings of the COMELEC.

POWER TO DECLARE A POSTPONEMENT, FAILURE OR
ANNULMENT OF ELECTIONS AND CALL FOR SPECIAL
ELECTIONS IN ACCORDANCE WITH SECTIONS 5,6, & 7
OF THE OEC IN RELATION TO SEC. 4 OF RA 7166.

The grounds for declaring a postponement of elections is
provided under Sec. 5 of the OEC, namely; when for any
serious cause such as violence, terrorism, loss or
destruction of election paraphernalia or records, FM
and other analogous circumstances of such a nature
that the holding of a HOPE-FRECRE should become
impossible in any political subdivision, the
Commission en banc may motu propio or upon a
verified petition by any interested party, and after due
notice and hearing, whereby all interested parties are
afforded equal opportunity to be heard, shall postpone
the election to a date which is reasonably close to the
date of the election not held, suspended or which
resulted to a failure to elect but not later than 30 days
after the cessation of the cause for such postponement
or suspension of the election or failure to elect.

Section 5 of the OEC provides for the grounds for declaring a
postponement of elections that is when for:
1. Any serious cause such as violence.
2. Terrorism;
3. Loss or destruction of election paraphernalia or
records;
4. Force majeure; and
5. Other analogous circumstances of such a nature that
the holding of a HOPE-FRECRE should become
impossible in any political subdivision.

Under these circumstances, the Commission en banc may
motu proprio or upon a verified petition by any interested
party, and after due notice and hearing, whereby all interested
parties are afforded equal opportunity to be heard, shall
postpone the election to a date which is reasonably close to the
date of the election not held, suspended or which resulted to a
failure to elect but not later than 30 days after the cessation of
the cause of such postponement or suspension of the election or
failure to elect.

Section 6, on the other hand, prescribes the conditions for the
exercise of the power to declare a Failure of Elections.

Canicosa vs. COMELEC 282 SCRA 512 (1997) The
power of COMELEC to declare a failure of elections involves
only the exercise of administrative function. Therefore,
COMELEC is not mandated to hear and decide cases first by
Division and then, upon motion for reconsideration, by the
COMELEC en banc which is only applicable in its exercise of its
adjudicatory or quasi judicial functions.

Canicosa v. COMELEC, Sison v. COMELEC 304 SCRA 170
and Carlos v. Angeles 346 SCRA 571, the Supreme Court,
conformably with Sec. 6 of the OEC stressed that there are only
THREE (3) INSTANCES WHERE A FAILURE OF
ELECTIONS MAY BE DECLARED THAT IS, IF, ON
ACCOUNT OF FM, VIOLENCE TERRORISM, FRAUD,
OTHER ANALOGOUS CAUSES THE

1) Election in any polling place has not been held on
the date fixed by law
3) Or had been suspended before the hour fixed by
law for the closing of the voting
4) Or after the voting and during the preparation and
transmission of the election returns or the custody
or canvass thereof, such election results in a
failure to elect.

TWO CONDITIONS MUST FURTHER CONCUR TO
DECLARE A FAILURE OF ELECTIONS:


15
(1) No voting has taken place in the
precincts concerned on the date
fixed by law or, even if there was
voting, the election nevertheless
resulted in a failure to elect and
(2) The votes not cast would affect the
results of the elections.

Carlos v. Angeles By revision of the ballots (as an
incident in an election protest case), the trial court found
in a final tally that the valid votes obtained by the
candidates were as follows: Carlos 83,609 Serapio
66,602 or a winning margin of 17,007 votes in favor of
Carlos and winner in the May 11, 1998 elections.

However, the trial court set aside the final tally of votes
because of what it perceived to be significant badges
of fraud attributable to the protestee which are as
follows: 1) failure of the keys turned over by the City
Treasurer to the trial court to fit the padlocks on the ballot
boxes that compelled the court to forcibly open the
padlocks. The trial court concluded that the real keys
were lost or the padlocks substituted pointing to possible
tampering of the contents of the ballot boxes (mere
inability of the keys to fit into the padlocks does not affect
the integrity of the ballot). 2) Seven (7) ballot boxes were
found empty, thus, the trial court concluded that there
were missing ballots and missing election returns.

Coquilla V. COMELEC, supra, the SC stressed that
what is common in these three instances is the resulting
failure to elect. In the first instance, no election was held,
while in the second, the election is suspended. In the third
instance, circumstances attending the preparation,
transmission, custody or canvass of the election returns
caused a failure to elect. And, the term failure to elect
means nobody emerged as a winner.

The COMELEC, based on the verified petition by an
interested party and after due notice and hearing, may call
for the holding or continuation of the election not held,
suspended or which resulted in a failure to elect on a date
reasonably close to the date of the election not held,
suspended or which resulted in a failure to elect but not
later than 30 days after the cessation of the cause of such
postponement or suspension of the election or failure to
elect.

PROCEDURAL RULES

On the basis of a verified petition by any interested party
and after due notice and hearing, the COMELEC may call
for the holding or continuation of the election not held,
suspended or which resulted in a failure to elect but not
later than 30 days after the cessation of the cause of such
postponement or suspension of the election or failure to
elect.

Sanchez v. COMELEC 193 SCRA 849 - Sec. 4 of RA
7166 (An Act Providing for the synchronized national and
local elections stated that any declaration of
postponement, failure of election and calling for a special
elections as provided in Section 5,6, & 7 shall be decided
by the Commission sitting en banc by a majority vote of its
members. This power is exclusively vested in the
COMELEC.

Loong v. COMELEC 257 SCRA 1, a petition to declare
failure of elections/annulment of elections on the ground
of massive fraud in some municipalities was filed before
proclamation. COMELEC dismissed the petition for
having been filed out of time since it was filed only after
petitioners realized that the annulment of election will
wipe out their lead.
HELD: It was ruled that the COMELEC Resolution
dismissing the petition was arbitrary as no law provided
for a reglementary period within which to file a petition
for annulment of elections if there is no proclamation yet.

Canicosa v. COMELEC, 282 SCRA 512, Canicosa filed
with the COMELEC a Petition to declare failure of
elections and to declare null and void the canvass and
proclamation based on the following grounds (names of
the Registered Voters did not appear on the list, padlocks
were not self locking among other) which was dismissed
by the COMELEC en banc on the ground that the
allegations therein did not justify the declaration of failure
of elections.
Canicosa insists that it was an error on the part of the
COMELEC sitting en banc to rule on his petition as it
should have first been heard by a division. The SC held
that the matter relating to the declaration of failure of elections
or allegations raised by Canicosa did not involve an exercise of
quasi-judicial or adjudicatory functions. It involves an
administrative function which pertains to the enforcement and
administration of all laws and regulations relative to the
conduct of elections.

Biliwang v. COMELEC, June 29, 1992 SC ruled that
COMELEC can annul an election by mandate of the extensive
powers granted to it under the 1987 Constitution to enforce
and administer all laws relative to the conduct of an elections.

Pena v. HRET, 270 SCRA 270, the SC, however, stressed that
such power should be exercised with greatest care as it involves
the free and fair expression of the popular will. For this
purpose, the petitioner must be able to show proof that:
(1) the illegality has affected more than 50% of the votes
cast; and
(2) that the good votes cannot be distinguished from the
bad votes.

Pasandalan v. COMELEC, et. al. G.R. No. 150312 July 18,
2002, the SC held that a petition for declaration of failure
of elections is an extraordinary remedy and
therefore a petition for declaration of failure of
elections must specifically allege the essential grounds
that would justify the same. Otherwise, the COMELEC can
dismiss outright the petition for lack of merit and no grave
abuse of discretion can be attributed to it in such case because
the COMELEC must exercise with utmost circumspect the
power to declare a failure of election to prevent disenfranching
voters and frustrating the electorates will.

Pasandalan filed a petition for declaration of failure of election
on the ground that while voting was going on, Cafgus
indiscriminately fired their firearms causing the voters to panic
and leave the polling places without casting their votes. In
taking advantage of the situation, the supporters of his
opponent took the official ballots and filled them up with his
opponents name and further, that the BEIs failed to affix their
initials at the back of several official ballots. Pasandalan, on the
basis of the affidavits of his own poll watchers, insists that a
technical examination of the official ballots in the contested
precincts be made which would show that only a few persons
wrote the entries, citing the case of Typoco v. COMELEC 319
SCRA 498 and Basher v. COMELEC 330 SCRA 736. The
COMELEC dismissed the petition.

The COMELEC is not mandated to conduct a technical
examination before it dismisses a petition for nullification of
election when the petition is, on its face, without merit. In the
case of TYPOCO vs. COMELEC 319 scar 498, petitioner
Typoco buttressed his petition with independent evidence that
compelled the COMELEC to conduct a technical examination of
the questioned returns. Typoco filed a Motion to Admit
Evidence to prove that a substantial number of election returns
were manufactured and claimed that the returns were prepared
by only one person based on the report of a licensed examiner of
questioned documents who examined copied of the election
returns. Pasandalan failed to attach independent and objective
evidence other than the self-serving affidavits of his own poll
watchers.

In Basher vs. COMELEC 330 SCRA 736, the SC held that the
fact that an election is actually held prevents as a rule, a
declaration of failure of elections, but the Court, however, can
annul an election if it finds that the election is attended with
patent and massive irregularities and illegalities. In this case,
after a series of failed elections during the 1997 Barangay
Elections, the election was reset to 30 august 1997. Due to the
prevailing tension in the locality, the voting started only at
around 9p.m. and lasted until the early morning of the following
day. Basher filed a petition for the nullification of the elections
which wad dismissed by the COMELEC on the ground that
actual voting had taken place. The SC overturned the
COMELEC ruling because the election was unauthorized and
invalid. The electorate was not given sufficient notice that the
election would push through after 9pm of the same day.
Moreover, the voting did not comply with the procedure laid
down by the COMELEC in its Resolution.

in Mitmug v. COMELEC, 230 SCRA 54, the SC ruled that the
COMELEC could dismiss outright a petition for nullification of
election if it is plainly groundless and the allegations therein
could be better ventilated in an election protest. In Banaga,
Jr. v. COMELEC 336 SCRA 701 on the other hand, it was
ruled that the fact that a verified petition has been filed does not
mean that a hearing on the case should first be held before the
COMELEC can act on it. The petition must show on its face that
the conditions necessary to declare a failure of elections are
present.


16
Ampatuan et. al. v. COMELEC/Candao, et. al.,
G.R. No. 149803 January 31, 2002, private respondents
filed a petition for declaration of failure of elections in
several municipalities of Maguindanao. While the hearing
on the said petition was still pending, the COMELEC
proclaimed the petitioners as winners for the position of
Governor, vice-governor and board members. Thereafter,
the COMELEC issued an Order directing the continuation
of the hearing on the failure of elections and issued an
order outlining the procedure to be followed in the
conduct of the technical examination.

Petitioners, relying on the case of Typoco, Jr. v.
COMELEC, contended that by virtue of their
proclamation, the only remedy left for private respondents
is to file an election protest, in which case, original
jurisdiction lies with the regular courts and that the
COMELEC no longer has jurisdiction to conduct a
technical examination as it would defeat the summary
nature of a petition for declaration of failure of elections
citing several rulings that an election protest is the proper
remedy for a losing candidate after the proclamation of
the winning candidates.

ISSUE: Whether the COMELEC was divested of its
jurisdiction to hear and decide a petition for declaration of
failure of elections after the winners have already been
proclaimed.

HELD: The fact that a candidate proclaimed has
assumed office does not deprive the COMELEC of
its authority to annul any canvass and illegal
proclamation. In this case, it cannot be assumed that
the proclamation of petitioners was legal precisely because
the conduct by which the elections were held was put in
issue by respondents in their petition for annulment of
elections results and/or declaration of failure of elections.
The cases relied upon by the petitioners that an
election protest is the proper remedy for a losing
candidate after proclamation of the winning
candidate involved pre-proclamation
controversies.

The SC made reference to its ruling in Loong v.
COMELEC, 257 SCRA 1, that a pre-proclamation
controversy is not the same as an action for annulment of
election results, or failure of elections. In pre-
proclamation cases, the COMELEC is restricted to an
examination of the election returns on their face and is
without jurisdiction to go beyond or behind them and
investigate election irregularities. The COMELEC is duty-
bound to investigate allegations of fraud, terrorism,
violence and other analogous causes in actions for
annulment of election results or for declaration of failure
of elections conformably with the OEC.

Accordingly, the COMELEC, in the case of actions
for annulment of election results or declaration of
failure of elections, may conduct a technical
examination of election documents and compare
and analyze voters signatures and thumbprints in
order to determine WoN the elections had indeed
been free, honest and clean.

Typoco Jr. vs. COMELEC, the SC held that the COMELEC
did not commit grave abuse of discretion in dismiss the
petition for declaration of elections as the allegations
therein did not justify a declaration of failure of elections
unlike in this present case, where respondents
exhaustively alleged massive fraud and terrorism, if
proven, could warrant a declaration of failure of elections.

Biliwang v. COMELEC June 29, 1992 - There is no
provision which grants to the COMELEC the power to
annul an election. But the SC in this case that COMELEC
can annul an election by mandate of the extensive powers
granted to it under the 1987 Constitution to enforce and
administer all laws relative to the conduct of an election.

Pea v. HRET 270 SCRA 270 the SC however stressed,
that should power should be exercised with greatest care
as it involves the free and fair expression of the popular
will. For this purpose, the petitioner must be able to show
proof that (1) the illegality has affected more than 50% of
the votes case and (2) that the good votes cannot be
distinguished from the bad votes.

Hassan v. COMELEC 264 SCRA 125, the SC provided
for concurrence of two pre-conditions for declaring a
failure of elections and to justify the calling of a special
elections - (1) that no voting has been held in any precinct
or precincts because of FM, violence or terrorism and (2)
that the votes not cast therein is sufficient to affect the results of
the elections.

Borja, Jr. v. COMELEC 260 SCRA 604, a petition for
declaration of failure of elections and to nullify the canvass and
proclamation was filed by Borja wherein he alleged that there
was lack of notice of the date and time of canvass, there was
fraud in the conduct of the elections as several voters were
disenfranchised, presence of flying voters and unqualified
members of the BEI. The COMELEC dismissed the petition
ruling that the grounds relied upon by Borja were grounds
proper only in an election contest. SC upheld the decision of the
COMELEC.

Sardea v. COMELEC August 17, 1993, it was ruled that the
fact that copies of the ER for the MBC were lost and destroyed is
not one of the causes to warrant a failure of elections
considering that voting actually took place and there were other
valid ER which existed which can be used in the canvassing of
the votes. Besides, it was also found that the incident did not
affect the result of the elections.

Balindong v. COMELEC 260 SCRA 494, the SC ruled that
the mere fact that the transfer of polling place was not made in
accordance with law does not warrant a declaration of failure of
election and the annulment of the proclamation of the winning
candidate, unless the number of votes not cast will affect the
result of the election.

CALLING OF SPECIAL ELECTIONS/REGISTRATION OF
VOTERS DISCRETIONARY

Bulaong v. COMELEC 220 SCRA 745, it was ruled that the
calling of a special election is discretionary on the part of the
COMELEC and being discretionary, the COMELEC cannot be
compelled by mandamus to call for a special elections
considering that mandamus is a remedy available only to
compel to the doing of an act specifically enjoined by law as a
duty and not in the exercise of discretion.

Lucero vs. COMELEC 235 SCRA 280, the Court held that in
fixing the date of the special elections in case of
postponement or failure of elections, the COMELEC
should ascertain that
(1) it should not be later than 30 days after the cessation of the
cause of the postponement or suspension of the election or
the failure to elect and
(2) it should be reasonably close to the date of the election not
held, suspended or which resulted in the failure to elect.
In this case, the SC upheld the validity of holding the special
elections more than one year from the date of the elections
stating that the same is still considered reasonably closed to the
date of the elections not held notwithstanding the fact that the
term of the elective official concerned is only 3 years and that
the delay was not attributable to the fault of the voters of the
precinct concerned.

Polala Sambarani. Et al., v. COMELEC, GR 160427,
September 15, 2004, this transpired during the synchronized
barangay and SK elections in 2002 and the holding of a special
elections that failed in 5 barangays. The COMELEC refused to
hold another special elections explaining that it is no longer in a
position to call for another special elections considering that
Section 6 of the OEC provides that special elections shall be
held on a date reasonably close to the date of elections not held
but not later than 30 days after the cessation of the cause of
such postponement. The COMELEC noted that more than 30
days had elapsed since the failed election.
COMELEC contend that to hold another special elections
in these barangays will not only be tedious and cumbersome,
but a waste of its previous resources. The COMELEC left to the
DILG the process of appointing the barangay captain and
barangay kagawads as well as the SK chairman and kagawads in
these barangays in accordance with the LGC.

ISSUE: whether or not the COMELEC acted with grave abuse
of discretion amounting to lack of jurisdiction in
denying/refusing to call another election

HELD: While the SC stressed that the Constitution gives the
COMELEC broad powers to enforces and administer all laws
rules and regulations relative to the conduct of I, O, R, E and R,
COMELEC anchored its refusal to call another special election
on the last portion of Section (on a date reasonably close to the
date of the elections not held, suspended, or which resulted in
the failure to elect. The prohibition on conducting special
elections after 30 days from the cessation of the cause of the
failure of elections is NOT absolute. It is directory, not
mandatory, and the Comelc possess residual power to conduct
special elections even beyond the deadline prescribed by law.

17
The deadline in Section 6 cannot defeat the right of
suffrage of the people as guaranteed by the Constitution.
The COMELEC erroneously perceived that the deadline in
Section 6 is absolute.
The SC referred to Section 45 of the OEC which
specifically deals with the election of barangay officials.
Unlike Section 6, Section 45 does not state special
elections should be held on a date reasonably close to the
date of the elections not held. Instead, Section 45 states
that special elections should be held within 30 days from
the cessation of the cause for postponement. Logically,
special elections could be held anytime, provided the date
of the special elections within 30 days from the time the
cause of postponement has ceased. The SC further ruled
that the reasons that COMELEC posed in refusing to hold
a special election is void (erroneous interpretation of the
law and the perceived logistical, operational and financial
problem).

Akbayan, et. al. v. COMELEC and Benito v. the
Chairman and Commissions of COMELEC, March
26, 2001, the petitioners seek to direct the COMELEC to
conduct a special registration before May 14, 2001 General
Elections, of new voters ages 18 to 21 contending that
around 4M youth failed to register on or before December
27, 2000, the deadline set by COMELEC under RA 8189.
The COMELEC resolved to deny the request to conduct a
two-day additional registration of new voters on February
18 & 18, 2001 for the reason that it would be operationally
impossible to accomplish the same within the time left.

The SC held that the COMELEC did not commit grave
abuse of discretion in denying the request for the conduct
of a special registration and neither can COMELEC be
compelled by mandamus to call the elections as the
determination on WoN the conduct of a special
registration of voters is feasible, possible or practical
within the remaining period before the actual date of
election, involves the exercise of discretion and thus,
cannot be controlled by mandamus.

1995 BQ: Due to violence and terrorism attending the
casting of votes in a municipality in Lanao del Sur during
the last 8 May 1995 elections, it became impossible to hold
therein free, orderly and honest elections. Several
candidates for municipal positions withdrew from the
race. One candidate for Mayor petitioned the COMELEC
for the postponement of the elections and the holding of
special elections after the causes of such postponement or
failure of elections shall have ceased.

1) How many votes of the COMELEC Commissioners
may be cast to grant the petition?

Suggested Answer: According to Section 7, Article IX-A of
the 1987 Constitution, the Commission on Elections shall
decide by a majority vote of all its members in any
case or matter brought before it. In Cua v.
COMELEC 156 SCRA 582, the SC stated that a two-to-one
decision rendered by a Division of the COMELEC and a
three-to-two decision rendered by the COMELEC en banc
was valid where only five members took part in deciding
the case.

2) A person who was not a candidate at the time of the
postponement of the elections decided to run for an
elective position and filed a certificate of candidacy prior
to the special elections. May his certificate of candidacy
be accepted?

Suggested Answer: No, his certificate of candidacy cannot
be accepted. Under Section 75 of the OEC, as a rule in
cases of postponement or failure of election no
additional certificate of candidacy shall be
accepted.

3) Suppose he ran as a substitute for a candidate who
previously withdrew his candidacy, will answer be the
same.

Suggested Answer: No, the answer will be different.
Under Section 75 of the OEC, an additional certificate
of candidacy may be accepted in cases of
postponement or failure of election if there was a
substitution of candidates; but the substitute must
belong to and must be endorsed by the same
party.

LIMITATIONS ON THE POWER OF THE PRESIDENT
TO GRANT PARDON, AMNESTY, PAROLE OR
SUSPENSION OF SENTENCE

Article IX-C, Section 5 provides that the President cannot,
without the favorable recommendation of the COMELEC grant
pardon, amnesty, parole or suspension of sentence in cases
involving violation of election laws and violation of election
rules and regulations.

POWER TO REGISTER POLITICAL PARTIES AND ENLIST
CITIZENS ARM

+ Article IX-C, Sec. 1 (5), authorizes the Comelec under the
Constitution to Register, after sufficient publication, political
parties, organizations, or coalitions which, in addition to other
requirements, must present their platform or program of
government; and accredit citizens arms of the Commission on
Elections.
+ Section 60 of the OEC/Section 1, Rule 32 of the
Comelec Rules of Procedure provides that any group
pursuing the same political ideals may register with the
Comelec by filing a verified petition with its Law Department
duly verified by its President and Secretary-General, or any
official duly authorized to do so under its Constitutions and by-
laws.
+ Before Comelec takes action, the Comelec shall first verify,
through its field offices, the status and capacity of the petitioner
and the veracity of the allegations in the petition. (Sec. 4, Rule
32). After the verification process, the Petition will be
published with the Notice of Hearing.
+ Once registered the political party is issued a Certificate of
Registration (Sec. 7):
(1) acquires juridical personality;
(2) be informed of the parties existence and ideals;
(3) it identifies the party and its officers for purposes of
regulation by the Comelec.
+ It is however, not necessary for purposes of the electoral process
that an organization be a political party.

Limitations on Registration
Religious sectors are prohibited to be registered for the
purpose of the electoral process which is made in the spirit
of separation of church and state and intended to prevent
churches from wielding political power.
Does not extend to organizations with religious affiliations
or to political partied which derive their principles from
religious beliefs (ban on Catholic Church, Iglesia ni Kristo
or the muslim denomination).
Those who seek to achieve their goals through unlawful
means
Those which refuse to adhere to the Constitution
Those which are supported by any foreign government
(Section 2(5), Article IX-C)

Cancellation of Registration (Sec. 8)
+ Upon verified complaint of any interested party, or motu propio
by the Commission, the registration of any political party
coalition of political parties or organizations under the party-list
system may be cancelled after due notice and hearing on the
following grounds:
(a) Acceptance by the political party, coalition of political
parties, or organizations or any of its candidates, of
financial contributions from foreign governments and/or
their agencies for activities related to elections.
(b) Violation of laws, rules or regulations relating to elections,
plebiscites, referenda or initiative.
(c) Untruthful statements in its petition for registration
(d) The said political party, coalition of political parties or
organization has become a religious sect or denomination,
is pursuing its goals thru violence or other unlawful means,
is refusing to adhere to or uphold the Constitution of the
Philippines, or is receiving support from any foreign
government;
(e) Failure to comply with applicable laws, rules or regulations
of the Commission
(f) Failure to field official candidates in the last two preceding
elections or failure of their candidates to obtain at least five
(5) per centum of the votes cast in the last two preceding
elections.

Liberal Party vs. Commission on Elections 620 SCRA
393 (May 6, 2010), the SC distinguished REGISTRATION and
ACCREDITATION of a political party. The root of this petition
before the SC is the NP-NPC petition before the COMELEC for
registration as a coalition and accreditation as the dominant
minority party. While the Comelec En Banc claimed
jurisdiction over the registration of coalitions and has in fact
decreed NP-NPCs registration, the Comelec however did NOT
rule on the accreditation aspect. The registration of a
coalition and the accreditation of a dominant minority
party are two separate matters that are substantively
distinct from each other.

18
Section 2(5), Article XI-C and Rule 32 of
the CRP regulate the registration of
political parties, organizations or
coalition of political parties. Accreditation
as a dominant party is governed by Comelec
Resolution No. 8752, Section 1 of which states
that the petition for accreditation shall be filed
with the Clerk of the Commission who shall
docket it as an SPP (DM) case. This was the
manner the NP-NPC was docketed.
Registration of political parties is a special
proceedings assigned to a Division for handling
under the CRP. No similar clear cut rule is
available to a petition for accreditation as a
dominant party.
Registration must first take place before a
request for accreditation can be made.
Accreditation is the next natural step to follow
after registration.
Hence, when the Comelec En Banc, resolved the
registration of the NP- NPC the case is terminated and
ripe for review by the SC via a Petition for Certiorari. The
issue with respect to accreditation is a separate issue
which is treated in a separate proceeding. As ruled, a
Motion for Reconsideration of a Resolution of the Comelec
En Banc is a prohibited pleading (Sec. 1(d) Rule 13).
The remedy available to a party is a petition for certiorari
with the SC pursuant to Article IX-A, Sec. 7 and Rule 65 of
the Rules of Court.

Laban ng Demokratikong Pilipino, represented by
its Chairman Eduardo J. Angara v. Comelec at. al
(423 SCRA 665)
FACTS: The LDP informed the Comelec by way of
Manifestation that only the Party Chairman or his
authorized representative may endorse the COC of the
partys official candidates; the Representative Butch
Aquino was on indefinite forced leave and in the
meantime Ambassador Enrique Zaldivar was designation
Acting Secretary General.
Aquino in a comment alleged that the Party
Chairman does not have the authority to impose
disciplinary sanctions on the Secretary General and that
the Manifestation filed has no basis praying that Comelec
disregards the same. Comelec issued an order requiring
the parties to file verified petition. Pending resolution, a
Certificate of Nomination of Senator Panfilo Lacson as
LDP candidate for President was filed with the Comelec
which was signed by Representative Aquino as LDP
Secretary General.
Comelec issued a Resolution granting the petition
with LEGAL EQUITY for both Petitioner and Oppositor
(Angara Wing and Aquino Wing).

ISSUE: whether or not Comelec gravely abused its
discretion in issuing the subject Resolution

RULING: Comelec gravely abused its discretion. The
issue is simply Who as between the Party Chairman and
Secretary General has the authority to sign certificates of
candidacy of the official candidates of the party. While it
has jurisdiction to rule upon questions of party identity
and leadership as an incident to its enforcement powers it
was well within its competence to inquire into which party
officer has authority to sign and endorse certificate of
candidacy of partys nominees. And to resolve the issue
raised, the Comelec need only to turn to the Party
Constitution and election laws. The Comelec Resolution is
INDECISION in the guise of equity.
What is worse is that, Comelec divided the LDP into
wings both having authority to nominate candidates for
every elective position. Consequently, Comelec planted
seeds of confusion among the electorate who are apt to be
confounded by two candidates from a single political
party. This was not only a disservice to the opposition but
to the voting public as well as its Resolution facilitated
rather than forestalled, the division of the minority party.

Atienza, Jr. et. Al. vs Comelec 612 SCRA 761
Authority of Comelec over intra- party disputes is limited.
The Comelec may intervene in disputes internal to a party
only when necessary to the discharge of its constitutional
functions. The validity or invalidity of Atienza et. Al.s
expulsion was purely a membership issue that had to be
settled within the party. It is an internal matter over
which Comelec has no jurisdiction.

Damasen vs. Tumamao 613 SCRA 49 (2010) the
discretion of accepting members to a political party is a
right and a privilege, a purely internal matter, which the
Court cannot meddle in. The reason behind the right given
to a political party to nominate a replacement where a
permanent vacancy occurs in the Sanggunian is to maintain the
party representation as willed by the people in the election (Sec.
45 (b) of RA 7160 Rule on Succession and as held in Navarro v.
CA 672 SCRA 355 (2010). Damasen was not a bonafide
member. Tumamao was husband of the VM who died).

PARTY-LIST REPRESENTATION

+ Under RA 7941, THE PARTY-LIST SYSTEM is a
mechanism of the proportional representation in the
election of representatives to the House of
Representatives from national, regional and sectoral
parties or organizations or coalitions thereof
registered with the COMELEC to enable Filipinos
belonging to the marginalized and underrepresented
sectors to contribute legislation that would benefit
them. ]
+ Party list representation shall constitute 20% of the total
number of representatives, by selection or election from
the labor, peasant, urban poor, indigenous cultural minorities,
women, youth and such other sectors as may be provided by
law, except the religions sector (Art. VI, Sec. 5(2) 1987
Constitution.

Lokin, Jr. vs. Commission on Elections 621 SCRA 385
(June 22, 2010),
The SC ruled that Comelec cannot issue rules and
regulations that provide a ground for the substitution of a party-
list nominee NOT written in R.A.7941.
Sec. 8 provides Nomination of Party-List
Representatives. Each registered party, organization
or coalition shall submit to the Comelec not later than
45 days before the election a list of names, not less
than five (5), from which party-list representatives
shall be chosen in case it obtains the required number
of votes.
A person may be nominated in one (1) list only.
Only persons 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. NO
change of names or alteration of the order of nominees
shall be allowed after the same shall have been
submitted to the Comelec except in cases (1) where the
nominee dies, or (2) withdraws in writing his
nomination, (3) becomes incapacitated in which case
the name of the substitute nominee shall be placed last
in the list. Incumbent sectoral representatives in the
HR who are nominated in the party-list system shall
not be considered resigned.
CIBAC (Citizens Battle Against Corruption) thru its
President Emmanuel Villanueva manifested their intent to
participate in the May 14, 2007 synchronized national and local
elections and submitted their list of 5 nominees (Villanueva,
Lokin (herein petitioner), Cruz-Gonzales, Tugna and Galang).
The list was later published in the newspapers of general
circulation. Before the elections, Villanueva filed a certificate of
nomination, substitution and amendment of the list of
nominees whereby it withdrew the nominations of Lokin, Tugna
and Galang and substituted Borje. The amended list included
Villanueva, Cruz-Gonzales and Borje. Subsequently, Villanueva
transmitted to Comelec the signed petitions of more than 81% if
the CIBAC members in order to confirm the withdrawal of the
nominations of Lokin, Tugna and Galang.
Based on the Party-List Canvas Report, it showed that
CIBAC was entitled to a second seat, hence, the counsel of
CIBAC filed with the Comelec sitting as National Board of
Canvassers, a request to proclaim Lokin as the 2nd nominee
which was opposed by Villanueva and Cruz-Gonzales. Since
Comelec failed to act on the filing of the certificate of
nomination, substitution and amendment of the list of
nominees and the petitions of the more than 81% of CIBAC
members, Villanueva filed a petition to confirm the said
certificate with the Comelec which was docketed as E.M. No.
07-054. In the meantime, Comelec as NBC partially proclaimed
several party lists as having won which included Cibac.
The Secretary General of CIBAC informed the Secretary
General of the HR to formally swear Lokin into office but which
was denied in view of the pendency of E.M. No. 07-054 which
approved the withdrawal of the nominations of Lokin et. al. and
the substitution of Borje. Cruz-Gonzales was proclaimed as the
official second nominee.
Lokin brought before the SC via Mandamus to compel
respondent Comelec to proclaim him as the official second
nominee of CIBAC. Also, in another petition, Lokin assailed
Sec. 13 of Resolution No. 7804 (Rules and Regulations
Governing the filing of Manifestation of Intent to Participate
and submission of Names of Nominees under the Party-List)
and its resolution in E.M. No. 07-054.

19
The Comelec asserts that a petition for certiorari is
an inappropriate recourse in law due to the proclamation
of Cruz-Gonzales as representative and her assumption of
that office; that Lokins proper recourse was an electoral
protest filed in the HRET, therefore, the Court has no
jurisdiction over the matter being raised by Lokin. CIBAC
posits that Lokin is guilty of forum shopping for filing a
petition for mandamus and a petition for certiorari,
considering that both petitions ultimately seek to have
him proclaimed as the second nominee of CIBAC.

ISSUES: a) Whether or not the Court has jurisdiction
over the controversy. The Court has jurisdiction. The
controversy involving Lokin is neither an EP nor an action
for QW, for it concerns a very peculiar situation in which
Lokin is seeking to be seated as second nominee of CIBAC.
Although an EP may properly be available to one part-list
organization seeking to unseat another party-list
organization to determine which between the defeated and
the winning party-list organizations actually obtained the
majority of the legal votes, Lokins case is not one in which
a nominee of a particular party-list organization thereby
wants to unseat another nominee of the same party list.
Neither does an action for QW lie, considering that the
case does not involve the ineligibility and disloyalty of
Cruz-Gonzales to the RP, or some other case of
disqualification.
Lokin has correctly brought this special civil action
for certiorari against the Comelec to seek the review of its
resolution in accordance with Section 7 of Article IX-A of
the 1987 Constitution, notwithstanding the oath and
assumption of office by Cruz-Gonzales. The constitutional
mandate is now implemented by Rule 64 of the 1997 Rules
of Procedure, which provides for the review of the
judgments, final orders or resolution of the Comelec and
the Commission on Audit. As Rule 64 states, the mode of
review is by a petition for certiorari in accordance with
Rule 65 to be filed in the SC within the limited period of
30 days. The Court has original and exclusive jurisdiction
over Lokins certiorari and for mandamus.

(b) Both actions, certiorari and mandamus did not violate
the rule against forum shopping even if the actions
involved the same parties, because they were based on
different causes of action and the reliefs they sought were
different.

(c) Comelec gravely abused its discretion in promulgating
Section 13 of Res. No. 7804 as it expanded the
exceptions under Sec. 8 of RA 7941 Section 8
enumerates only 3 instances in which the party-
list organization can substitute another person in
place of the nominee. The enumeration is
exclusive.

Abayhon vs. HRET et. al 612 SCRA 375/Palparan Jr.
vs. HRET et. al.
These two cases were consolidated and jointly
resolved as it both concerns the authority of the HRET to
pass upon the eligibilities of the nominees of the party-list
groups that won seats in the lower house of Congress.
Abayhon is the 1st nominee of the Aangat Tayo party-
list that won a seat in the HR during the 2007 elections.
Palparan on the other hand was the 1st nominee of Bantay
party-list. A petition for QW was filed with HRET against
the party-list groups and its nominee claiming that it was
not eligible for a party-list since it did not represent the
marginalized and underrepresented sectors. Abayhon is
the spouse of an incumbent congressional district
representative and likewise does not belong to the UR and
marginalized. Petitioners also claim that Abayhon lost her
bid as party-list rep called An Waray in the immediately
preceding elections of May 10, 2004. Palparan also was
alleged to have committed various human rights violations
against the marginalized sectors (Bantay represents the
victims of communist rebels, CAFGU, security guards and
former rebels.)
Abayhon and Palparan postures that the Comelec
already confirmed the status of the party list as a national
multi-sectoral party-list organization, that HRET had no
jurisdiction over the petitioner for QW since the
petitioners collaterally attacked the registration of the
party-list organization, a matter that fell within the
jurisdiction of the Comelec. That it was the party-list that
was taking a seat in the HR and not them, being only its
nominees. All questions involving their eligibility as
nominee, were internal concerns of the organization. The
HRET dismissed the petition against party-list but upheld
its jurisdiction over nominees who both filed an MR which
was denied. Hence, this special civil action for certiorari
alleging that the HRET gravely abused its discretion.
The Court made reference to Sec. 5(1) of Article VI
(which identifies who the members of that House
are. The HR shall be composed of not more than 250
members, unless otherwise fixed by law, who shall be elected
from legislative districts apportioned among the provinces,
cities, and the Metropolitan Manila area in accordance with the
number of their respective inhabitants, and on the basis of a
uniform and progressive ration, and those who, as provided
by law, shall be elected through a party-list system of
registered national, regional and sectoral parties or
organizations.
Clearly the members of the HR are 2 kinds
members who shall be elected from legislative districts and
those who shall be elected through a party-list system. From
the point of view of the Constitution, it is the party-list rep who
are elected into office, NOT their parties or organizations.
These representatives are elected, however, through that
peculiar party-list system that the Constitution authorized and
that Congress by law established where the voters cast their
votes for the organizations or parties to which such party-list
reps belong.
Once elected, both the district reps and the party-list reps
are treated in like manners. They have the same deliberative
rights, salaries, and emoluments. They can participate in the
making of laws that will directly benefit their legislative districts
or sectors. They are also subject to the same term limitations of
3 years for a max of 3 consecutive terms. The party list system
act itself recognizes party list nominees as members of the HR
(Sec. 2, RA 7941 Declaration of Policy The State shall
promote proportional representation in the election of reps in
the HR through a party-list system of registered national,
regional and sectoral parties or organizations or coalitions
thereof, which will enable Filipino citizens belonging to the
marginalized and UR sectors x x x x to become
members of the HR .
The Court held that initially, the authority to determine the
qualifications of a party-list nominee belongs to the
organization and to choose five from among the aspiring
nominees to comply with the law. But where an allegation is
made that the party or organization had chosen and allowed a
disqualified nominee to become its party-list rep in the lower
house and enjoy the secured tenure that goes with the position,
the resolution of the dispute is taken out of its hand. Hence,
pursuant to Section 17 of Article VI, the HRET being the sole
judge of all contests relating to, among other things, the
qualifications of the members of the HR, the HRET has
jurisdiction to hear and pass upon their qualifications. The
HRET was correct in dismissing the QW and retaining authority
to rule on the qualifications.

Philippine Guardians Brotherhood, Inc. (PGBI) v.
Comelec 619 SCRA 585 (DELISTING) The Comelec may
motu propio OR upon verified complaint of any interested
party, remove, or cancel, after due notice and hearing, the
registration of any national, regional or sectoral party,
organization or coalition IF It: (a) fails to participate in the
last 2 preceding elections; OR (b) fails to obtain at least
2% of the votes casts under the party-list system in the
2 preceding elections for the constituency in which it
was registered (Section 6 RA 7941). The word OR is a
disjunctive term signifying disassociation and independence of
one thing from the other things enumerated. A party list group
or organization that failed to farner 2% in a prior election and
immediately thereafter did not participate in the preceding
election is something that is not covered by Section 6(8) of RA
7941. From this perspective, it may ben an unintended gap in
the law and as such is a matter for Congress to address. This
case abandoned the Minero vs. Comelec G.R. No. 177548 May
10, 2007.

Amores vs. HRET et. al., 622 SCRA 593 (2010)
Amores via a petition for QW with the HRET questioned
the legality of the assumption of office of Emmanuel Joel
Villanueva as re of CIBAC. It was alleged among other things,
that Villanueva assumed office without a formal proclamation
by the Comelec, disqualified to be a nominee of the youth sector
of CIBAC since at the time of the filing of his certificates of
nomination and acceptance, he was already 31 years old or
beyond the age limit of 30 pursuant to Section 9 of RA 7941 and
that his change of affiliation from CIBACs youth sector to its
overseas Filipino workers and their families sector was not
effected at least 6 months prior to the May 14, 2007 elections so
as to be qualified to represent the new sector under Section 15
of RA 7941.
The HRET dismissed the petition as it found the petition to
be filed beyond the 10 days reglementary period, that the age
qualification for youth sectoral nominees under Section 9 of
RA 7941 applied only to those nominated as such during the
first 3 congressional terms after the ratification of the
Constitution or until 1998, unless a sectoral party is thereafter
registered exclusively as representing the youth sector, which
CIBAC, a multi sectoral organization, is not. As regards the

20
shift of affiliation, it was held that Section 15 did not apply
as there was no resultant change in party list affiliation.

ISSUES: (1) whether the petition for QW was dismissible
for having been filed unseasonably; and (2) whether
Section 9 and 15 of RA 7941 apply to Villanueva. As to the
first issue, the SC found grave abuse of discretion on the
part of HRET. The Court overlooked the technicality of
timeliness and rules on the merits since the challenge goes
into Villanuevas qualifications, it may be filed at anytime
during his term. Also date of proclamation was not clear.
As to the second and more substantial issue, the Court
made reference to Section 9 of RA 7941 which
provides that in case of a nominee of the youth
sector, he must at least be 25 but not more than
30 years of age on the day of the election. The
youth sectoral representative who attains the age
of 30 during his term shall be allowed to continue
in office until the expiration of his term.
The Court did not find any textual support on the
interpretation of HRET that Section 9 applied only to
those nominated during the first 3 congressional terms
after the ratification of the Constitution or until 1998. A
cardinal rule in statutory construction is that when the law
is clear and free from any doubt or ambiguity, there is no
room for construction or interpretation. Only room for
application. The distinction is nowhere found in the law.
When the law does not distinguish, we must not
distinguish.
Respecting Section 15 of RA 7941, the Court
likewise found no textual support for HRETs
ratiocination that the provision did not apply to
Villanuevas shift of affiliation from CIBACs youth sector
to its overseas Filipino workers and their families sector as
there was no resultant change in party list affiliation.
Section 15 reads Change of Affiliation: Effect
Any elected party list rep who changes his
political party or sectoral affiliation during his
term of office shall forfeit his seat; Provided, That
if he changes his political party or sectoral
affiliation within 6 months before an election, he
shall not be eligible for nomination as party-list
rep under his new party or organization.
The wordings of Section 15 is clear as it covers
changes in both political party and sectoral affiliation and
which may occur within the same party since multi-
sectoral party-list org are qualified to participate in the
Philippine party-list system. A nominee who changes his
sectoral affiliation within the same party will only be
eligible for nomination under the new sectoral affiliation if
the change has been effected at least 6 months before the
elections. Sec. 9 and 15 apply to Villanueva.
As regards the contention that Villanueva is the 1st
nominee of CIBAC, whose victory was later upheld, is NO
moment. A party-list organizations ranking of its
nominees is a mere indication of preference, their
qualifications according to law are a different matter.

Ang Ladlad LGBT Party v. Comelec 618 SCRA 32
Ladlad is an organization composed of men and women
who identify themselves as lesbians, gays, bisexuals or
transgendered individuals. They applied for registration
with Comelec in 2006 and its accreditation was denied on
the ground that the org had no substantial membership.
Ladlad in 2009 again filed a petition for registration which
was dismissed by Comelec on moral grounds.
The SC ruled that moral disapproval is not a
sufficient governmental interest to justify exclusion of
homosexuals from participation to the party list system.
The crucial element is not whether a sector is specifically
enumerated, but whether a particular organization
complies with the requirements of the Constitution and
RA 7941. The SC found that Ladlad has sufficiently
demonstrated its compliance with the legal requirements
for accreditation.

Veterans Federation Party v. COMELEC 342 SCRA
244, the SC provided for the parameters of the Filipino
Party-List System which are:

(1) the 20% allocation - the combined number of all
party-list congressmen shall not exceed 20% of the
total membership of the HR, including those under
the party-list;
(2) the 2% threshold only those parties garnering a
minimum of 2% of the total valid votes cast for the
party-list system are qualified to have a seat in the
HR;
(3) the 3-seat limit each qualified party, regardless
of the number of votes it actually obtained, is entitled
to a maximum three seats; that is one qualifying
and two additional seats; and
(4) the proportional representation the additional
seats which a qualified party is entitled to shall be
computed in proportion to their total number of votes.

In this case, following the May 11, 1998 national elections which
is the first election for party-list representation, the COMELEC
en banc proclaimed fourteen (14) parties and organization
which had obtained at least 2% of the total number of votes cast
for the party-list system which constitute a total of 25 nominees
short of the 52 party-list representatives who should actually sit
in the house. The PAGASA, filed with the COMELEC a Petition
to proclaim the full number of party-list representative provided
by the Constitution. They alleged that the filling up of the 20%
membership of party-list representative in the House, as
provided under the Constitution, was mandatory. Nine other
party-list organizations filed their respective motions for
intervention seeking the same relief as that sought by PAG-ASA
on substantially the same grounds.

The COMELEC, contrary to its rules and regulations governing
the said elections, instead proclaimed the other 38 party list
organization notwithstanding its not having garnered the
required 2% votes.

RULING: the SC ruled that the Sec 5(2) of Art. VI which states
that the sectoral representation shall constitute 20% of
the members of the HR is not mandatory as it merely
provides a ceiling for party-list in congress. And, obtaining
absolute proportional representation is restricted by the 3-seat
per party limit to a maximum of two additional slots.
COMELEC was held to have abused its discretion in
disregarding an act of Congress .

Ang Bagong Bayani vs COMELEC 359 SCRA 698 - at
issue is the Omnibus Resolution of the Comelec which approved
the participation of 154 organizations and parties and which the
SC remanded to the Comelec for the latter to determine
evidentiary hearings, whether the 154 parties and organizations
allowed to participate in the party-list elections complied with
the requirements of the law. The SC ruled that the party-list that
the party-list organizations or parties must factually and truly
represent the marginalized and underrepresented
constituencies mentioned in Section 5 of RA 7941 and the
persons nominated by the party-list candidate organization
must be Filipino citizens belonging to the marginalized and
underrepresented sectors, organizations and parties.

The Court finds it appropriate to lay down the following guidelines,
culled from the law and the Constitution, to assist the COMELEC in
its work.

1. First, the political party, sector or organization must represent
the marginalized and underrepresented groups identified in
Section 5 of the RA 7941. In other words, it must show
through the Constitution, articles of incorporation, by-laws,
history, platform of government and track record that it
represents and seeks to uplift marginalized and
underrepresented sectors.

2. Second, While major political parties are expressly allowed by
RA 7941 and the Constitution to participate, they must comply
with the declared statutory policy enabling Filipino citizens
belonging to the marginalized and underrepresented to be
elected to the HR. In other words, while they are not
disqualified merely on the ground that they are political parties,
they must show, however, that they represent the
interests of the marginalized and underrepresented.

3. Third, The religious sector may not be represented into the
party-list system. In view of the objections directed against the
registration of Ang Buhay Hayaang Humabong, which is
allegedly a religious group, the Court notes the express
constitutional provision that the religious sector may not be
represented in the party-list system. Furthermore, the
Constitution provides that religious denominations and sects
shall not be registered. The prohibition was explained by a
member of the Constitutional Commission in this wise The
prohibition is on any religious organization registering as a
political party. I do not see any prohibition here against a priest
running as a candidate. This is not prohibited here; it is the
registration of a religious sect as a political party.

4. Fourth, a party or an organization must not be disqualified
under Section 6 of RA 7941, which enumerates the grounds for
disqualification as follows:

(1) It is a religious sect or denomination, organization or
association organized for religious purposes;

(2) It advocates violence or unlawful means to seek its
goal;


21
(3) It is a foreign party or organization;

(4) It is receiving support from any foreign
government, foreign political party, foundation,
organization, whether directly or through any of its
officers or members or indirectly through third
parties for partisan election purposes;

(5) It violates or fails to comply with laws, rules or
regulations relating to elections;

(6) It declares untruthful statements in its petition;

(7) It has ceased to exist for at least one (1) year; or

(8) It fails to participate in the last two (2) preceding
elections or fails to obtain at least two per centum
(2%) of the votes cast under the party-list system in
the two (2) preceding elections for the constituency
in which it has registered.

5. Fifth, the party or organization must not be an adjunct of,
or a project organized or an entity funded or assisted by
the government (referring to MAD of Richard Gomez). It
must be independent of the government. The participants
of the government or it officials in the affairs of a party-list
candidate is not only illegal and unfair to other parties,
but also deleterious to the objective of the law; to enable
citizens belonging to marginalized and underrepresented
sectors and organizations to be elected to the House of
Representatives.

6. Sixth, the party must not only comply with the
requirements of the law, its nominees must likewise do so.
Section 9 of RA 7941 reads qualifications of Party-List
Nominees No person shall be nominated as party-list
representative unless he is a natural born citizen of the
Philippines, a RV, a resident of the Philippines for a period
of not less than 1 year immediately preceding the day of
the election, able to read and write, a bona-fide member of
the party or organization which he seeks to represent for
at least 90 days preceding the day of the elections and is at
least 25 years of age on the day of the election.

7. Seventh, not only the candidate party must represent the
marginalized and underrepresented sectors, so also must
likewise be able to contribute to the formulation and
enactment of appropriate legislation that will benefit the
nation as a whole.

8. Eighth, as previously discussed, while lacking a well-
defined political constituency, the nominee must likewise
be able to contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a
whole. Senator Jose Lina explained during the bicameral
committee proceedings that the nominee of a party,
national or regional, is not going to represent a particular
district x x x.

Partido ng Mangagawa (PM) and BUTIL Farmers
Party v. Comelec, et. al., the petition before the SC
involves the formula for computing the additional seats
for winners in party-list elections and whether or not
Comelec, as the National Board of Canvassers for the
party-list system, could be compelled by the SC to
mechanically apply the formula stated in the Comelec
Resolution reiterated in the Bagong Bayani cases in the
determination of qualified party-list organization and in
the proclamation of their respective nominees.
In the earlier case of Veterans Federation Party v.
Comelec, the SC came up with a simplified formula for the
computation of additional seats for party-list which was
reiterated in the other cases of Bagong Bayani, Bayan
Muna, etc. With this development, PM and Butil filed with
the Comelec a petition to re-tabulate the party-list votes
and immediately proclaim their respective second
nominees to the HR. The Comelec, however, failed to
resolve the substantive issue and re-tabulate the votes
despite the lapse of time. Hence, the petition seeking the
issuance of a writ of mandamus to compel Comelec to
mechanically apply the Veteran Federation formula in the
case.
Comelec argued that the petition is improper relying
on Sec. 7, Article IX-A of the 1987 Constitution that any
order, decision or ruling of the Comelec may be brought to
the SC on certiorari by the aggrieved party within 30 days
from receipt of copy thereof that this provision was
construed as a special civil action of certiorari under Rule
65 and not an appeal by certiorari under Rule 46 and that
the duty to proclaim the second nominee is not ministerial
but discretionary, hence it is not subject to the writ of
mandamus. SC ruling:
1. SC has original jurisdiction over petitions for
certiorari, prohibition and mandamus.
2. Mandamus will lie if it is a purely ministerial act of
Comelec.
3. Comelec has no discretion to refuse enforcement of
any decision of the SC
4. It is the averments in the complaint and not the
nomenclature given by the parties, that determine the
nature of the action (petition for mandamus may be
treated as a petition for certiorari and mandamus
considering that it alleges that the respondent
Commission acted contrary to prevailing
jurisprudence, hence, with grave abuse of discretion
and without jurisdiction
The Resolution of Comelec was not in the exercise of the
QJ functions but in the exercise of its administrative functions
to enforce and administer election laws.
The simplified formula in the Veterans case was reiterated
and the four (4) inviolable parameters of the party list system
under the Constitution and RA 7941 are still the (1)20%
allocation; (2) 2% threshold; (3) 3 seat limit; (4) Proportional
representation- the additional seats which a qualified party is
entitled to shall be computed in proportion to their total
number of votes.

Bantay Republic Act or BA-RA 7941 vs. G.R. No. 177271,
May 4, 2007, 523 SCRA 1
Petitioners reacting on an emerging public perception that
the individuals behind the party-list groups do not, as they
should, actually represent the poor and marginalized sectors.
Petitioners wrote a letter to the Comelec requesting that the
complete list of the nominees of all parties who have been
accredited pursuant to Comelec Resolution No. 7804
prescribing rules and regulations to govern the filing of
manifestation of intent to participate and submission of names
of nominees under the party-list system of representation in
connection with the May 14, 2007 elections be published. The
Comelec vehemently did not accede to the request of the
petitioners, it based its refusal to disclose the names of the
nominees of subject party-list groups on Section 7 of RA 7941
(more specifically the last sentence which states: the names of
the party-list nominees shall not be shown on the certified list..
The Comelec believe that the party list elections must not
be personality oriented. Abalos said under RA 7941, the people
are to vote for sectoral parties, organizations, or coalitions not
for their nominees.

ISSUE: whether or not the disclosure of the names of the
nominees are covered by the Right of Public to information.

HELD: The Comelec has a constitutional duty to disclose and
release the names of the nominees of the party list groups. No
national security or like concerns is involved in the disclosure of
the names of the nominees of the party-list groups in question.
The last sentence of Section 7 is limited in scope and duration,
meaning, that it extends only to the certified list which the same
provision requires to be posted in the polling places on election
day. To stretch the coverage of the prohibition to the absolute
nothing in RA 7941 that prohibits the Comelec from disclosing
or even publishing through mediums other than the Certified
list the names of the party-list nominees. The Comelec
obviously misread the limited non-disclosure aspect of the
provision as an absolute bar to public disclosure before the May
2007 elections. The need for voters to be informed about
matters that have a bearing on their choice. The ideal cannot be
achieved in a system of blind voting, as veritably advocated in
the assailed resolution of the Comelec.

Banat et. al. vs. Comelec G.R. 178271/12972 (2009) which
abandoned the matter of computation held in the Veterans
Party case intention was to fill the 20% and party list were
ranked according to the votes cast for party-list and even those
who did not reach the 2% were given seats in the second round
of the ranking. Those who garnered 2% automatically takes a
seat in the first round.

Pimentel Jr. vs HRET GR no. 147589 and 147613

The Constitution expressly grants to the House of
Representatives the prerogative, within constitutionally defined
limits, to choose from among its district and party-list
representatives those who may occupy the seats allotted to the
House in the HRET and the CA. Section 18, Article VI of the
Constitution explicitly confers on the Senate and on the House
the authority to elect among their members those who would fill
the 12 seats for Senators and 12 seats for House members in the
Commission on Appointments. Under Section 17, Article VI of
the Constitution, each chamber of Congress exercises the power
to choose, within constitutionally defined limits, who among
their members would occupy the allotted 6 seats of each
chambers respective electoral tribunal.


22
POWER TO SUPERVISE AND REGULATE
FRANCHISE

+ The objective of the power vested in the COMELEC to
regulate the enjoyment and utilization of franchise during
the election period is to ensure equal opportunity, time,
space, equal rates for public.

Telecommunications Broadcast Attorneys of the
Phils., Inc. (TELEBAP) and GMA Network Inc. v.
COMELEC April 21, 1998,

FACTS: TELEBAP, which is an organization of lawyers of
radio and broadcasting network companies sued as
citizens, taxpayers and registered voters and GMA
network, challenging the validity of Sec. 92 of BP 881
(COMELEC Time and Space) on the grounds that (a) it
takes property without due process of law and just
compensation; (b) that it denies radio and television
broadcast companies the equal protection of the laws and
(c) that it is in excess of the power given to COMELEC to
supervise and regulate the operation of media of
communication or information during the election period.

HELD: As to the issue of personality of TELEBAP, the
court ruled that it has no legal standing because a
citizen will be allowed to raise a constitutional
question only when he can show that he has
personally suffered some actual or threatened
injury as a result of the alleged illegal conduct of
the government; that the injury is fairly traceable to the
challenged action; and that the injury is likely to be
redressed by a favorable action. TELEBAP cannot sue
as RV since the case does not concern their right
of suffrage and much less as taxpayers since the
case did not involve the exercise by Congress of its
taxing or spending power. As a corporate entity,
TELEBAP will have standing to assert the right of radio
and television companies only if it can be shown that the
party suing has some substantial relation to the 3
rd
party
or the 3
rd
party cannot assert his constitutional right, or
that the right of the 3
rd
party will be diluted unless the
party in court is allowed to espouse the 3
rd
partys
constitutional claim. None of these circumstances are
present in this case.

With respect to the issue as to WoN Sec. 92 of BP 881
violates the due process clause and eminent domain
provision of the constitution by taking from radio and
television broadcasting stations without payment of just
compensation, it was ruled that all broadcasting,
whether by radio or by TV stations are licensed by
the government. Airwave frequencies have to be
allocated as there are more individuals who want to
broadcast than there are frequencies assigned. A
franchise is a privilege subject to amendment by
congress in accordance with the constitutional provision
when the common good so requires. The COMELEC time
provisions have been made as amendments of the
franchises of radio and TV stations and was not thought of
as taking of property without just compensation. The
right of the listeners and viewers is paramount over the
right of the broadcasters.

ABS-CBN vs COMELEC 323 SCRA 811, the SC defined

+ EXIT POLLS as a specie of electoral survey
conducted by qualified individuals or groups of
individuals for the purpose of determining the
probable result of an election by confidentially
asking randomly selected voters whom they have
voted for, immediately after they have official cast
their ballots. That an absolute prohibition is
unreasonably restrictive, because it effectively prevents
the use of exit poll data not only for election days of the
elections, but also for long term research. The concern of
COMELEC of a non-communicative effect of the exit polls
which is disorder and confusion in the voting centers does
not justify a total ban of the exist polls. COMELEC should
instead set safeguards in place for those who intends to
conduct exit polls.

Sec. 5.5 of RA 9006, provides for the requirements for
the taking of exit polls:

1) Pollsters shall not conduct their survey within fifty
(50) meters from the polling place, whether said
survey is taken in a home, dwelling place and other
places;
2) Pollsters shall wear distinctive clothing.
3) Pollsters shall inform the voters that they may refuse to
answer; and
4) The result of the exist polls may be announced after the
closing of the polls on election day, and must clearly
identify the total number of respondents, and the places
where they were taken. Said announcement shall state
that the same is unofficial and does not represent a trend.

Social Weather Stations vs. COMELEC 357 SCRA 496
SWS is a private non-stock, non-profit social research
institution conducting surveys in various fields, including
economics, politics, demography and social development, and
thereafter processing, analyzing and publicly reporting the
results thereof. On the other hand, Kamahalan Publishing
Corporation publishes the Manila Standard, a newspaper of
general circulation, which features newsworthy items of
information including election surveys.

Petitioners brought this action for prohibition to enjoin the
COMELEC from enforcing par. 5.4 of RA 9006 which provides,
Surveys affecting national candidates shall not be published
fifteen (15) days before an election and surveys affecting local
candidates shall not be published seven (7) days before an
election.

The term election surveys is defined in par. 5.1 of the law as
follows Election surveys refer to the measurement of
opinions and perception of the voters as regards a
candidates popularity, qualification, platforms or a
matter of public discussion in relation to the election,
including voters preference for candidates or publicly
discussed issues during the campaign period.

Petitioner SWS states that it wishes to conduct an election
survey throughout the period of the elections both at the
national and local levels and release to the media the results of
such survey as well as publish them directly. Kamahalan also
states that it intends to publish election survey results up to the
last day of the elections on May 14, 2001. HELD: Par. 5.4
constitutes an unconstitutional abridgement of freedom of
speech, expression and the press. It is invalid because it
imposes a prior restraint on the freedom of expression and it is
a direct and total suppression of a category of expression even
though such suppression is only for a limited period, and the
governmental interest sought to be promoted can be achieved
by means other than the suppression of freedom of expression.

In Bagong Bayani Labor Party v. COMELEC 359 SCRA
698 (June 26, 2001), at issued is the Omnibus Resolution of the
COMELEC which approved the participation of 154
organizations and parties and which the SC remanded to the
COMELEC for the latter to determine evidentiary hearings,
whether the 154 parties and organizations allowed to participate
in the party-list elections comply with the requirements of the
law. The SC ruled that the party-list organization or
party must factually and truly represent the
marginalized and underrepresented constituencies
mentioned in Section 5 of RA 7941 and the persons nominated
by the party-list candidate-organization must be Filipino
citizens belonging to marginalized and
underrepresented sectors, organizations and parties.

Having remanded the case to COMELEC, the SC laid down the
following guidelines:

[REQUISITES TO BE CONSIDERED TO BECOME A
PARTY LIST ORGANIZATION:]

1) FIRST, the PP, sector or organization must represent the
marginalized and underrepresented groups identified in
Section 5 of RA 7941.
2) SECOND, while major political parties are expressly
allowed by RA 7941 and the Constitution to participate,
they must comply with the declared statutory policy
enabling Filipino citizens belonging to M and U to be
elected to the HR.
3) THIRD, the religious sector may not be represented in the
party-list system. FOURTH, it must not be disqualified
under the grounds enumerated under Section 6 of RA
7941.
4) FIFTH, the party or organization must not be an adjunct
of, or a project organized or an entity funded or assisted by
the government.
5) SIXTH, the party must not only comply with the
requirements of the law, its nominees must likewise do so.
SEVENTH, not only the candidate party must represent
the M and U sectors, so also must its nominees. EIGHT,
while lacking a well-defined political constituency, the
nominees must likewise be able to contribute to the
formulation and enactment of appropriate legislation that
will benefit the nation as a whole.

23
LIMITATIONS ON THE POWER OF THE PRESIDENT
TO GRANT PARDON, AMNESTY, PAROLE OR
SUSPENSION OF SENTENCE

Art. IX-C Sec. 5 provides that the President cannot,
without the favorable recommendation of the COMELEC,
grant pardon, amnesty, parole or suspension of sentence
in cases involving violation of election laws and
violation of election rules and regulations.

REGISTRATION OF POLITICAL PARTIES AND
ENLIST CITIZENS ARMS (BP 881, Section 60-62)

Section 60.

+ "Political party" or "party" means an organized
group of persons pursuing the same ideology,
political ideas or platforms of government and
includes its branches and divisions.
+ To acquire juridical personality, quality it for subsequent
accreditation, and to entitle it to the rights and privileges
herein granted to political parties, a political party
shall first be duly registered with the Commission.
Any registered political party that, singly or in coalition
with others, fails to obtain at least ten percent of the votes
cast in the constituency in which it nominated and
supported a candidate or candidates in the election next
following its registration shall, after notice and hearing be
deemed to have forfeited such status as a registered
political party in such constituency.

Section 61. Registration.

1) file with the Commission a verified petition attaching
thereto its constitution and by-laws, platform or
program of government and such other relevant
information as may be required by the Commission.
2) The Commission shall, after due notice and hearing,
resolve the petition within ten days from the date it
is submitted for decision.
3) No religious sect shall be registered as a political
party and no political party which seeks to achieve its
goal through violence shall be entitled to
accreditation.

Section 62. Publication of petition for registration or
accreditation.
+ The Commission shall require publication of the petition
for registration or accreditation in at least three
newspapers of general circulation and shall, after due
notice and hearing, resolve the petition within fifteen days
from the date it is submitted for decision.


24
REGISTRATION OF VOTERS

Suffrage may be exercised:

1) By all citizens of the Philippines not
otherwise disqualified by law, who are:
2) At least 18 years of age, and
3) Who shall have resided in the Philippines for at least
one (1) year and in the place wherein they propose to
vote for at least six (6) months immediately
preceding the elections.
4) No literacy, property, or other substantive
requirement shall be imposed on the exercise of
suffrage.
12

RA 8189 VOTERS REGISTRATION ACT/SALIENT
FEATURES

+ Registration of voters is a means of determining who
possess the qualifications of voters and regulating the
exercise of the right of suffrage.
+ Registration is essential to enable a qualified voter to vote
in any election, or any form of popular intervention.

What is the effect of the effectivity of RA 8189 to the
current permanent list of voters? RA 8189 provides for
the general registration of voters for purposes of the May 1998
elections. Consequent thereto, all certified list of voters shall
cease to be effective and operative.

WHAT IS REGISTRATION?

+ Registration refers to the act of accomplishing
and filing of a sworn application for registration
by a qualified voter before the election office of
the city or municipality wherein he resides and
including the same in the book of registered
voters upon approval by the Election Registration
Board. (Sec. 3(a) )

WHO MAY REGISTER?

General Rule:

Suffrage may be exercised:
1) by all citizens of the Philippines not otherwise
disqualified by law, who are:
2) At least 18 years of age, and
3) Who shall have resided in the Philippines for at least
one (1) year and in the place wherein they propose to
vote for at least six (6) months immediately
preceding the elections.
4) No literacy, property, or other substantive
requirement shall be imposed on the exercise of
suffrage.
13

In addition to that provided under Sec. 1 Article V of the
Constitution and Sec. 117 of the OEC, Section 9 of RA 8189
further provide:

Any person who temporarily resides in another city,
municipality or country solely by reason of his occupation,
profession, employment in private or public service,
educational activities, work in the military or naval
reservations within the Philippines, service in the Armed
Forces, or confinement or detention in government
institution in accordance with law, shall NOT be
deemed to have lost his original residence.

The 3
rd
paragraph of Sec. 9 further clarified Sec. 126 of the
OEC:

Any person, who, on the day of registration may not have
reached the required age or period of residence but, who,
on the day of election shall possess such qualifications,
may register as a voter.

REQUISITES WHEN NEW DOMICILE IS ACQUIRED
BY CHOICE

Romuladez v. RTC 226 SCRA 402 - In order to acquire
a new domicile by choice, there must concur:
1) residence or bodily presence in the new
locality;
2) an intention to remain in the new locality;

12
Sec. 1, Article V of the Constitution/Sec. 117 OEC
13
Sec. 1, Article V of the Constitution/Sec. 117 OEC
3) an intention to abandon the old domicile. There
must be animus manendi coupled with animust
non-revertendi.

Sarangani vs COMELEC 334 SCRA 379

SEC. 8 - SYSTEM OF CONTINUING REGISTRATION OF
VOTERS/CREATION OF ELECTION REGISTRATION
BOARDS

A qualified voter can personally file an application for
registration DAILY with the office of the election Officer during
regular office hours. The Election Registration Boards
authorized to act on all applications for registration which is
composed of the Election Officer as Chairman and as members,
a public school official most senior in rank and the local civil
registrar or in his absence, the city or municipal treasurer.

LIMITATION: No registration shall however be conducted
during the period starting 120 days before a regular elections
and 90 days before a special elections.

SEC. 9 QUALIFICATIONS FOR REGISTRATION

1) Citizenship - all citizens of the Philippines, NOT otherwise
disqualified by law
2) Age - at least 18 years old on the day of the election
4) Residence resident in the Philippines at least one (1) year
and six (6) months in the place wherein they propose to vote
immediately preceding the elections. Residence requirement
must be possessed at least on the date of the elections.
Residence and domicile treated synonymous
5) Original residence not deemed lost temporarily residing in
another city, municipality or country solely by reason of
occupation, profession, employment, educational activities,
work in the military or naval reservations within the
Philippines, service in the AFP, the National Police forces or
confinement or detention in government institutions in
accordance with law.

SEC. 11 - DISQUALIFICATIONS:

1) Any person who has been sentenced by final judgment
to suffer imprisonment for not less than one (1)
year.
2) Any person who has been adjudged by final judgment
by competent court or tribunal of having
committed any crime involving disloyalty to the
duly constituted government such as rebellion,
sedition, violation of the anti-subversion and
firearms law, or any crime against national
security in accordance with the law.
3) Insane or incompetent as declared by a competent
authority

WHEN DISABILITY REMOVED:

Those sentenced by final judgment, disability is removed by
plenary pardon or amnesty or the expiration of five (5) after
service of sentence.
For insane and incompetent, by an official declaration by a
proper authority that the insanity or incompetency no longer
exist.

WHO ARE CONSIDERED ILLITERATE AND DISABLED
VOTERS AND HOW DO THEY REGISTER?

+ Section 14 - Illiterate or disabled applicants are referred
to as person who cannot by themselves prepare an
application for registration because of their physical
disability and/or inability to read and write.

PROCEDURE FOR ILLITERATE APPLICANTS

May be assisted by the election officer or any member of an
accredited citizens arm.
The election officer shall place such illiterate person under oath,
ask him the questions and record the answers given in order to
accomplish the application form in the presence of the majority
of the members of the Board.
The accomplished form shall be subscribed by the applicant in
the presence of the Board by means of thumb mark or some
other customary mark and it shall be subscribed and attested by
the majority of the members of the Board.

PROCEDURE FOR DISABLED APPLICANTS


25
The application for registration of a physically disabled
person may be prepared by any relative within the
4
th
civil degree of consanguinity or affinity or by
the election officer or any members of an
accredited citizens arm using the data supplied by
the applicant.

NOTE: In both instance, the fact of illiteracy and
disability shall be so indicated in the application.

DEACTIVIATION, REACTIVIATION AND
CANCELLATION OF REGISTRATION

+ DEACTIVATION
14
is a process wherein the
registration record of a voter is removed by the
Board from the corresponding precinct book of
voters and places the same in an inactive file
properly marked and dated in indelible ink and
after entering the causes for deactivation which
are as follows:

1) Those who are disqualified by virtue of a final
judgment as earlier enumerated and insane
and incompetent persons as official declared.
2) Any person who failed to vote in the 2
successive preceding regular elections as
shown by his voting records.
3) Any person whose registration has been ordered
excluded by the court.
4) Any person who has lost his Filipino citizenship

For the above purposes, the Clerks of Court of the MTC,
MTCC, RTC and SB is mandated to furnish the election
office of the city or municipality concerned at the end of
each month a certified list of persons who are disqualified
by virtue of a final judgment, with their addressed. With
respect to those who lost their citizenship, insanity and
incompetence, the COMELEC may request a certified list
of such persons from the government agencies concerned.

+ REACTIVATION
15
is a process whereby a voter
whose registration records has been deactivated
files with the election officer a sworn application
for reactivation of his registration in the form of
an affidavit by stating therein that the grounds for
the deactivation no longer exist.

When filed?
Any time but not later than 120 days before a regular
election and 90 days before a special election. Upon
approval, the Board, shall retrieve the registration records
from the inactive file and included the same in the
corresponding precinct book of voters. Local heads or
representatives of political parties shall be properly
notified of approved applications.

+ CANCELLATION
16
is a process wherein the
Board cancels the registration records of those
who have died as certified by the local civil
registrar who shall submit each month a certified
list of persons who died during the previous
month to the election officer of the place where
the deceased is registered.
1) REMEDIES persons whose application for
reactivation, inclusion or correction has been
disapproved or those who intend to exclude a
voter from the list of voters

JURISDICTION IN INCLUSION AND EXCLUSION
CASES
17

The Municipal and Metropolitan Trial courts shall have
original jurisdiction over all cases of inclusion and
exclusion of voters in their respective municipalities.

WHERE TO APPEAL

Decisions of the MTC may be appealed by the aggrieved
party to the RTC within 5 days from receipt of notice
thereof. Otherwise, said decision shall become final and
executory. RTC shall decide the appeal within 10 days
from the time it is received and the RTC decision shall
immediately become final and executory. NO motion for
reconsideration shall be entertained.

14
Sec. 27
15
Sec. 28
16
Sec. 29
17
Sec. 33
WHO MAY FILE PETITION FOR INCLUSION OF VOTERS
IN THE LIST
18
?

Any person whose application for registration

(1) has been disapproved by the Board; or
(2) whose name has been striken out from the list; or
(3) whose name was not included in the precinct list of voters; or
(4) who has been included therein with a wrong or misspelled
name;
(after the Board disapproved its application for reinstatement or
correction of name) may file with the court a petition

When to file?
Any time except 105 days prior to a regular election or 75 days
prior to a special election. The petition should be supported
by a certificate of disapproval of his application and
proof of service of notice upon the Board. MTC shall
decide within fifteen (15) days after its filing.
If the decision is for the inclusion of voters in the permanent list
of voters, the Board shall place the application for registration
previously disapproved in the corresponding Book of voters and
indicate in the application for registration the date of the order
of inclusion and the court which issued the same.

WHO MAY FILE PETITION FOR EXCLUSION OF VOTERS
FROM THE LIST
19
?
Any registered voters, representative of a political party or the
Election Office.

When to file?

Any time except 100 days prior to a regular election or 65 days
prior to a special election. Supporting documents shall be proof
of notice to the Board and to the challenged voter. MTC shall
decide within ten (10) days.
If the decision is for exclusion, the Board shall, remove the
voters registration record from the corresponding book of
voters, enter the order of exclusion therein.

Significance of Petitions for Exclusion

Akbayan v. COMELEC March 26, 2001, The petition for
exclusion is a necessary component to registration since it is a
safety mechanism that gives a measure of protection
against flying voters, non-qualified registrants, and the
like. The prohibitive period, on the other hand, serves
the purpose of securing the voters substantive right to
be included in the list of voters.

Facts: The bone of contention of petitioners praying for a two-
day special registration of new voters for the May 14, 2001
elections which was denied by the COMELEC due to operational
impossibility, undermined their constitutional right to vote and
caused the disenfranchisement of around 4M Filipinos of voting
age who failed to register before the registration deadline set by
the COMELEC.

HELD: The SC ruled that the right of suffrage is not
absolute as, in the enjoyment of all other rights, is
subject to existing substantive and procedural
requirements embodied in our Constitution, statute
and other repositories of law.

Procedural limitation: must undergo the process of
registration, in addition to the minimum requirements
set by the Constitution under Section 1, Article V, the act of
registration being an indispensable precondition and element to
the right of suffrage and election process. Referring to Sec. 8 of
RA 8189, the law is explicit that no registration shall, however,
be conducted during the period starting 120 days before a
regular election and 90 days before a special election.

Sec. 35 of RA 8189 on the other hand speaks of the prohibitive
period within which to file a sworn petition for the exclusion of
voters from the permanent list of voters. Thus, if the special
registration of voters will be conducted, then the
prohibitive period for filing petitions for exclusion
must likewise be adjusted to a later date, if NOT, then
no one can challenge the voters list which is violative
of the principles of due process and would open the
registration process to abuse and seriously
compromise the integrity of the voters list, and that of
the entire election.

BQ 2001: Let us suppose that Congress enacted a law which
amended the OEC (particularly Sections 138, 139, 142, 143) by

18
Sec. 34
19
Section 35

26
vesting in the Commission on Elections the jurisdiction
over inclusion and exclusion cases filed by voters, instead
of in the courts (MTC, then RTC). Is the law valid or not,
why?

SUGGESTED Answer: The law granting the COMELEC
jurisdiction over inclusion and exclusion cases is
unconstitutional. Under Section 2(3), Article IX-C of the
Constitution, the COMELEC cannot decide the right
to vote, which refers to the inclusion and
exclusion of voters. Under Section 2(6), Article
IX-C of the Constitution, it can only file petitions
in court for inclusion or exclusion of voters.

De Guzman et. al. v. COMELEC July 19, 2000, the
validity of Sec. 44 of RA 8189 was raised which reads:
Reassignment of Election Officers. No Election Officer
shall hold office in a particular city or municipality for
more than 4 years. Any EO who, either at the time of the
approval of this Act or subsequent thereto, has served for
at least 4 years in a particular city or municipality shall
automatically be reassigned by the Commission to a new
station outside the original congressional district.

With the foregoing provision, COMELEC promulgated
Res. No. 97-0002 and issued several directives reassigning
the petitioners, who are either Ctiy or Municipal Election
Officers, to different stations. Aggrieved by the said
resolution, petitioners went to the Supreme Court through
a petition for certiorari and prohibition with urgent prayer
for the issuance of a writ of preliminary injunction and
TRO, assailing the validity of Sec. 44 and raised several
issues -

1) Sec. 44 of RA 8189 violates the equal
protection clause, because it singles out the
City and Municipal Election Officers as
prohibited from holding office in the same city
or municipality for more than 4 years,
maintaining that there is no substantial
distinction between them and other COMELEC
officials, and therefore, there is no valid
classification to justify the objective of the
provision of law under attack.

In this issue the Court ruled that the 1987
Constitution permits a valid classification
under the following conditions:

(1) the classification must rest on substantial
distinctions;
(2) the classification must be germane to the purpose
of the law;
(3) the classification must not be limited to existing
conditions only; and
(4) the classification must not be limited to all
members of the same class.

In singling out of election officers in order to
ensure the impartiality of election officials by
preventing them from developing familiarity
with the people of their place of assignment
does not violate the equal protection clause. The
legislature as held in Lutz v. Araneta 98 Phil 1955 that
legislature is not required by the Constitution to
adhere to a policy of all or none. While it may be true
that all election officers of COMELEC referred to by the
petitioners are exposed to the same evil sought to be
addressed by the statutes, it can be discerned that
the legislature, through the noble purpose of
the law, would be sufficiently served by
breaking an important link in the chain of
corruption than by breaking up each and every
link thereof. The EO as defined in Section 3 (n) of RA
8189 are the highest officials or authorized
representatives of such officials, large-scale anomalies
in the registration of voters can hardly be carried out.
Similarly, to require the COMELEC to reassign all
employees connected with the registration of voters
who have served for 4 years in a given city or
municipality would entail a lot of administrative burden
on the part of the COMELEC.

(2) On the issue that it violates the security of tenure of
civil servant as it duly deprives them of due process of
law, the rule that outlaws unconsented transfers as
anathema to security of tenure applies only to any
officer who is appointed not merely assigned to a
particular station and does not proscribe a transfer
carried out under a specific statute that empowers the
head of an agency to periodically reassign the
employees and officers in order to improve the service
of the agency. The guarantee of security of tenure
under the Constitution is not a guarantee of
perpetual employment. It means that an employee
cannot be dismiss (or transferred) from service for
cause other than those provided by law and after due
process is accorded the employee. What it seeks to
prevent is capricious exercise of the power to dismiss. But,
where it is the law-making authority itself which furnishes
the ground for the transfer of a class of employees, no such
capriciousness can be raised for so along as the remedy
proposed to cure a perceived evil is germane to the purposes
of the law.

(3) Sec. 44 undermines the independency and authority of
the COMELEC to appoint its own officials and employees. It
was ruled that Sec. 44 merely provides the criterion or basis
for the reassignment or transfer of an EO. In fact, Sec. 44
even strengthens the COMELECs power of appointment, as
the power to assign or transfer is within its exclusive
jurisdiction.


27
PRECINCT/POLLING PLACE/VOTING CENTER

+ PRECINCT refers to the basic unit of territory
established by the Commission for the purpose of voting.
+ PRECINCT MAPS refer to the sketch or drawing of a
geographical area stated in terms of streets or street
blocks or sitios the residents of which would belong to a
particular precinct.
+ POLLING PLACE refers to the place where the BEI
conducts its proceedings and where the voters cast their
votes.
+ VOTING CENTER refers to the building or place
where the polling place is located.

ARRANGEMENT OF PRECINCTS

e Every barangay shall have at least 1 precinct.
e Each precinct shall have not more than 200 voters
and shall comprise contiguous and compact territories.
e No territory comprising an election precinct shall be
altered or a new precinct established at the start of the
election period. (Sec. 5, RA 8189)
e No location of a polling place shall be changed within 45
days before a regular elections and 30 days before a
special election, referendum or plebiscite except in case
it is destroyed or it cannot be used.
e No designation of polling places shall be changed except
upon written petition of the majority of the voters of the
precinct or agreement of all political parties or by
resolution of the Commission upon prior notice and
hearing.
20

Publication of Maps of Precincts

+ At least 5 days before the first registration day and until
after the election, the COMELEC shall post in the city or
municipal hall and in 3 other conspicuous places and on
the door of each polling place, a map of the city or
municipality showing its division into precincts. Such
maps shall be kept posted until after the election,
referendum or plebiscite. (Sec. 151, BP 881)

+ POLLING PLACE: Building or place where the Board of
Election Inspectors conducts its proceedings and where
the voters cast their votes (Sec. 152, BP 881)

Designation of polling places

The COMELEC may introduce changes in the location of
polling places when necessary after notice to the
registered political parties and candidates affected and
hearing.
No location shall be changed within 45 days before a
regular election and 30 days before a special election,
referendum or plebiscite except when it is destroyed or it
cannot be used. (Sec. 153, BP 881)

Arrangements and Contents of Polling Places

Each polling place: at least 10 voting booths to enable the
voters to fill out their ballots secretly. (Sec. 158, BP 881)
The polling place shall be so arranged that everything,
except what is being written within the booths, shall be in
plain view of the BEI, the watchers and other persons
within the polling place. (Sec. 159 (d), BP 881)
The COMELEC shall post inside each voting booth and
elsewhere in the polling place on the day before the
election and during the voting period a list containing the
names of all candidates or the issues or questions to be
voted for. (Sec. 158; BP 881)
There shall be a guard rail between the voting booths and
the table for the BEI. (Sec. 159; BP 881)

OFFICIAL BALLOTS, ELECTION RETURNS
& BALLOT BOXES

The ballots shall:
1. be uniform in size;

20
Under the Sec. 153 and 154 of the OEC
2. be printed in black ink on white security paper with
distinctive, clear and legible watermarks that will readily
distinguish it from ordinary paper;
3. be in the shape of a strip with stub and a detachable coupon
containing the serial number of the ballot and a space for the
thumb mark of the voter on the detachable coupon;
4. bear at the top middle portion the coat-of-arms of the
Republic, the words, Official Ballot, the name of the city or
municipality and the province, the date of the election and
the following notice in English, Fill out this ballot secretly
inside the voting booth. Do not put any distinctive mark on
any part of this ballot;
5. contain the names of all the offices to be voted for, allowing
opposite the name of each office, sufficient space or spaces
with horizontal lines where the voter may write the name or
names of the individual candidates voted for by him;
6. have nothing printed or written at the back except the
signature of the chairman of the Board of Election Inspectors

In cities or municipalities where Arabic is of general use, ballots shall
have each of the titles of the offices to be voted for printed in Arabic
in addition to and immediately below the English title.

Notwithstanding the preceding provisions, COMELEC may prescribe
a different form of official ballot on the same watermarked security
paper to facilitate the voting by illiterate voters only and to use or
adopt the latest technological and electronic devices in connection
therewith. (Sec. 23, R.A. 7166)

GR: no ballots other than the official ballots shall be used or counted.
Exception: "emergency ballots" may be used:
1. in the event of failure to receive the official ballots on time,
or
2. where there are no sufficient ballots for all registered
voters, or
3. where they are destroyed at such time as shall render it
impossible to provide other official ballots.
In these cases, the city or municipal treasure shall provide other
ballots which shall be as similar to the official ones as circumstances
will permit and which shall be uniform within each polling place.
(Sec. 182, BP 881)

Printed by the Government Printing Office and/or the Central
Bank printing facilities exclusively, under the exclusive
supervision and control of the COMELEC. (Sec. 184, BP 881)
The registered political parties or coalitions of parties (or their
components should there be any dissolution or division of said
coalition) whose candidates obtained at least 10% of the total
votes cast in the next preceding senatorial election are each
entitled to have a watcher and/or representative in the
procurement and watermarking of papers to be used in the
printing of election returns and official ballots, and in the
printing, numbering, storage and distribution thereof. (Sec. 8,
R.A. 6646)

Ballots distributed to each city and municipality at the rate of 1
1/5

ballots for every voter registered, and for
election returns, at the rate of one set for every polling place.
(Sec. 186, BP 881)
The ruling party and the dominant opposition party shall submit
the names of their watchers who, together with the
representatives of the COMELEC and the provincial, city, and
municipal treasurers shall verify the contents of the boxes
containing the shipment of official ballots, election returns and
sample official ballots. (Sec. 189, BP 881)

On the day of the voting, there shall be a ballot box
one side of which shall be transparent which shall be set in a manner
visible to the voting public. It shall contain two compartments, one
for valid ballots and the other for spoiled ballots.

Polling Places
Form and Contents of ballots
Emergency Ballots
Printing of official ballots and election returns
Requisition and Distribution
Ballot boxes

28
BOARD OF ELECTION INSPECTORS

The BEI is composed of the:
1. Chairman,
2. Poll Clerk and
3. Third member who man the precincts, all of
whom shall be public school teachers.

In case there are not enough public school teachers, teachers in
private schools, employees in the civil service or other citizens
of known probity and competence who are registered voters of
the city or municipality may be appointed (Sec. 13, 6646).

DISQUALIFICATION

Related within the 4th civil degree of consanguinity or
affinity to any member of the BEI or to any candidate to be
voted for in the polling place or his spouse.

POWERS OF BEI
21

(1) Conduct the voting and counting of votes in
their respective polling places;
(2) Act as deputies of the COMELEC in the
supervision and control of the election in the
polling places wherein they are assigned, to
assure the holding of the same in a free,
orderly and honest manner; and
(3) Perform such other functions prescribed by
this Code or by the rules and regulations
promulgated by the COMELEC.

VOTING PRIVILEGE

Members of the BEI and their substitute may vote in the
polling place where they are assigned provided
they are registered voters.
22

Under the OEC all that the BEI need to do is indicate in
the Minutes of Voting such fact.
Under EO 157, the appropriate head of the agency shall
within 30 days submit to the Commission a list of officers
who are registered voters, who, by reason of their duties
and functions, will be in places other than their place of
registration and who desire to exercise their right to vote,
with the request that said officers and employees be
provided with application forms to cast absentee ballots in
their place of assignment.

The COMELEC upon verification that the persons
included in the list are qualified voters, shall transit the
exact number of application forms to the head of the office
making the request and after duly accomplishing it, shall
return he same to the COMELEC.

ABSENTEES

The COMELEC after receipt of the accomplished forms,
shall transmit the exact number of absentee ballots to the
appropriate head of the government office for distribution
to the applicants. And submit to the COMELEC the
following:

1. A sworn report on the manner of distribution of the
absentee ballots, indicating the number of ballot
transmitted to each province, names of the persons
to whom the absentee ballots are delivered, the serial
numbers of the ballots.
2. It shall be accompanied by a certificate of eligibility
to vote absentee for each particular voter.

The voters who cast absentee votes shall vote one week
before election day by delivery it to the RD, PES or the
City or Municipal Election Registrar concerned who in
turn shall transmit by fastest means to the Commission on
Elections.

The absentee voter shall apply to the elections for
President, VP and Senators only and shall be
limited to the BEIs, members of AFP, PNP and
other government employees who, on election
day, may temporarily be assigned in connection
with the performance of election duties to places
where they are not registered. (As modified by Sec.
12 of RA 7166)

21
Sec. 168
22
Sec. 169 of the OEC was amended by EO 157 March 30 1987

WATCHERS
(Sections 178-180, OEC)

Official watchers of candidates

Every registered political party, coalition of political parties and
every independent candidate shall each be entitled to one
watcher in every polling place.

QUALIFICATIONS
1. qualified voter of the city or municipality,
2. of good reputation and
3. shall not have been convicted by final judgment of
any election offense or of any other crime,
4. must know how to read and write Pilipino, English,
Spanish or any of the prevailing local dialects, and
5. not related within the fourth civil degree of
consanguinity or affinity to the chairman or any
member of the board of election inspectors in the
polling place where he seeks appointment as a
watcher.

Each candidate, political party or coalition of political parties
shall designate in every province, highly urbanized city or
district in the Metropolitan Manila area, a representative
authorized to appoint watchers, furnishing the provincial
election supervisor or the city election registrar, as the case may
be, the names of such representatives.
The provincial election supervisors shall furnish the municipal
election registrars and election registrars of component cities
with the list of such representatives.
In the case of Metropolitan Manila, the designation of the
persons authorized to appoint watchers shall be filed with the
Commission, which shall furnish the list of such representatives
to the respective city and municipal election registrars.

RIGHTS AND DUTIES OF WATCHERS

Upon entering the polling place, the watchers shall present and
deliver to the chairman of the board of election inspectors his
appointment, and, his name shall be recorded in the minutes with a
notation under his signature that he is not disqualified under the
second paragraph of Section 178.
The appointments of the watchers shall bear the personal or the
facsimile signature of the candidate or the duly authorized
representatives of the political party or coalition who appointed him
or of organizations authorized by the Commission under Section 180.

The watchers shall have the right to stay in the space reserved for
them inside the polling place.

They shall have the right to
1. witness and inform themselves of the proceedings of the BEI,
including its proceedings during the registration of voters,
2. to take notes of what they may see or hear,
3. to take photographs of the proceedings and incidents, if any,
during the counting of votes, as well as of election returns,
tally boards and ballot boxes,
4. to file a protest against any irregularity or violation of law
which they believe may have been committed by the board of
election inspectors or by any of its members or by any
persons, to obtain from the board of election inspectors a
certificate as to the filing of such protest and/or of the
resolution thereon,
5. to read the ballots after they shall have been read by the
chairman, as well as the election returns after they shall have
been completed and signed by the members of the board of
election inspectors without touching them,
6. but they shall not speak to any member of the board of
election inspectors, or to any voter, or among themselves, in
such a manner as would distract the proceedings, and to be
furnished with a certificate of the number of votes in words
and figures cast for each candidate, duly signed and thumb
marked by the chairman and all the members of the board of
election inspectors.

Refusal of the chairman and the members of the board of election
inspectors to sign and furnish such certificate shall constitute an
election offense and shall be penalized under this Code.

OTHER WATCHERS

The duly accredited citizens arm of the Commission shall be entitled
to appoint a watcher in every polling place. Other civic, religious,
professional, business, service, youth and any other similar
organizations, with prior authority of the Commission, shall be
entitled collectively to appoint one watcher in every polling place.


29
ELIGIBILITY OF CANDIDATES

COMMON QUALIFICATIONS:
Qualifications prescribed by law are continuing requirements
and must be possessed for the duration of the officer's active
tenure. Once any of the required qualifications are lost, his
title to the office may be seasonably challenged.
23

Qualifications for President and Vice-President
24

1. Natural-born citizen
2. Registered voter,
3. Able to read and write,
4. At least forty years of age on the day of election, and
5. Resident of the Philippines for at least ten years
immediately preceding such election.

Qualifications for the Batasang Pambansa
25
-
1. natural-born citizen of the Philippines and,
2. on the day of the election, is at least twenty-five years
of age,
3. able to read and write,
4. a registered voter in the constituency in which he
shall be elected, and
5. a resident thereof for a period of not less than six
months immediately preceding the day of the
election.

Sectoral Representative
1. natural-born citizen,
2. able to read and write,
3. resident of the Philippines for a period of not less
than one year immediately preceding the day of the
election, a
4. bona fide member of the sector he seeks to represent,
and in the case of a representative of the agricultural
or industrial labor sector, shall be
5. a registered voter, and
6. on the day of the election is at least twenty-five
years of age.

Youth Sectoral Representative
1. at least be eighteen and not be more than twenty-five
years of age on the day of the election:
2. any youth sectoral representative who attains the age
of twenty-five years during his term shall be entitled
to continue in office until the expiration of his term.

RENUNCIATION of the office for any length of time shall
not be considered as an interruption in the continuity of
the service for the full term for which they were elected.

Residency Requirement
Pres. & VP: 10 years immediately preceding the elections
Senators: 2 years
Members of the HR: 1 year.

Term of Office
Pres. & VP: 6 years (however no person who has
succeeded as Pres. and has served as such for more than 4
years shall be qualified for election to same office at any
time. Pres. is not eligible for re-election. VP 2 successive
terms.
Senators 6 years and two successive terms only.
Members of HR 3 years and for 3 consecutive terms only.

Local Elective Officials

Qualifications
26
.
(a) Citizen of the Philippines; a
(b) Registered voter in the Barangay, municipality, city,
or province or, in the case of a member of the
Sangguniang Panlalawigan, Sangguniang
Panlungsod, or Sanggunian bayan, the district where
he intends to be elected; a
(c) Resident therein for at least one (1) year immediately
preceding the day of the election; and able to read
and write Filipino or any other local language or
dialect.
Governor, vice-governor or member of Sangguniang
Panlalawigan, or Mayor, vice-mayor or member of the
Sangguniang Panlungsod of highly urbanized cities: at
least 23 years old on election day.
Mayor or vice-mayor of independent component cities,
component cities, municipalities: at least 21 years old
on election day.

23
Frivaldo v. COMELEC, 174 SCRA 245; Labo v. COMELEC, 176 SCRA 1
24
Section 63
25
Section 64
26
SECTION 39. of Local Govt Code
Member of the Sangguniang Panlungsod or Sangguniang bayan,
Punong Barangay or member of the Sangguniang Barangay: at
least 18 years old on election day.
SK: 15-21 years old on election day.

e Common to qualifications for registration as a voter and
for vying for an elective office is the matter of residence.

SC TREATS RESIDENCE AS SYNONYMOUS WITH
DOMICILE

Coquilla v. COMELEC case, the term residence is to be
understood NOT in its common acceptation as referring to
dwelling or habitation, but rather to domicile or legal
residence, that is, the place where a party actually or
constructively has his permanent home, where he, no
matter where he may be found at any given time,
eventually intends to return and remain (animus
manendi). A domicle of origin is acquired by every person at
birth. It is usually the place where the childs parents reside and
continues until the same is abandoned by acquisition of new
domicile (of choice).

Facts: In this case, petitioner Coquilla was born of Filipino
parents in Samar, where he grew up until he joined the US Navy
subsequently naturalized as a U.S. citizen. He visited the
Philippines thrice while on leave from the US navy but
remained in the US even after his retirement. In 1998, he came
to the Philippines and secured a residence certificate although
he continued making several trips to the US.

He applied for repatriation. His application was approved and
took his oath as a citizen of the Philippines on November 10,
2000.

On November 21, 2000, he applied for registration as a voter of
Samar which was approved on January 12, 2001. On February
27, 2001, he filed his certificate of candidacy stating therein that
he had been a resident of Samar for two (2) years. A petition for
cancellation of his certificate of candidacy was filed by Alvarez
on the ground of material misrepresentation by stating in his
certificate that he had been a resident for 2 years when in fact
he had resided therein for only about 6 months since November
10, 2000, when he took his oath as a citizen of the Philippines.
The issues raised were as follows:

a) Is Coquilla a resident of Oras for at least one (1)
year before the elections held on May 14, 2001?

HELD: The SC ruled that petitioner lost his domicile of origin
by becoming a U.S. citizen after enlisting in the US navy. From
then on and until November 10, 2000, when he reacquired
Philippine citizenship, he was an alien without any right to
reside in the Philippines save as our immigration laws may have
allowed him to stay as a visitor or as a resident alien.

Further Coquillas contention that he re-established residence
in this country when 1998 when he came back to prepare for the
mayoralty elections by securing a residence certificate was held
to be without merit because his entry in said dates was as a
visa-free balikbayan whose stay as such was valid for
one year only. Hence, the same cannot constitute as a waiver
of his status as an alien and as a non-resident the same having
been acquired only on November 10, 2000

b) Coquilla likewise contend that he was compelled to adopt
American citizenship only by reason of his service in the US
armed forces.

HELD: Coquilla was repatriated not under RA 2630
(which applies to the repatriation of those who lost
their Philippine citizenship by accepting commission
in the armed forces of the US but under RA 8171 )

Romualdez-Marcos v. COMELEC 248 SCRA 301 (1995),
it is the fact of residence, not a statement in a
certificate of candidacy which ought to be decisive in
determining WoN an individual has satisfied the
constitutions residency qualification requirement. The
said statement becomes material only when there is or
appears to be a deliberate attempt to mislead,
misinform, or hide a fact which would otherwise
render the candidate ineligible.

Perez v. COMELEC 317 SCRA 640, where the qualifications
of Aguinaldo, former governor of Cagayan, was at issue when he
filed his certificate of candidacy as member of the House of
Representative in the May 11, 1998 elections, the Court,
reiterating its ruling in Aquino v. COMELEC, explained the
meaning of residence as the place where a party actually or
constructively has his permanent home where he, no matter
where he may be found at any given time, eventually intends to

30
return and remain, while domicile, is that to which the
Constitution refers when it speaks of residence for the
purposes of election law. And, the fact that a person
is a registered voter in one district is not proof
that he is not domiciled in another district.

Torayno Sr., V. COMELEC 337 SCRA 574, the purpose
of the residence for seeking and holding public office, is to
give candidates the opportunity to be familiar with the
needs, difficulties and aspiration, potentials for growth
and all matters vital to the welfare of their constituencies
and on the party of the electorate, to evaluate the
candidates qualifications and fitness for the job they
aspire for.

In this case the residence qualification of Emano who filed
his certificate of candidacy for Mayor of Cagayan de Oro
was at issue. Emano was elected provincial governor of
Misamis Oriental for his third term in 1995. In filing his
certificate of candidacy for governor, he declared his
residence in his certificate of candidacy to be in Misamis
Oriental.

While still the governor, Emano executed on June 14,
1997 a voter registration record in Cagayan de Oro
(geographically located in the Province of
Misamis Oriental, a highly urbanized city, in
which he claimed 20 years of residence. He
subsequently filed his certificate of candidacy for mayor of
the city stating therein that his residence for the preceding
two years and five months was at Cagayan de Oro City.
Emanos opponent, filed a petition for disqualification of
Emano on that ground that he had allegedly failed to meet
the 1 year residence requirement. But prior to the
resolution of the disqualification case, Emano was
proclaimed winner with Damasing trailing second. So,
Torayno et. al filed another Petition before the COMELEC,
this time for QW, where they sought
(1) the annulment of the election of Emano and
(2) proclamation of Damasing who garnered the next
highest number of votes. The COMELEC denied
the Petition, the two cases where consolidated
(QW and Disqualification).

Issue: WoN Emanos disqualified to run as mayor of CDO?

Held: Respondent is an actual resident of Cagayan de Oro
for such a period of time necessary to qualify him to run
for mayor based on the following:
(1) He had actually resided in a house he bought in 1973
in Cagayan de Oro City
(2) Had actually held office there during his three terms
as provincial governor of Misamis Oriental, as the
provincial capitol was located in Cagayan de Oro
(3) And has registered as voter in the city during the
period required by law.

Court gave the reason why the law requires a minimum
period of residence for candidates who seek to be elected
is to prevent the possibility of a stranger or newcomer
unacquainted with the conditions and needs of a
community and not identified with the latter from seeking
an elective office to serve that community. It is also
rooted in the desire that officials of district or localities be
acquainted not only with the metes and bounds of their
constituents but, more important, with the constituents
themselves Emano in this regard cannot be
deemed a stranger or newcomer when he ran for
and was overwhelmingly voted as city mayor
having garnered a margin of 30,000 votes.

Nolasco vs COMELEC 275 SCRA 762
Disqualified for vote-buying.
"Sec. 68. Disqualifications. - Any candidate who, in
an action or protest in which he is a party is declared
by final decision of a competent court guilty of, or
found by the Commission of having:
(a) given money or other material consideration to
influence, induce or corrupt the voters or public
officials performing electoral functions;
(b) committed acts of terrorism to enhance his
candidacy;
(c) spent in his election campaign an amount in
excess of that allowed by this Code;
(d) solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104; or
(e) violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v, and cc, sub-paragraph 6, shall
be disqualified from continuing as a candidate, or if
he has been elected, from holding the office. Any
person who is a permanent resident of or an
immigrant to a foreign country shall not be qualified
to run for an elective office under this Code, unless said
person has waived his status as permanent resident or
immigrant of a foreign country in accordance with the
residence requirement provided for in the elections laws."

Trinidad vs COMELEC 315 SCRA a75
With the complaint for disqualification of private respondent
rendered moot and academic by the expiration of petitioners
term of office therein contested, COMELEC acted with grave
abuse of discretion in proceeding to disqualify petitioner from
his reelected term of office in its second questioned Resolution
on the ground that it comes as a matter of course after his
disqualification in SPA No. 95-213 promulgated after the 1998
election. While it is true that the first questioned Resolution
was issued eight (8) days before the term of petitioner as Mayor
expired, said Resolution had not yet attained finality and could
not effectively be held to have removed petitioner from his
office. Indeed, removal cannot extend beyond the term during
which the alleged misconduct was committed. If a public
official is not removed before his term of office expires, he can
no longer be removed if he is thereafter reelected for another
term.

CERTIFICATES OF CANDIDACY

+ Candidate 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. (Sec. 79, BP 881)

+ Guest Candidacy A political party may nominate and/or
support candidates not belonging to it. (Sec. 70, BP 881) Note
however that this is not applicable in cases of political parties
registered under the party-list system, as nominees must
necessarily be bona fide members of the party.

FILING OF CERTIFICATE OF CANDIDACY

To be eligible for any elective public office, one must file a
certificate of candidacy within the period fixed by the Omnibus
Election Code.

Mode of Filing: Certificates must be filed by the candidate
personally or by his duly authorized representative. No certificate
shall be filed by mail, telegram or facsimile. (Sec. 7, R.A. 7166)

Time of Filing: Certificates of candidacy must be filed in 12
legible copies not later than 120 days before the elections.
(Sec. 11, R.A. 8436)

Place of Filing

The certificates of candidacy shall be filed in the following places:

President
Vice-
President
Senator
COMELEC main office (Manila)
Congressman Provincial election supervisor

If NCR district: File with Regional
Election Director
If legislative district in cities outside
NCR which comprise one or more
legislative districts: File with City
election registrar concerned
Provincial
Offices
Provincial election supervisor
City /
Municipal
Offices
City or municipal election registrar

CONTENTS OF CERTIFICATE OF CANDIDACY

The certificate of candidacy shall state the following:

a. That the person filing the certificate is announcing his
candidacy for the office stated therein and that he or
she is eligible for such office;
b. The political party to which the candidate belongs;
c. Civil status;
d. Date of birth;
e. Residence;
f. Post office address for all election purposes;
g. Profession or occupation;
h. That he / she will support and defend the
Constitution of the Philippines and will maintain faith
and allegiance thereto;

31
i. That he / she will obey the laws, legal orders,
and decrees promulgated by the duly
constituted authorities;
j. That he / she is not a permanent resident or
immigrant to a foreign country;
k. That the obligation imposed by oath is assumed
voluntarily, without mental reservation or
purpose of evasion;
l. That the facts stated in the certificate of
candidacy are true to the best of his knowledge.

EFFECTS OF FILING OF CERTIFICATE OF
CANDIDACY

Sec. 66 of the OEC provides that an appointive official is
considered resigned upon the filing of his/her
certificate of candidacy. The forfeiture is automatic
and the operative act is the moment of filing which shall
render the appointive official resigned (applicable also to
GOCC and can constitute as just cause for termination of
employment in addition to those set forth in the Labor
Code
27
).
Sec. 67 has already been amended R.A. 8436 and RA 9006
which provides that a candidate holding an elective
position whether national or local running for office other
than the one he is holding in a permanent capacity, except
for Pres. and VP, is considered resigned only upon
the start of the campaign period corresponding to
the position for which he/she is running.

Dimaporo v. Mitra, Jr. 202 SCRA 779, October 15,
1991, Dimaporo was elected representative for the 2
nd

district of Lanao del Sur during the 1987 elections. On
January 15, 1990, he filed with the COMELEC a Certificate
of Candidacy for Regional Governor of the ARMM. The
election was scheduled for 17 February 1990. Having lost
in the ARMM elections, he expressed his intention to
resume performing his duties and functions as elected
member of congress.

Having failed in his bid, he points out that the term of
office of members of the HR, as well as the grounds by
which the incumbency of said members may be shortened,
are provided for in the Constitution, which grounds are as
follows:

1) Section 13 Art. VI: Forfeiture of his seat by
holding any other office or employment in the
government or any subdivision, agency or
instrumentality thereof, including go or gocc or
subsidiaries;
2) Section 16 (3): Expulsion as a disciplinary
action for disorderly behaviour
3) Section 17: Disqualification as determined by
resolution of the Electroal Tribunal in an
election contest
4) Section 7, oar. 2: Voluntary Renunciation of
office.
He asserts that under the rule expressio unius est exlusio

HELD:

The fact that the ground cited in Sec. 67, Article I.X of
OEC is not mentioned in the constitution itself as a mode
of shortening the tenure of office of members of congress
does not preclude its application to present members of
congress. Section 2 w/c provides xx all other officers and
employees may be removed from office as provided by
law. Thus, the grounds are not exclusive. The act
contemplated in section 67 of BP 881 of filing of a C0C for
another office constitutes an overt and concrete act of
voluntary resignation of the elective presently held.

A candidate is required to file a certificate of candidacy in
order to make him eligible to run for public office and it is
in the nature of a formal manifestation to the whole world
of the candidates political creed or lack of political creed.

A person who has filed a certificate of candidacy, may,
prior to the election, withdraw the same by submitting to
the office concerned a written declaration under oath.

In the event an official candidate of a political party dies,
withdraws or is disqualified after the last day for filing a
certificate of candidacy, the political party may substitute
another candidate. This is a privilege granted to a political
party.

27
Nicolasora v. CSC 1990 case and PNOC v. NLRC May 31, 1993
SUBSTITUTION OF CANDIDACY

A valid certificate of candidacy is an indispensable requisite in
case of substitution of a disqualified candidate under SEC. 77. A
candidate who dies, withdraws or is disqualified must be an
official candidate of registered or accredited political party and
the substitute candidate must be of the same political party as
the original candidate and must be duly nominated as such by
the political party.

QUESTION: May an independent candidate who has
withdrawn from such candidacy, then affiliate as party
member of a political party, and is thereafter nominated
to substitute its candidate for mayor legally run as
substitute candidate? YES!

Sinaca v. Mula 315 SCRA 266 declared in the affirmative since
there is no condition precedent that a substitute candidate must
have been a member of the party concerned for a certain period
of time before he can be nominated as such as the law merely
provided that the substitute should be a person belonging to
and certified to by the same political party as the candidate to
be replaced.

+ Any person holding a public appointive office, including
members of the AFP and officers and employees of GOCCs,
shall be considered ipso facto resigned upon the filing of
one's certificate of candidacy. (Sec. 66, BP 881) Only the
moment and act of filing are considered. Once the
certificate is filed, the seat is forever forfeited and nothing, save
a new election or appointment, can restore the ousted official.
28

+ Any mass media columnist, commentator, announcer, reporter,
on-air correspondent or personality who is a candidate for any
elective public office shall be deemed resigned, if so required by
his/her employer, or shall take a leave of absence from his/her
work as such during the campaign period. (Sec. 6.6, R.A. 9006)

WITHDRAWAL OF CERTIFICATE

A person who has filed a certificate of candidacy may withdraw
the same prior to the election by submitting to the office
concerned a written declaration under oath.
If a candidate files a certificate of candidacy for more than 1
office, he shall not be eligible for any of them. However, he
may declare under oath the office for which he desires to be
eligible and cancel the certificate of candidacy for the other
office or offices provided that this is done before the expiration
of the period for the filing of certificates of candidacy. (Sec. 73,
BP 881)
The filing of the withdrawal shall not affect whatever civil,
criminal, or administrative liabilities which a candidate may
have incurred. (Sec. 73, BP 881)

RAMIREZ V. COMELEC: Since the certificate of
candidacy for the position of board member was filed by his
party and the said party had withdrawn that nomination, there
was substantial compliance with Sec. 73 of the Omnibus
Election Code. His filing under oath within the statutory period
of his individual candidacy for mayor was a rejection of the
party nomination of the other officer.

Go vs COMELEC 357 SCRA 739

Go filed a certificate of candidancy for mayorship for
Baybay, Leyte. Later, she also filed a certificate of
candidancy for governorship of Leyte. She filed a
withdrawal of her candidacy for mayorship at 12:28 a.m.
March 01, 2001.

Two opponents filed for her disqualification. The petitions were
based on the ground that petitioner filed certificates of candidacy for
two positions, namely, that for mayor of Baybay, Leyte, and that for
governor of Leyte, thus, making her ineligible for both.

Ruling: She is not disqualified for both office. Her submission of her
withdrawal of her certificate of candidacy was a substantial
compliance with the law.

Section 73, Batas Pambansa Blg. 881, otherwise known as the
Omnibus Election Code, provides that:

28
Note: Sec. 67 of BP 881 and the first proviso of Sec. 11 of R.A. 8436
(which states that "Any elective official, running for any officer other than one
which he is holding in a permanent capacity, except for President and Vice-
President, shall be considered ipso facto resigned upon the start of the
campaign period") have been repealed by Sec. 14 of R.A. 9006 (Fair
Election Act of 2001).

32
"SEC. 73. Certificate of candidacy.- No person shall be eligible
for any elective public office unless he files a sworn certificate
of candidacy within the period fixed herein.

"A person who has filed a certificate of candidacy
may, prior to the election, withdraw the same by
submitting to the office concerned a written
declaration under oath.

"No person shall be eligible for more than one office
to be filled in the same election, and if he files his
certificate of candidacy for more than one office, he
shall not be eligible for any of them. However, before
the expiration of the period for the filing of
certificates of candidacy, the person who has filed
more than one certificate of candidacy may declare
under oath the office for which he desires to be
eligible and cancel the certificate of candidacy for the
other office or offices."

There is nothing in this Section 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 COMELEC, the
office of the regional election director concerned, the office of
the provincial election supervisor of the province to which the
municipality involved belongs, or the office of the municipal
election officer of the said municipality.

Dimaporo vs Mitra Jr. 202 SCRA 779

Dimaporo was duly elected congressman of ARMM.
During the governatorial race, he filed a certificate of
candidacy. Upon his filing of his candidacy, his name
in the roll of congressmen was blotted. He did not win
in the governatorial race. He wants to be back in office
as congressman.

Ruling: He lost his position ipso facto when he filed his
certificate of candidacy for governor.

Section 67, Article IX of B.P. Blg. 881 reads: "Any elective
official whether national or local running for any office other
than the one which he is holding in a permanent capacity
except for President and Vice-President shall be considered
ipso facto resigned from his office upon the filing of his
certificate of candidacy."

Rationale of the law: this statutory provision seeks to ensure
that such officials serve out their entire term of office by
discouraging them from running for another public office and
thereby cutting short their tenure by making it clear that should
they fail in their candidacy, they cannot go back to their former
position. This is consonant with the constitutional edict that all
public officials must serve the people with utmost loyalty and
not trifle with the mandate which they have received from their
constituents.


33

DISQUALIFICATION OF A CANDIDATE

BEFORE ELECTIONS

Under the OEC

1) HAS BEEN DECLARED BY COMPETENT
AUTHORITY INSANE OR
INCOMPETENT
+ Incompetence- the same may also refer not only
to mental illness, disease or physical disability
but also other causes which may include:
a. minority or
b. lack of residence requirement;
c. any person who has been sentenced by
final judgment for subversion,
insurrection rebellion; or for any
offense for which carries a penalty of
more than 18 months or for a crime
involving moral turpitude, shall be
disqualified to be a candidate and to hold
any office.
29

DISQUALIFICATION IS REMOVED:
1. Plenary pardon or granted amnesty; or
2. upon declaration by a competent authority that
said insanity or incompetence had been
removed;
3. expiration of a period of 5 years from his service
of sentence unless of course within the same
period he again becomes disqualified.

2) GUILTY OF GIVING MONEY OR
MATERIAL CONSIDERATION TO
INFLUENCE, INDUCE OR CORRUPT
VOTERS OR PUBLIC OFFICIAL
PERFORMING ELECTORAL
FUNCTIONS; THOSE WHO HAVE
COMMITTED TERRORISM TO
ENHANCE HIS CANDIDACY, HAVING
SPEND THE ELECTION CAMPAIGN
MORE THAN REQUIRED BY LAW
P10.00/RV/P5.00
30

3) Sec. 69, a petition to abate a NUISANCE
CANDIDATE the COMELEC may motu
propio or upon verified petition of an
interested party, refuse to give due course to or
cancel a certificate of candidacy if it is shown
that it is filed in contemplation of a nuisance
candidate or cancel the same if already filed.
This is an exception to the ministerial duty of
the COMELEC and its officers to receive a
certificate of candidacy under Sec. 76

A NUISANCE Candidate is

1. one who files his certificate to put the
election process in mockery or disrepute;
2. or to cause confusion among the
candidates by the similarity of names
(because in the appreciation of ballots,
where there are two candidates with the
same name or surname and only the
name or surname is written, it will be
considered a stray vote and will not be
counted for either of the candidate
unless of course one of the candidate
with the same name or surname is an
incumbent because of the equity of the
incumbent rule) or
3. By other circumstances or acts which
clearly demonstrate that the candidate
has no bona fide intention to run for
office, thus would prevent the faithful
determination of the true will of the
people.

A petition to declare a candidate a nuisance
candidate shall be filed by any registered candidate
for the same office within 5 days from the last
day of the filing of the certificate of
candidacy.

29
Sec. 12
30
Sec. 68
Jarilla v. COMELEC 232 SCRA 758, a
disqualification case was filed against a candidate on
the grounds that he is not a RV. COMELEC
dismissed the case on the ground that it was filed out
of time for the filing of petition to abate a nuisance
candidate. The SC ruled that the dismissal is
not applicable where the grounds referred to
is the ineligibility of a candidate which may be
filed anytime in a petition for QW.

4) A verified petition seeking to deny due course or to
cancel a certificate of candidacy may be filed by any
person on the ground that the candidate made
MATERIAL MISREPRESENTATION IN HIS
CERTIFICATE OF CANDIDACY.
31
Section 5 of
RA 6646 and Rule 23 of the COMELEC Rules of
procedure provide that the petition shall be filed
within 5 days from the last day for the filing of a
certificate of candidacy.

False representation pertains to material
matter affecting substantive rights of a
candidate the right to run for elective post for
which he filed the certificate of candidacy. The
material misrepresentation must refer to the
qualifications for the office, such as residence,
citizenship, age.
In addition to the requirement of materiality, the
false representation must consist of
deliberate attempt to mislead, misinform or
hide a fact which would otherwise render a
candidate ineligible. It must be made with an
intention to deceive the electorate as to ones
qualifications for public office. The use of a surname,
when not intended to mislead or deceive the public as
to ones identity is not within the scope of the
provision.

Cases:

Salcedo II v. COMELEC 312 SCRA 447, a candidate who
used her husbands name even though their marriage was void
was not guilty of misrepresentation concerning a material fact.

Coquilla vs COMELEC, Section 5 & & of RA 6646
provide that proceedings for denial or cancellation of a
certificate of candidacy is summary in nature. Thus, the
holding of a formal hearing is not mandatory. Coquilla however
cannot claim denial of the right because records show that he
filed a verified answer. A Memorandum and a Manifestation
before the COMELEC in which he submitted documents relied
by him in his petition.

Abella v. COMELEC 210 SCRA 253, a candidates
statement in her certificate of candidacy for the position of
governor of Leyte that she was a resident of Kananga, Leyte
when this was not so or that the candidate was a natural-born
Filipino when in fact he had become an Australian citizen in
Labo vs. COMELEC 211 SCRA 297, constitutes a ground for
the cancellation of a certificate of candidacy.

GROUND FIOR DQ UNDER THE LOCAL GOVERNMENT
CODE (SEC. 40)
(Qualifications of local elective candidates under the LGC was asked
in the 1999 Bar)

1) THOSE SENTENCED BY FINAL JUDGMENT FOR AN
OFFENSE INVOLVING MORAL TURPITUDE OR FOR
AN OFFENSE PUNISHABLE BY ONE YEAR OR MORE
IMPRISONMENT, WITHIN 2 YEARS* AFTER
SERVING SENTENCE.

a candidate for an elective office may likewise be
disqualified on the ground that the candidate has been
sentenced for a crime involving moral turpitude or for an
offense punishable by one (1 year or more imprisonment,
within 2 years from serving sentence.
32

NOTE: that the 1
st
ground for disqualification consists of two
(2) parts, namely:
a. those sentenced by final judgment for an offense
involving moral turpitude, regardless of the period of
imprisonment; and (2) those sentenced by final
judgment for an offense, OTHER THAN one
involving moral turpitude, punishable by one (1) year
or more imprisonment, within 2 years after serving
sentence.

31
Sec. 78 of the OEC
32
Sec. 12 of the OEC & Section 40 of RA 7160

34
+ MORAL TURPITUDE anything done
contrary to justice, honesty, modesty or
good morals. In general, ALL crimes of which
fraud or deceit is an element or those which are
inherently contrary to rules of right conduct,
honesty or morality in a civilized community,
involve moral turpitude. They include such
offenses as estafa, falsification of public
document, smuggling, bribery, murder, bigamy,
abduction, seduction, concubinage and violation
of BP 22.

As discussed earlier, Sec. 40 of RA 7160
limits the disqualification to 2 years* after
service of sentence. But this should now be read
in relation to Sec. 11 of RA 8189 which
enumerates those who are disqualified to
register as a voter. *Thus, the 2 year
disqualification period under Sec. 40 is
now deemed amended to last 5 years
from service of sentence after which
period the voter will be eligible to
register as a voter and to run for an
elective public office.

2) THOSE CONVICTED BY FINAL JUDGMENT FOR
VIOLATING THE OATH OF ALLEGIANCE TO THE
REPUBLIC.

3) FUGITIVES FROM JUSTICE IN CRIMINAL AND
NON-POLITICAL CASES

Marquez jr. v. COMELEC and Rodriguez
259 SCRA FUGITIVE FROM JUSTICE
refers to a person who has been convicted by
final judgment. The SC said that when a person
leaves the territory of a state not his own,
homeward bound and subsequently learns of
the charges filed against him while he is in the
service of his country, the fact that he does not
subject himself to the jurisdiction of the former
state does not outrightly qualify him as a
fugitive from justice. In fact, when Rodriguez
left the US, there was no complaint and arrest
warrant yet and there would be no basis in
saying that he is running away from any
prosecution or punishment.

4) THOSE REMOVED FROM OFFICE AS A RESULT
OF AN ADMINISTRATIVE CHARGE

Rodolfo E. Aquinaldo vs COMELEC 212 SCRA
768, a public official cannot be removed for
administrative conduct committed during a
prior term as his re-election to office operates
as a condonation of the officers previous
misconduct to the extent of cutting of the right to
remove him therefore.

Grego v. COMELEC 274 SCRA 481, the Court
ruled that Sec. 40 of RA 7160 does not have any
retroactive effect. In this case a Deputy Sheriff was
removed for serious misconduct in 1981. He run in
1992 & 1995. His removal in 1981 cannot serve as
basis for his disqualification. Laws have prospective
effect.

5) PERMANENT RESIDENTS IN A FOREIGN
COUNTRY OR THOSE WHO HAVE ACQUIRED
THE RIGHT TO RESIDE ABROAD AND
CONTINUE TO AVAIL OF THE SAME RIGHTS
AFTER THE EFFECTIVITY OF RA 7160.

Caasi v. CA 191 SCRA 229 (1990). A
disqualification case was filed against Merito Miguel
under Sec. 68 of the OEC by rival candidate Caasi for
the position of Municipal Mayor of Bolinao,
Pangasinan on the ground that Miguel was a green
card holder, therefore, a permanent resident of the
U.S. and not Bolinao. While Miguel admitted having
possessed a green card he however denied that he is a
resident of the US as his obtaining a green card is
merely for convenience in order that he may freely
enter the US for his periodic medical examination
and to visit his children. The COMELEC dismissed
the disqualification case holding that the possession
of a green card did not sufficiently establish Miguels
abandonment of his resident in the Philippines. The
SC on review however, reversed the decision of the
COMELEC stating that to be qualified to run for
elective office in the Phils., the law requires
that the candidate who is a green card holder
must have waived his status as a permanent
resident or immigrant of a foreign country. His act
of filing a certificate of candidacy for elective office in the
Philippines, did not of itself constitute a waiver of his
status as permanent resident or immigrant of the US.

6) INSANE OR FEEBLE MINDED

7) THOSE WITH DUAL CITIZENSHIP (ALLEGIANCE)

e The SC has ruled in various ways the issue as to whether a
candidate for electoral position is a Filipino citizen, in
cases of doubt, on the issue of citizenship. The rulings of
the SC however is not consistent on the matter as will
be noted in several cases.

AZNAR V. COMELEC 185 SCRA 703: the qualification of
Emilio Lito Osmea to be elected governor of Cebu was
raised. Aznar filed a disqualification case against him on the
ground that he is allegedly not a Filipino citizen but a citizen of
the US being a holder of an alien Certificate of Registration.
Osmea maintained that he is a Filipino citizen being the
legitimate child of a Filipino; a holder of a valid and subsisting
Philippine passport; continuously residing in the Phils. Since
his birth and has not gone out of the country for more than six
months and a RV in the Philippines since 1965. Court ruled
that the mere fact that respondent Osmea was holder
of a certificate stating that he is an American citizen
did not mean that he is no longer a Filipino & that an
application for an ACR was not tantamount to
renunciation of his Philippine Citizenship.

Labo Jr. V. COMELEC 176 SCRA 1 (1989), a
disqualification case was filed against Labor Jr. was elected
Mayor of Baguio City by Luis Lardizabal on the ground that he
was not a citizen of the Philippines having been naturalized as
an Australian citizen, which he did not contest and for having
categorically declared in a number of sworn statements that he
was an Australian citizen. Based on these evidences Labo Jr.
was alleged to be ineligible for the elective position. While
Labo Jr. asserts that his naturalization in Australia
was annulled after it was found that his marriage to
the Australian was bigamous, this circumstance alone
did not automatically restore his Philippine
cirizenship.

MERCADO V. MANZANO G.R. NO. 135083 MAY 25,
1999: The case was a case of the application of the jus soli and
jus sanguinis on the same person. Manzano was born in
California, acquired US citizenship by operation of the US
Constitution under the principle of jus soli. He was also a
natural born Filipino citizen by operation of the 1935
Constitution, as his father and mother were Filipino at the time
of his birth. At the age of 6, his parent brought him to the
Philippines using an American passport as travel document.
His parents registered him as an alien with the Philippine
bureau of Immigration, was issued an ACR.

Held: The circumstances did not result in the loss of his
Philippine citizenship, as he did not renounce it and did not
take an oath of allegiance to the US and the fact that respondent
Manzano was registered as an American citizen in the BID &
was holding an American passport on April 22, 1997, only a year
before he filed a certificate of candidacy for Vice-Mayor of
Makati, these were just assertions of his nationality
before the termination of his American citizenship.

In ruling that Manzano is a Filipino citizen, the court
distinguished dual citizenship with dual allegiance :

Dual Citizenship Dual Allegiance
Arises when, as a result of the
concurrent application of the
different laws of two or more
states, a person is
simultaneously considered a
national by the said states,
such as a situation when a
person whose parents are
citizens of a state which
adheres to the principle of jus
sanguinis is born in a state
which follows the doctrine of
jus soli. Such person ipso
facto, and without any
voluntary act on his part, is
concurrently considered a
citizen of both states.
(ENTAILS A VOLUNTARY
ACT ie. Taking an oath of
allegiance to another State)

Article IV Section 5 of the
1987 Constitution on dual
allegiance (Dual
allegiance of citizens is
inimical to the national
interest and shall be
dealt with by law.)


35
CIRILO VALLES V. COMELEC & LOPEZ G.R.
#138000 AUGUST 9, 2000: The mere fact that
Lopez was a holder of an Australian passport and
had an ACR are not acts constituting an effective
renunciation of citizenship and do not militate
against her claim of Filipino citizenship. For
renunciation to effectively result in the lost of citizenship,
the same must be express (Com. Act 63, Sec. 1).

An ACR does not amount to an express
renunciation or repudiation of ones citizenship
33
.
Similarly, her holding of an Australian passport as in the
Manzano case, were likewise mere ACTS OF
ASSERTIONS BEFORE SHE EFFECTIVELY
RENOUNCED THE SAME. Thus, at the most, Lopez had
dual citizenship she was an Australian and a Filipino, as
well.

The phrase dual citizenship under RA Sec. 40(d)
of RA 7160 and Sec. 20 of RA 7854 must be
understood as referring to dual allegiance. In
including sec. 5 Article IV on citizenship, the concern of
the Constitutional Commission was not dual citizens per
se but with naturalized citizens who maintain their
allegiance to their countries of origin even after their
naturalization. Hence, persons with mere dual
citizenship do not fall under this disqualification.
Unlike those with dual allegiance, who must, therefore, be
subject to strict process with respect to the termination of
their status, the filing of the certificate of candidacies for
candidates with dual citizenship is sufficient election of
Philippine citizenship as to terminate their status as
persons with dual citizenship considering that their
condition is the unavoidable consequence of conflicting
laws of different states.

The fact that Lopez had dual citizenship did not
automatically disqualify her from running for
public office. For candidates with dual
citizenship, it is enough that they elect Phil.
Citizenship upon the filing of their certificate of
candidacy, to terminate their status as persons
with dual citizenship. The filing of the certificate
of candidacy sufficed to renounce foreign
citizenship effectively removing any disqualification as a
dual citizen. In the Certificate of Candidacy, one declares
that he/she is a Filipino citizen and that he/she will
support and defend the Constitution of the Philippines
and will maintain true faith and allegiance thereto. Such
declaration, which is under oath, operates as an
effective renunciation of foreign citizenship.

Frivaldo v. COMELEC 174 SCRA 245 (1989).
Frivaldo was proclaimed governor-elect of Sorsogon and
subsequently assumed office. A disqualification was filed
on the ground that he was not a Filipino citizen, having
been naturalized in the US in 1983, which he
admitted but which he undertook only to protect
himself against then President Marcos. The SC
found Frivaldo disqualified for not having
possessed the requirement of citizenship which
cannot be cured by the electorate, especially if they
mistakenly believed, as in this case, that he candidate was
qualified.

Republic v. dela Rosa, 232 SCRA 785, the
disqualification of Frivaldo was again at issue. Frivaldo
opted to reacquire his Phili. Citizenship thru
naturalization but however failed to comply with
the jurisdiction requirement of publication, thus,
the court never acquired jurisdiction to hear the
naturalization of Frivaldo. He was again, disqualified.

Frivaldo later reacquired Philippine citizenship.
In a 1996 decision, Frivaldo v. COMELEC 257
SCRA 721 (1996), he obtained the highest number of
votes in 3 consecutive elections but was twice declared by
the SC to be unqualified to hold office due to his alien
citizenship. He claimed to have reassumed his lost Phil.
Citizenship thru repatriation. It was established that he
took his oath of allegiance under the provision of PD 725
at 2 pm on June 30, 1995, much later than the time he
filed his certificate of candidacy. The law does not
specify any particular date or time when the
candidate must possess citizenship, unlike that of
residence and age as Sec. 39 of RA 7160
specifically speaks of qualification of elective
officials, not candidates thus, the citizenship
requirement in the local government code to be

33
AZNAR V. COMELEC 185 SCRA 703
possessed by an elective official at the latest as of the
time he is proclaimed and at the start of the term of
office to which he has been elected. But to remove all
doubts on this important issue, the Court held that the
repatriation of Frivaldo retroacted to the date of the
filing of his application on August 17, 1994 and being a
former Filipino who has served the people repeatedly
and at the age of 81, Frivaldo deserves a liberal
interpretation of the Philippine laws and whatever
defects there were in his nationality should now be
deemed mooted by his repatriation.(Finally!)

8) THREE-TERM LIMIT

Another ground which can serve as legal ground for disqualifying a
candidate is the 3 TERM LIMIT OR HAVING SERVED 3
CONSECUTIVE TERMS.

No local elective official shall serve for more than three (3)
consecutive terms in the same position. VOLUNTARY
RENUNCIATION of the office for any length of time
shall not be considered as an interruption in the
continuity of service for the full term for which the
elective official concerned was elected
34
.

Adormeo v. COMELEC & Talaga, Jr., G.R. No. 147927
February 4, 2002 and citing Borja v. COMELEC 295
SCRA 157 and Lonzanida V. COMELEC 311 SCRA
602: the term limit for elective local officials must be taken
to refer to the right to be elected as well as the right to
serve in the same elective position.

Thus, two (2) conditions for the application of the
disqualification must concur:

That the official concerned has been elected for
three consecutive terms in the same local government
post; and
That he has fully served three consecutive terms.

Adormeo v. COMELEC, Talaga Jr., was elected mayor in
May 1992, he served the full term, was re-elected in 1995-
1998 but lost in the 1998 elections to Tagarao. In the recall
elections of May 2000, Talaga Jr. won and served the
unexpired term of Tagarao until June 30, 2001.
Talaga Jr. filed his certificate of candidacy for the same
position in the 2001 elections which candidacy was
challenged on the ground that Talaga Jr. is already
barred by the 3 term limit rule. Adormeo contends that
Talagas candidacy violated Section 8, Article X of the
Constitution which states that the term of office of local
elective officials shall be three years and no such official shall
serve for more than three consecutive term. To further
bolster his case, he adverts to the comment of Fr. Joaquin
Bernas who stated that in interpreting said provision that if
one is elected representative to serve the unexpired
term of another, that unexpired term, no matter how
short, will be considered one term for the purpose of
computing the number of successive terms allowed.

ISSUE: Was Talaga disqualified to run for mayor of
Lucena City in the May 14, 2001 elections.

HELD: Qualified! The term limit for elective local officials
must be taken to refer to the right to be elected as
well as the right to serve in the same elective
position considering that the continuity of his mayorship
was disrupted by his defeat in the 1998 elections which is
considered as an interruption in the continuity of service.
The SC further held that the comment of Fr. Bernas is
pertinent only to members of the House of
Representatives, there being no recall election
provided for members of Congress, unlike local
government officials.

LONZANIDA V. COMELEC July 28, 1998,

Facts: Lonzanida served two consecutive terms as
municipal mayor Zambales prior to the May 8, 1995
elections. In the May `1995 elections, Lonzanida ran for
Mayor and was again proclaimed winner. He assumed office
and discharged the duties thereof. Alvez filed an election
protest which in a decision dated January 9, 1997 declared a
failure of elections rendering the results for the office of the
mayor of San Antonio as null and void. The office of the
mayor of said municipality was declared vacant. the
COMELEC on Nov. 13, 1997, resolved the election protest
filed by Alvez in his favor after determining that Alvez got the
plurality of votes. The COMELEC issued a writ of execution

34
Section 43 (b) of RA 7160, Local Government Code

36
ordering Lonzanida to vacate the post, which he obeyed
and Alvez assumed office for the remainder of the term.

Lonzanida again filed his certificate of candidacy for
Mayor in the 1998 elections and his opponent timely
filed a petition to disqualify him for running for mayor
on the ground that he had served 3 consecutive terms in
the same post.

ISSUE: Whether Lonzanidas assumption of
office from May 1995 to March 1998 may be
considered as service of one full term for the
purpose of applying the 3-year limit for elective
local government officials.

HELD: Qualified! The two requisites for the
application of the 3-term limit are wanting.

First, petitioner cannot be considered as having been
elected to the post in the May 1995 elections, and
second, the petitioner did not fully serve the 1995-1998
mayoralty TERM BY REASON OF INVOLUNTARY
RELINQUISHMENT OF OFFICE (Sec. 43 of RA 7169 &
Sec. 8 of Art. X of the Constitution, requires the
renunciation to be voluntary to be considered as an
interruption in the continuity of service for the full term
for which the election official concerned was elected.)
Take note that he was not duly elected in the 1995
elections as his proclamation as winner was declared
null and void.

A proclamation subsequently declared void is
no proclamation at all and while a proclaimed
candidate may assume office on the strength of
the proclamation of the BOC, he is only a
presumptive winner who assumes the office
subject of the final outcome of the election
protest.

Had the COMELEC lost jurisdiction? Yes. The
proclamation nor assumption of office of a candidate
against whom a petition for disqualification is pending
before the COMELEC does not divest the COMELEC of
jurisdiction to continue hearing the case and resolve it
on the merits.

Borja v. COMELEC September 3, 1998: Issue:
whether a Vice-Mayor who succeeds to the office of
mayor by operation of law and serves the remainder of
the term is considered to served a term in that office for
the purpose of the 3-term limit.

Sec. 8 of Art X of the Constitution contemplates service
by local officials for 3 consecutive terms as a result of
election. The first sentence speaks of the term of office
of elective local officials and bars such official(s) from
serving for more than 3 consecutive terms. The term
served must therefore be one for which the
official concerned was elected. The purpose of
this provision is to prevent a circumvention of the
limitation on the number of terms an elective local
official may serve. Conversely, if he is not serving a
term for which he was elected because he is simply
continuing the service of the official he succeeds, such
official cannot be considered to have fully served the
term notwithstanding his voluntary renunciation of
office prior to its expiration. (Asked in the 2001Bar)

EFFECT OF DISQUALIFICATION CASES

e Any candidate who has been declared by final judgment to
be disqualified shall not be voted for, and the votes
cast for him shall not be counted.
35

e not declared by final judgment: but is voted for and
received the winning number of votes in such election, the
COMELEC shall continue with the trial and, upon
motion of the complainant or any intervenor, may
during the pendency order the suspension of the
proclamation of such candidate whenever the
evidence of quilt is strong.

Perez v. COMELEC & Aguinaldo, supra, the
disqualification case against Aguinaldo was decided on
May 10, 1998 the day before the May 11, 1998 elections
and was proclaimed on May 16, 1998 and assumed office
on May 17, 1998. Perez filed a Motion for Reconsideration
on May 22, 1998 which the COMELEC denied in a
decision dated June 11, 1998. The SC ruled that the
COMELEC had no jurisdiction to entertain the MR

35
Sec. 72 of the OEC and Sec. 6 of RA 6646
because the proclamation of Aguinaldo already barred
the action. The fact that Aguinaldo was already
proclaimed, it is already the HRET who has
jurisdiction over the same having exclusive original
jurisdiction over the petition for declaration of
Aguinaldos ineligibility.

Bagatsing v. COMELEC 320 SCRA 220, a disqualification
case was filed by candidates Bagatsing, Maceda and Lopez
against Atienza 7 days after the elections for allegedly
disbursing public funds within the 45 day prohibitory period,
which amount was alleged to be distributed as financial
assistance to the public school teachers of Manila who manned
the precinct polls for the said elections. Atienza was proclaimed
Mayor of the City of Manila. COMELEC First Division
dismissed the disqualification case and denied the motion to
suspend proclamation pending their MR with the COMELEC en
banc, petitioners filed a petition with the

Issue: WoN the COMELEC first Division committed grave
abuse of discretion in dismissing the disqualification case
against Atienza and referring the same to its law department for
PI.

Held: A complaint for disqualification filed BEFORE the
election must be inquired into by the COMELEC for the purpose
of determining whether the acts complained of have in fact been
committed. When the inquiry results in a finding before the
election, the COMELEC shall order the candidates
disqualification. In the case the complaint was not
resolved before the election, the COMELEC motu
propio or on motion of any of the parties, refer the said
complaint to the Law Department of the COMELEC for
PI. COMELEC was held not to have abused its discretion in
not ordering the suspension of the proclamation conformably
with its COMELEC Reso 2070 which provides that where a
complaint is filed after the elections but before proclamation, as
in this case, the complaint must be dismissed as a
disqualification case but shall be referred to the law department
for PI.

In the event the law department makes a prima facie finding of
guilt and the corresponding information has been filed with the
appropriate trial court, the complainant may file a petition for
suspension of the proclamation of respondent with the court
before which the criminal case is pending and that court may
order the suspension of the proclamation if the evidence of guilt
is strong. Since these circumstances are not present in this
case, not legal ground warrants the suspension of the
proclamation.


37

CAMPAIGN AND ELECTION PROPAGANDA

ELECTION PERIOD
90 days before the date of the election and 30
days thereafter.

CAMPAIGN PERIOD (excludes the day before and the day
of the elections)
PRES., VP AND SENATORS starts 90 days
before the date of election which coincides with the
start of the election period.
Members of the HR and local officials 45
days
Brgy. Officials 15 days

POLITICAL ADVERTISEMENT

FOR PRINTED AND BROADCAST MEDIA
Allowed (RA 9006) provided the said advertisement shall
bear and be identified by reasonably legible or audible
words Political advertisement paid for, follows by
the true and correct name and address of the candidate or
party for whose benefit the election propaganda was
printed or aired.

If the broadcast is given free of charge by the radio or
television station, it shall be identified by the words
airtime for this broadcast was provided free of
charge by followed by the true and correct name and
address of the broadcast entity.

Provided, that said print, broadcast donated shall
not be published or printed without the written
acceptance of the candidate or political party
which acceptance shall be attached to the
advertising contract and submitted to the
COMELEC.

GUIDELINES of POLITICAL ADVERTISEMENTS
WHETHER BY PURCHASE OR DONATION

1. PRINT ADVERTISEMENTS

Shall not exceed page in broadsheet and
page in tabloids 3 x a week per newspaper,
magazine or other publications during the campaign
period.

2. TELEVISION/RADIO ADVERTISEMENTS

National Candidates/ Registered Political Party
Not more than 120 minutes of TV advertisement and
180 minutes of radio.

Local Elective Offices
not more than 60 minutes of TV advertisement and
90 minutes of radio.

COMELEC TIME AND SPACE

PRINT SPACE: COMELEC shall pay just
compensation (PPI ruling) in at least 3
NEWSPAPERS OF GENERAL CIRCULATION which
COMELEC shall allocated free of charge to the
national candidates. Broadcast network (radio and
TV), free of charge to COMELEC.

LIMITATIONS IN BROADCASTING OF ELECTION
ACCOUNTS

COMELEC shall ensure that radio and television or
cable television broadcasting entitles shall not allow
the scheduling of any program or permit any sponsor
to manifestly favor or oppose any candidate or
political party or unduly or repeatedly referring to or
including said candidate and/or political party in
such program respecting, however, in all instances
the right of said broadcast entities to air accounts of
significant news or new worth events and views on
matters of public interest.

RESTRICTIONS ON MEDIA PRACTITIONERS

Any mass media columnist, commentator, reported or
non-air correspondent or personality who is a candidate
for any elective office or is a campaign volunteer for or
employed or retained in any capacity by any candidate or
political party SHALL BE DEEMED RESIGNED, if so
required by their employer, or SHALL TAKE A
LEAVE OF ABSENCE FORM HIS/HER WORK AS
SUCH DURING THE CAMPAIGN PERIOD. Any
media practitioner who is an official of a political party or
member of the campaign staff of a candidate or political
party shall not use his/her time or space to favor any
candidate or political party.

No movie, cinematography or documentary portraying the
life or biography of a candidate shall be publicly exhibited
in a theater, television stations or any public forum
DURING THE CAMPAIGN PERIOD or those portrayed by
an actor or media personality who is himself a candidate.

ELECTION SURVEYS

+ Election Surveys refers to the measurements of opinions
and perceptions of the voters as regards a candidates
popularity, qualifications, platforms or matter of public
discussion in relation to the election, including voters
preference or candidates or publicly discussed issued during the
campaign period. The person or entity who publishes a survey
is required to include the following information:

1. Name of the person, candidate, party or organization
who COMMISSIONED OR PAID FOR THE
SURVEY.
2. Name and address of the person or polling firm
who conducted the survey.
3. PERIOD during which the survey was conducted,
methodology used, including the number of individual
respondents and the areas form which they were
selected, and the specific questions asked.
4. Margin of error of the survey

The survey together with the raw data gathered to support the
conclusions shall be available for inspection, copying
and verification by the COMELEC, or by the registered
political party or any COMELEC accredited citizens
arm.

LIMITATIONS

Surveys affecting national candidates shall not be
published 15 DAYS BEFORE AN ELECTION and surveys
affecting local candidates shall not be published 7 DAYS
BEFORE AN ELECTION.

POSTING OF CAMPAIGN MATERIALS

Political parties and party-list groups may be authorized by the
COMELEC COMMON POSTER AREAS FOR THEIR
CANDIDATE IN NOR MORE THAN 10 PUBLIC PLACES
such as plazas, markets, barangay centers and the like, wherein
candidates can post, display or exhibit election propaganda.
Size of the poster areas shall not exceed 12 X 16 feet or
its equivalent. With respect to independent candidates, may
likewise avail of this but the difference is merely on the size
which shall not exceed 4 x 6 feet or its equivalent.

Francisco Chavez v. COMELEC G.R. No. 162777, 31
August 2004) (read attached)


38

CANVASSING BODIES

The CANVASS OF VOTES refers to the process by
which the results in the election returns are tallied and
totalled.

CERTIFICATES OF CANVASS are official tabulations
of votes accomplished by district, municipal, city and
provincial canvassers based on the election returns, which
are the results of the ballot count at the precinct level.

Canvass proceedings are administrative and summary
in nature.

Position Canvassing Body
Pres. & Vice Pres.
(Sec. 4, Art. VII, Sec. 30
RA 7166)
Congress
Senators and Regional
Officials ( Sec. 2 EO 144
March 2, 1987)
COMELEC
Members of the HR and
Provincial officials (RA
7166)
Provincial Board of
Canvassers composed of
the PES, Prosecutor and
provincial official of the
DECS.
Members of HR and
Municipal Officials
District BOC in each
legislative district in Metro
Manila
Member of the HR, city
and municipal officials,
City and Municipal
BOC composed of city or
municipal election officer,
city pros. And DECS
Superintendent.

Composition of the Board of Canvassers (Sec. 221, BP
881, as amended by Sec. 20, RA 6646)

However, in case of non-availability, absence,
disqualification due to relationship, or incapacity for any cause
of any of the members of the Board of Canvassers, the
COMELEC may appoint the following as substitutes, in the
order named:

PROVINCIA
L
CITY MUNICIPAL

Chairma
n

Ranking
lawyer of the
COMELEC

Ranking lawyer
of the COMELEC

Ranking
lawyer of the
COMELEC

Vice
Chairma
n

(1) Provincial
auditor

(2) Registrar
of Deeds

(3) Clerk of
Court
nominate
d by the
Executive
Judge of
the RTC;

(4) Any other
available
appointiv
e
provincia
l official

(1) City auditor
or
equivalent;

(2) Registrar of
Deeds;

(3) Clerk of
Court
nominated
by the
Executive
Judge of
the RTC;

(4) Any other
available
appointive
city official

(1) Municipal
Administ
rator;

(2) Municipal
Assessor;

(3) Clerk of
Court
nominate
d by the
Executiv
e Judge
of the
MTC;

(4) Any other
available
appointiv
e
municipa
l official

Member

Same as for
Vice-
Chairman

Same as for Vice-
Chairman

Same as for
Vice-
Chairman

PROHIBITIONS ON THE BOARD OF CANVASSERS

The chairman and the members of the Board of Canvassers shall
not be related within the 4
th
civil degree of consanguinity or
affinity to any of the candidates whose votes will be canvassed
by said board, or to any member of the said board. (Sec. 222,
B.P. 881)

No member or substitute member of the different boards of
canvassers shall be transferred, assigned or detailed outside of
his official station, nor shall he leave said station without prior
authority of the COMELEC during the period beginning election
day until the proclamation of the winning candidates. (Sec.
223, B.P. 881)

No member of the board of canvassers shall feign illness in order
to be substituted on election day until the proclamation of the
winning candidates. Feigning of illness constitutes an election
offense. (Sec. 224, B.P. 881)

JURISDICTION OF COMELEC OVER THE BOARD OF
CANVASSERS

COMELEC has direct control and supervision over the board of
canvassers. Any member of the Board may, at any time, be
relieved for cause and substituted motu proprio by the
COMELEC. (Sec. 227, B.P. 881)

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

NATURE OF THE BOARD OF CANVASSERS DUTIES

A canvassing board's task is to compile and add the results as
they appear in the election returns transmitted to it. (Guiao
v. COMELEC, 137 SCRA 366)

When Ministerial

Once the COMELEC or the board of canvassers is satisfied in
the authenticity of the returns, it has no power to look beyond
the face thereof, and its task of tallying is merely ministerial.
When there is an error in the computation which is discovered
after proclamation, the board of canvassers can simply correct
the error; the remedy being purely administrative.

When Quasi-Judicial

The board of canvassers must be satisfied that the election returns
submitted to it are genuine and authentic. Thus, the board of
canvassers will not be compelled to canvass the returns when they
are found to be:

obviously manufactured;
contrary to probabilities;
clearly falsified; or
not legible

PROVINCI
AL
CITY
MUNICIPA
L
Chair
man
Provincial
election
supervisor or
lawyer in the
regional
office of the
COMELEC
City election
registrar or a
lawyer of
COMELEC;

In cities with more
than 1 election
registrar,
COMELEC shall
designate the
election registrar
who shall act as
chairman
Election
registrar or a
representativ
e of
COMELEC
Vice
Chair
man

Provincial
fiscal

City fiscal
Municipal
treasurer
Memb
er
Provincial
superintende
nt of schools
City
superintendent of
schools
Most senior
district
school
supervisor or
in his
absence a
principal of
the school
district or the
elementary
school


39
PRINCIPLES GOVERNING CANVASS PROCEEDINGS

There must be a strong prima facie case backed up by
a specific offer of evidence, and an indication of its
nature and importance has to be made out to warrant
the reception of evidence aliunde, for the
presentation of witnesses and the delays necessarily
entailed thereby.

When COMELEC has determined after investigation
and examination of the voting and registration
records that ACTUAL VOTING and ELECTION took
place in the questioned precincts, election returns
cannot be disregarded but are accorded prima facie
status as bona fide reports of the result of voting for
canvassing and proclamation purposes.

COMELEC should guard against PROCLAMATION
GRABBING and against attempts to paralyze the
canvassing and proclamation.

To allow a respondent to raise belated questions
before the COMELEC as to the returns during the
review of a case before the COMELEC, which
question has not been raised before the board of
canvassers, would mean undue delays in the pre-
proclamation proceedings.

The Supreme Court can review the decisions of
COMELEC ONLY in cases of grave abuse of
discretion in the discharge of QUASI-JUDICIAL
POWERS and not in the exercise of its administrative
duties.

Conclusiveness of findings

e The findings of the board of canvassers and the
certificate of election issued by them are not conclusive
but are merely PRIMA FACIE evidence of the result and
title to the office of those declared elected.

e As to all other collateral matters, the findings of the
board are conclusive. However, such findings are not
conclusive in a direct proceeding to try title to the office.

e The fact of having a plurality of votes lawfully cast is
what confers title to the office UNLESS one is allowed
to go behind the certificate or returns to establish title
to the office before the appropriate tribunal.

PREPARATION OF THE CERTIFICATE OF CANVASS
AND STATEMENT OF VOTES

Certificate of canvass

The respective board of canvassers shall prepare a
certificate of canvass duly signed and affixed with the
imprint of the thumb of the right hand of each
member, supported by a statement of the votes
received by each candidate in each polling place and,
on the basis thereof, shall proclaim as elected the
candidates who obtained the highest number of votes
cast in the province, city, municipality or barangay.
(Sec. 231, B.P. 881)
Failure to comply with this requirement shall
constitute an election offense.

Statement of votes

+ The STATEMENT OF VOTES is a tabulation per
precinct of votes garnered by candidates as reflected
in the election returns; its preparation is an
administrative function of the board, purely a
mechanical act over which COMELEC has direct
control and supervision.
The Statement of Votes supports the
certificate of canvass and is the basis of
proclamation. Consequently, any error in the
Statement of Votes would affect the proclamation
made on the basis thereof.
Failure to object to the Statement of Votes before the
Board of Canvassers does not constitute a bar to
raising the issue for the first time before the
COMELEC, as the law is silent as to when such
objection may be raised.

Number of Copies of the Certificates of Canvass and
Their Distribution (Sec. 29, R.A. 7166)

City or Municipal Board of Canvassers:

The City or Municipal Board of Canvassers shall prepare the
certificates of canvass for President, Vice-President, Senators,
Members of the House of Representatives, and Elective Provincial
Officials in 7 copies to be distributed as follows:

1. 1
st
copy: Provincial board of canvassers for
canvassing of election results for President, Vice-
President, Senators, Members of the House of
Representatives and Elective Provincial Officials

2. 2
nd
copy: COMELEC

3. 3
rd
copy: To be kept by the chairman of the board of
canvassers

4. 4
th
copy: Citizens' arm designated by the COMELEC
to conduct media- based unofficial count

5. 5
th
to 7
th
copies: Representatives of any 3 of 6 major
political parties according to the voluntary agreement
of the parties; if there is no agreement, COMELEC
shall decide based on the criteria under sec. 26 of RA
7166

City Boards of Canvassers of cities comprising one or more
legislative districts,Provincial Boards of Canvassers, and
District Boards of Canvassers in the Metro Manila area:

The foregoing Boards of Canvassers shall prepare the certificates of
canvass for President, Vice-President and Senators in 7 copies to be
distributed as follows:

1. 1
st
copy: Congress, directed to the Senate President
for use in the canvass of election results for President
and Vice-President

2. 2
nd
copy: COMELEC, for use in the canvass of the
election results for Senators

3. 3
rd
copy: To be kept by the chairman of the board of
canvassers

4. 4
th
copy: Citizens' arm designated by the COMELEC
to conduct media- based unofficial count

5. 5
th
to 7
th
copies: Representatives of any 3 of 6 major
political parties according to the
6. voluntary agreement of the parties; if there is no
agreement, COMELEC shall decide based on the
criteria under sec. 26 of RA 7166


40

APPRECIATION OF BALLOTS AND DISPOSITION OF
ELECTION RETURNS

+ APPRECIATION OF BALLOTS is an electoral activity
undertaken after close of voting while the ballot is being
read by the BEI during the counting.

Every ballot shall be presumed valid unless there
is a clear and good reason to justify its rejection
for the reason that a ballot is indicative of the will
of the voter.
It is not required that it should be nicely or accurately
written, or that the name of the candidate voted for should
be correctly spelled. The ballot should be read in the
light of the circumstances surrounding the
election and the voter to give effect to, rather than
frustrate the will of the voter.

RULES IN THE APPRECIATION OF BALLOTS:

1) PRINCIPLE OF IDEM SONANS
36
which
literally means the same or similar sound. The rule
states that 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. (Asked in 1994 Bar)

2) BALLOTS WITH PREFIXES BEFORE THE
NAME OF THE CANDIDATE IS VALID.
Example, a candidate for town mayor is an engineer,
if the vote for him is prefixed with the word
engineer, it should not be invalidated as a marked
ballot under Rule 12. (Asked in the 1994 Bar)

3) STRAY VOTE (NOT BALLOT) is one cast 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.

While the vote for said person is considered a
stray vote, it shall not invalidate the whole
ballot. (In the 1994 Bar, the question was
What is a stray ballot? Although the Code
does not provide for stray ballot, it is presumed
that stray ballot refers to stray vote.)

4) MARKED BALLOT refers to a distinguishing
mark, figure or character which shows an
intention on the part of the voter to
distinguish his particular form from others of
its class, and not one that is common and
distinguishable from, the other of a
designated class.

e Not every mark made by a voter on the ballot
which may separate and distinguish it from
other ballots casts at the election will result in a
declaration of invalidity. To constitute a
mark a distinguishing mark, it must be
placed on a ballot with the deliberate
intention that it shall identify the ballot
after the vote has been cast, unless a statute
enumerates certain marks as illegal or
distinguishing regardless of the question of

36
Sec. 211 BP 881
intent. A mark ballot shall not be counted the
whole ballot is invalidated.

Columbres v. COMELEC 340 SCRA 608: There
is no such presumption in law that the marking found
on the ballots have been made by third persons,
absent concrete evidence showing that they were
placed by the voter themselves. Instead, THE
LEGAL PRESUMPTION IS THAT THE
SANCTITY OF THE BALLOT HAS BEEN
PROTECTED AND PRESERVED. Thus, an
examination of the questioned ballot is required in
order to ascertain the real nature of the alleged
markings thereon-whether they were written by
different persons, and whether they were intended to
identify the ballot.

Another issue in the Columbres case is whether the
COMELEC en Banc committed grave abuse of
discretion in declaring that the findings of the
division of the COMELEC on the contested ballots are
findings of facts that may not be the subject of a
motion for reconsideration. The SC stressed
that to determine the winning candidate, the
application of election law and jurisprudence
in appreciating the contested ballots, is
essential. Any question on the appreciation of
ballots would directly affect the sufficiency of the
evidence supporting the declared winner, hence, the
decision, order or ruling of a COMELEC division
pertinent thereto is also a proper subject of a motion
for reconsideration before the COMELEC en banc.

6) Excess Ballots Sec. 207 OEC. Before proceeding to count,
the BEI shall count the ballots in the compartment for valid
ballots and compare the number with the actual number of
voters who voted. If there are excess ballots, the poll clerk shall
draw out as many ballots equal to the excess without looking at
them and the excess ballots shall not be counted. Excess
ballots shall be deposited in the compartment for
invalid ballots.

7) Spoiled Ballots refers to those ballots which were
accidentally defaced or torn and shall be deposited in the
compartment for invalid ballots and shall not be counted. The
voter is entitled to another ballot.

8) Equity of the Incumbent Rule if there are two or more
candidates with the same full name, first name or surname and
one of them is an incumbent and on the ballot is written only
such full name or surname, the vote shall be counted in
favor of the incumbent. Otherwise, the same shall be
considered a stray vote.

9) Neighborhood Rule even if the name of a candidate was
written on the wrong space, it should be counted if the intention
to vote for him can be determined.

CERTIFICATE OF VOTES, STATEMENT OF VOTES,
STATEMENT OF CANVASS

+ Certificate of Votes (CV): - an election document issued
by the BEIs after the counting and announcement of
the results and before leaving the polling place upon
request of the accredited watchers.
It shall contain the number of votes obtain by each candidate
written in words and figures, precinct #, name of the city or
municipality signed and thumb mark by each member of the
Board.

Evidentiary value: The CV shall be admissible in evidence to
prove tampering, alteration, falsification or any anomaly committed
in the preparation of the election returns concerned, when duly
authenticated by at least two members of the BEI who
issued the certificate. Failure to present the CV shall however not
bar the presentation of other evidence to impugn the authenticity of
the ER. It cannot be a valid basis of canvass.

FUNCTION OF THE CERTIFICATE OF VOTES

(1) to prevent or deter the members of the BEI or other official
from altering the statement because they know of the
existence of such certificate;
(2) to advise the candidate definitely of the number of his
votes so that in case the election statement submitted to
the BOC does not tally with the certificate in his hands, he
may ask that the other authentic copy of the be used for the
canvass and

41
(3) to serve as evidence of fraud in election protests
cases and in subsequent prosecution of the election
offenses against those liable therefore.

+ Statement of Votes is a tabulation per precinct
of the votes obtained by the candidates as
reflected in the ER. The Certificate of Canvass is
in turn based on the statement of votes and is the
basis for proclamation.

NUMBER OF COPIES OF ELECTION RETURNS AND
THEIR DISTRIBUTION

RA 8173 which amended Sec. 27 of RA 7166 provides that in the
election for Pres. and VP, Senators and House of
Representatives, the ERS shall be distributed as
follows:

1
st
CBOC or MBOC
2
nd
Congress , directed to the Pres. of the Senate
3
rd
COMELEC
4
th
dominant majority party as may be determined by
the COMELEC in accordance with law.
5
th
dominant minority party as may be determined by
COMELEC in accordance with law.
6
th
Citizens Arms authorized by the COMELEC to
conduct an unofficial count
7
th
to be deposited inside the ballot box

Local Officials (1) CBOC or MBOC (2) COMELEC (3) PBOC
(4) DMP (5) DMP (6) citizens arm for unofficial count (7)
inside ballot box.

PROCLAMATION

Duties of Board of Canvassers

` After the canvass of election returns, in the absence of a
perfected appeal to the COMELEC, the Board of
Canvassers shall proclaim the candidates who obtained
the highest number of votes cast in the province, city,
municipality or barangay, on the basis of the certificates of
canvass. Failure to comply with this duty constitutes an
election offense. (Sec. 231, B.P. 881)

` The Board of Canvassers shall not proclaim any candidate
as winner unless authorized by the COMELEC after the
latter has ruled on any objections brought to it on appeal
by a losing party. Any proclamation made in violation
hereof shall be void ab initio, unless the contested returns
will not adversely affect the results of the election.

` Once the Board of Canvassers has completed its duty, the
board cannot meet again and re-canvass the votes or
reverse their prior decision and announce different
results.

When proclamation void

` A proclamation is void when it is based on incomplete
returns (Castromayor v. COMELEC, 250 SCRA 298) or
when there is yet no complete canvass (Jamil v.
COMELEC, G.R. No. 123648, Dec. 15, 1997).
` A void proclamation is no proclamation at all, and the
proclaimed candidates assumption into office cannot
deprive the COMELEC of its power to annul the
proclamation.

Partial proclamation (Sec. 21, R.A. 7166)

` Notwithstanding the pendency of any pre-proclamation
controversy, the COMELEC may summarily order the
proclamation of other winning candidates whose election
will not be affected by the outcome of the controversy.

Election Resulting in a Tie (Sec. 240, B.P. 881)

A tie occurs when:

(a) 2 or more candidates receive an equal and
highest number of votes; or

(b) 2 or more candidates are to be elected for
the same position and 2 or more candidates
received the same number of votes for the LAST
PLACE in the number to be elected.

` The board of canvassers, by resolution, upon 5 days notice to all
tied candidates, shall hold a special PUBLIC MEETING at
which the board shall proceed to the DRAWING OF LOTS of the
candidates who have tied and shall proclaim as elected the
candidates who may be favored by luck.

` The candidates so proclaimed shall have the right to assume
office in the same manner as if he had been elected by plurality
of vote.

` 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.

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

Proclamation of a Lone Candidate (R.A. 8295)

` Upon the expiration of the deadline for the filing of certificates
of candidacy in a special election called to fill a vacancy in
an elective position other than for President and Vice-President,
when there is only one (1) qualified candidate for such position,
the lone candidate shall be proclaimed elected to the position by
proper proclaiming body of the COMELEC without holding the
special election upon certification by the COMELEC that he is
the only candidate for the office and is therefore deemed
elected. (Sec. 2)

` In the absence of any lawful ground to deny due course or
cancel the certificate of candidacy in order to prevent such
proclamation, as provided for under Sec. 69 and 78 of the
Omnibus Election Code, the lone candidate shall assume office
not earlier than the scheduled election day. (Sec. 3)

` The COMELEC shall decide petitions for disqualification not
later than election day. Otherwise, such petitions shall be
deemed dismissed. (Sec. 3)


42

MODES OF CHALLENGING CANDIDACY
& ELECTION RESULTS

Pre-Proclamation Controversy

+ A pre-proclamation controversy refers to any
question or matter pertaining to or affecting the
proceedings of the board of canvassers, or any
matter raised under Sec. 233-236 of BP 881 in
relation to the preparation, transmission, receipt,
custody and appreciation of the election returns.
(Sec. 241, BP 881)

Jurisdiction: The COMELEC has exclusive jurisdiction over
pre-proclamation cases. It may order, motu proprio or upon
written petition, the partial or total suspension of the
proclamation of any candidate-elect or annul partially or totally
any proclamation, if one has been made. (Sec. 242, BP 881)

Pre-proclamation controversies are not allowed for the
following positions:
President
Vice President
Senator
Member of the House of Representatives
(Sec. 15, R.A. 7166)

Nature of proceedings: SUMMARY by the COMELEC after
due notice and hearing. Questions which require more
deliberate and necessarily longer consideration are left for
examination in the corresponding election protest. (Sison v.
COMELEC, G.R. No. 134096. March 3, 1999)

(1) Illegal composition or proceedings of the board
of election canvassers

(2) Canvassed election returns are either:
incomplete
contain material defects
appear to be tampered with or falsified
contain discrepancies in the same returns or
in other authentic copies

(3) The election returns were:
prepared under duress, threats, coercion,
intimidation or
obviously manufactured or not authentic

(4) Substituted or fraudulent returns in controverted
polling places were canvassed, the results of which
materially affected the standing of the aggrieved
candidate(s).
(5) Manifest errors in the Certificates of Canvass or
Election Returns (Sec. 15, R.A. 7166; Chavez v.
COMELEC, 211 SCRA 315)

This enumeration is restrictive and exclusive. The complete
election returns whose authenticity is not questioned must be
prima facie considered valid for purposes of canvass and
proclamation. To allow a re-count or a re-appreciation of the
votes in every instance would paralyze canvass and proclamation.

Jurisprudence has held that the following issues are not proper in a
pre-proclamation controversy:
Appreciation of ballots, as this is performed by the
Board of Election Inspectors at the precinct level and
is not part of the proceedings of the Board of
Canvassers (Sanchez v. COMELEC, 153 SCRA 67,
reiterated in Chavez v. COMELEC, 211 SCRA 315);
Technical examination of the signatures and thumb
marks of voters (Balindong v. COMELEC, 260 SCRA
494; Matalam v. COMELEC, 271 SCRA 733);
Prayer for re-opening of ballot boxes (Alfonso v.
COMELEC, G.R. No. 107847, June 2, 1994);
Padding of the Registry List of Voters of a
municipality, massive fraud and terrorism (Ututalum
v. COMELEC, 181 SCRA 335);
Challenges directed against the Board of Election
Inspectors (Ututalum v. COMELEC, supra)
Fraud, terrorism and other illegal electoral practices.
These are properly within the office of election
contests over which electoral tribunals have sole,
exclusive jurisdiction. (Loong v. COMELEC)

The procedure for filing a pre-proclamation controversy depends on
the issue being raised:

(a) Questions involving the composition or proceedings of
the board of canvassers, or correction of manifest
errors

WHERE: The controversy may be initiated either in the Board of
Canvassers or directly with the COMELEC. (Sec. 17, R.A. 7166)

WHEN:

It depends:

(a) If petition involves the illegal composition or
proceedings of the board, it must be filed immediately
when the board begins to act as such (Laodeno v.
COMELEC, 276 SCRA 705), or at the time of the
appointment of the member whose capacity to sit as such
is objected to if it comes after the canvassing of the board,
or immediately at the point where the proceedings are or
begin to be illegal. Otherwise, by participating in the
proceedings, the petitioner is deemed to have acquiesced
in the composition of the Board of Canvassers.

(b) If the petition is for correction, it must be filed not later
than 5 days following the date of proclamation, and must
implead all candidates who may be adversely affected
thereby. (Sec. 5(b), Rule 27, COMELEC Rules of
Procedure)

PROCEDURE:

If filed with the Board first:

(1) Petitioner submits his / her objection to the
chairman of the board of canvassers.

(2) The Board makes its ruling.

(3) Within 3 days from the ruling, the parties
adversely affected may appeal the matter to the
COMELEC.

(4) Upon appeal, the COMELEC shall summarily
decide the case within 5 days from the filing
thereof. (Sec. 19, R.A. 7166)

If initiated directly with the COMELEC:

(1) Petitioner files petition with the
COMELEC.

(2) Upon the docketing of such petition, the
Clerk of Court concerned shall issue
summons with a copy of the petition to
respondents.

(3) The Clerk of Court concerned shall
immediately set the petition for hearing.
When not allowed
Issues that may be Raised
Issues that cannot be raised
Procedure

43
The COMELEC shall hear and decide
the petition en banc.

The Board of Canvassers shall not commence, proceed or
resume canvass unless otherwise ordered by the COMELEC.
(Sec. 5, Rule 27, COMELEC Rules of Procedure)

(b) Matters relating to the preparation, transmission,
receipt, custody and appreciation of the election
returns and certificates of canvass

WHERE: Only with the Board of Canvassers

WHEN: At the time the questioned return is
presented for inclusion in the canvass.

WHO: Any candidate, political party or coalition
of political parties

PROCEDURE:

(1) The contesting party makes an oral objection to the
chairman of the Board of Canvassers at the time the
questioned return is presented for inclusion in the
canvass. Such objection is recorded in the minutes of
canvass. Simultaneous with the oral objection, the
objecting party enters his objection in the form for
written objections prescribed by the COMELEC.

(2) Upon receipt of such objection, the Board
automatically defers the canvass of the contested
returns and proceeds to canvass the returns which
are not contested by any party.

(3) Within 24 hours from and after the presentation of
such objection, the objecting party submits the
evidence in support of the objection, which shall be
attached to the form for written objections.

Within the same 24-hour period, any party may file a
written and verified opposition to the objection in the
prescribed COMELEC form, attaching supporting
evidence, if any. The Board shall not entertain any
objection or opposition unless reduced to writing in
the prescribed forms.

(4) The Board chairman immediately and formally
admits the evidence attached to the objection or
opposition by affixing his signature at the back of
each and every page thereof.

(5) Upon receipt of the evidence, the Board considers the
objection and the opposition, and summarily rules on
the objection. The Board then enters its ruling on the
prescribed form and authenticates the same by
entering the signatures of all its members.

(6) The parties adversely affected by the ruling
immediately inform the Board if they intend to
appeal the ruling. Such information is then entered
in the minutes of canvass.

(7) The Board then sets aside the returns and proceeds
to consider the other returns. The Board then
suspends the canvass after all the uncontested
returns have been canvassed and the contested
return ruled upon by it.

(8) Within 48 hours from the ruling, the party adversely
affected files a written and verified notice of appeal
with the Board. The party then files an appeal with
the COMELEC within a non-extendible period of 5
days thereafter.

(9) Immediately upon receipt of the notice of appeal, the
Board makes an appropriate report to the
COMELEC, elevating therewith the complete records
and evidence submitted in the canvass, and
furnishing the parties with copies of the report.

(10) The COMELEC summarily decides the appeal within
7 days from receipt of the record and evidence
elevated to it by the Board.

(11) The COMELEC's decision becomes executory after
the lapse of 7 days from receipt thereof by the losing
party.

(12) The COMELEC then authorizes the Board of
Canvassers to proceed with the proclamation of the
winner. Any proclamation made without COMELEC
authorization is void ab initio, unless the contested returns
do not adversely affect the results of the election. (Sec. 20,
R.A. 7166)

This procedure is mandatory. Non-compliance with any of the steps
above is fatal to the pre-proclamation petition.

EFFECT OF FILING OF PRE-PROCLAMATION
CONTROVERSY

The period to file an election contest shall be SUSPENDED during
the pendency of the pre-proclamation contest in the COMELEC or
the Supreme Court. (Alangdeo v. COMELEC, June 1989)

The right of the prevailing party in the pre-proclamation contest to
the execution of COMELECs decision does not bar the losing party
from filing an election contest.

Despite the pendency of a pre-proclamation contest, the COMELEC
may order the proclamation of other winning candidates whose
election will not be affected by the outcome of the controversy.

EFFECT OF PROCLAMATION OF WINNING CANDIDATE

A pre-proclamation controversy shall no longer be viable after the
proclamation and assumption into office by the candidate whose
election is contested. The remedy is an election protest before the
proper forum. (Mayor v. COMELEC, January 1989)

The prevailing candidate may still be unseated even though he has
been proclaimed and installed in office if:

1. The opponent is adjudged the true winner of the
election by final judgment of court in an election
contest;

2. The prevailing party is declared ineligible or
disqualified by final judgment of a court in a QUO
WARRANTO case; or

3. The incumbent is removed from office for cause.

Matalam v. COMELEC 271 SCRA 733

+ A PRE-PROCLAMATION CONTROVERSY was defined,
as a general rule, as any question pertaining to or
affecting the proceedings of the BOC which may be
raised by any candidate or by any registered political
party or coalition of political parties before the
Board or directly with the COMELEC, on any matter
raised under Secs. 233, 234, 235 and 236 of the OEC
in relation to the preparation, transmission receipt
custody and appreciation of the ER and Certificate of
canvass. (Sec. 243 OEC)

Under Sec. 17 of RA 7166, questions affecting the
composition or proceedings of the BOC may be initiated
WITH THE BOARD OR DIRECTLY WITH THE COMELEC.
However, matters raised under Sec. 233 to 236, shall be
brought in the first instance before the BOC only.

Exception: in Sec. 15 of RA 7166 which prohibits candidates
for Pres. and VP, Senators and members of the HR from
filing PPC.

The Commission exercises authority to decide PPC in two
instances, to wit:
(1) in appeals from ruling of the BOC; and
(2) in petitions directly filed with it.

In appeals from the rulings of the board, TWO TYPES ARE
GENERALLY INVOLVED.

1. The FIRST refers to RULINGS ON QUESTIONS
CONTESTING ITS COMPOSITION OR
PROCEEDINGS, AND APPEAL THEREFROM
must be taken by the contestant adversely
affected within 3 days from such ruling.

2. The second type refers to RULINGS ON
QUESTIONS CONTESTING ELECTION
RETURNS.

The party adversely affected must immediately
inform the board that he intends to appeal
from the ruling and the board shall enter said
information in the minutes of the canvass; and
Within 48 hours from the ruling, the adverse
party must file with the board a written and
verified notice of appeal,


44
And within an unextendible period of 5
days thereafter, he has to take the appeal to the
COMELEC.

Matalam v. Comlec 271 SCRA 733 - The enumeration of
the issues in a PPC is restrictive and exclusive
37
and the
COMELEC is limited and restricted only to an
examination of the ER and is without jurisdiction to go
beyond or behind the ER.

Section 243. Issues that may be raised in pre-
proclamation controversy. - The following shall be
proper issues that may be raised in a pre-proclamation
controversy:

(a) Illegal composition or proceedings of the board of
canvassers;
(b) 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 233, 234, 235 and 236 of
this Code;
(c) The election returns were prepared under duress,
threats, coercion, or intimidation, or they are
obviously manufactured or not authentic; and
(d) When substitute or fraudulent returns in
controverted polling places were canvassed, the
results of which materially affected the standing
of the aggrieved candidate or candidates.

Sandoval v. COMELEC 323 SCRA 407, COMELEC
exercise exclusive jurisdiction and may motu propio or
upon written petition, and after due notice and hearing,
order the partial or total suspension of the proclamation of
the candidate-elect or annul partially or totally any
proclamation, if one has been made, as the evidence shall
warrant in accordance with sec. 242 of the OEC.

Velayo v. COMELEC 327 SCRA 713 - A PPC is
summary in nature, administrative in character
and which is filed before the BOC. While it is true
that RA 7166 provides for summary proceedings in PP
cases and does not require a trial type hearing,
nevertheless, summary proceedings cannot be stretched to
mean ex parte proceedings. Summary means with
dispatch with the least possible delay. But although the
proceedings are summary, the adverse party
nevertheless must at the very least be notified so
that he can be apprised of the nature and purpose
of the proceeding. In this case, it was found that all
proceedings were conducted by the respondent COMELEC
without the participation of the petitioner. Worse,
respondent Navidad was allowed to file various motions
without the knowledge of the petitioner. Plainly, these ex
parte proceedings offend fundamental fairness and are
null and void. This ruling was reiterated in the recent case
of Cawasa, et. al. v. COMELEC, et. al. G.R. 150469 July 3,
2002.

SCOPE OF A PRE-PROCLAMATION CONTROVERSY
(SEC. 242)

1) Illegal composition or proceedings of the
BOC;
2) The canvassed ERs are incomplete, contain
material defects, appear to be tampered with,
or falsified or contain discrepancies in the
same returns or in other authentic copies as
mention in Secs. 233 to 236;
3) The ER were prepared under duress, threats,
coercion or intimidation or they are
obviously manufactured or not authentic; or,

Ocampo v. COMELEC 325 SCRA 636, the
SC ruled that this fact must be evident from
the face of the said documents. In the
absence of a strong evidence establishing
spuriousness of the returns, the basic rule
that the ER shall be accorded prima facie
status as bona fide reports of the results
of the count of the votes for canvassing
and proclamation purposes must prevail.

4) When substitute or fraudulent returns in
controverted polling places are canvassed,
the result of which materially affect the

37
Sec. 242
standing of the aggrieved candidate. (Sec. 243
OEC)

Summary Recent Jurisprudence:

1) A proclamation made pending appeal of the ruling of the
board of canvassers is void.
2) A petition to correct entries in the certificates of canvass
on the ground of manifest errors must be predicated on
errors that appear on the fact of the COC sought to be
corrected. A petition for correction of manifest error
may be filed involving the election of members of the HR.
3) It is possible that a candidate receives zero votes in one
or two precincts. This fact alone cannot support the
contention that the ER contains statistically improbable
results. This is also true when only one candidate
obtained all the votes in some precincts.
4) Formal defects, duress, and intimidated are not grounds
for excluding an ER.
An order setting aside a proclamation must be rendered after prior
notice and hearing. Due process requirements must be present
before the Commission Elections rules on the petition.
PETITION TO ANNUL OR SUSPEND PROCLAMATIO N

The filing with the COMELEC of a petition to annul or to suspend
proclamation suspends the running of the period to file an election
protest. (Alangdeo v. COMELEC, June 1989)

No law provides for a reglementary period within which to file a
petition for the annulment of an election if there is as yet no
proclamation. (Loong v. COMELEC, 257 SCRA 1)

There is no fixed time frame within which to file a petition to annul a
proclamation, the same being limited only by the standard of
reasonableness. (Nachura, p. 386)

DECLARATION OF FAILURE OF ELECTION

Nature: A petition to declare a failure of election is neither an
election protest nor a pre-proclamation controversy. (Borja v.
COMELEC, 260 SCRA 604)

Grounds for declaration: See previous discussion.

Jurisdiction of COMELEC:

The COMELEC, sitting en banc, may declare a failure of election by a
majority vote of its members. (Sec. 4, R.A. 71660

The COMELEC, in the case of actions for annulment of election
results or declaration of failure of elections, may conduct technical
examination of election documents and compare and analyze voters'
signatures and fingerprints in order to determine whether or not the
elections had indeed been free, honest and clean. (Loong v.
COMELEC, supra)

Before the COMELEC can act on a verified petition seeking a
declaration of failure of election, the following conditions must
concur:

(1) No voting has taken place in the precincts concerned
on the date fixed by law, or even if there was voting,
the election nonetheless resulted in a failure to elect;
and

(2) The votes cast would affect the results of the election.
(Mitmug v. COMELEC, 230 SCRA 54; Loong v.
COMELEC, supra; Hassan v. COMELEC, 264 SCRA
125)

The election is only to be set aside when it is impossible from any
evidence within reach to ascertain the true result when neither
from the returns nor from other proof can the truth be determined
(i.e. where the illegality affects more than 50% of the total number of
votes cast and the remainder does not constitute a valid
constituency).

(1) Petitioner files verified petition with the Law
Department of the COMELEC.

(2) Unless a shorter period is deemed necessary by
circumstances, within 24 hours, the Clerk of Court
Requisites for the declaration of failure of election
Procedure

45
concerned serves notices to all interested
parties, indicating therein the date of hearing,
through the fastest means available.

(3) Unless a shorter period is deemed necessary by
the circumstances, within 2 days from receipt
of the notice of hearing, any interested party
may file an opposition with the Law
Department of the COMELEC.

(4) The COMELEC proceeds to hear the petition.
The COMELEC may delegate the hearing of the
case and the reception of evidence to any of its
officials who are members of the Philippine
Bar.

(5) The COMELEC then decides whether to grant
or deny the petition. This lies within the
exclusive prerogative of the COMELEC.

DISQUALIFICATION CASES

See previous discussion.

The COMELEC and the courts shall give priority to cases of
disqualification for violation of the Omnibus Election Code, to
the end that a final decision shall be rendered not later than 7
days before the election in which the disqualification is sought.
(Sec. 72, BP 881)

WHO MAY FILE:
Any citizen of voting age, or
Any duly registered political party, organization or
coalition of political parties

WHERE: Law Department of the COMELEC

WHEN:Any day after the last day for filing of certificates of
candidacy, but not later than the date of proclamation

Any candidate who has been declared by final judgment 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 disqualified before an
election and he is subsequently voted for and receives the
winning number of votes in such election, the COMELEC or the
courts shall continue with the trial and hearing of the action,
inquiry, or protest and may order the suspension of the
proclamation of such candidate during the pendency of the case
upon motion of the complainant or any intervenor, provided
that evidence of his guilt is strong. (Sec. 6, R.A. 6646)

The fact that the candidate who obtained the highest number of
votes is later declared to be disqualified or not eligible for the
office to which he was elected, does not necessarily entitle the
candidate who obtained the second highest number of votes to
be declared the winner of the elective office.

Grounds for disqualification
Priority of disqualification cases
Procedure
Effect of disqualification case

46

ELECTION CONTESTS

These are adversarial proceedings by which matters involving
the title or claim to an elective office, made before or after
proclamation of the winner, is settled whether or not the
contestant is claiming the office in dispute. The purpose of an
election contest is to ascertain the candidate lawfully elected to
office.

An election contest is imbued with public interest.

The election contest must be liberally construed to favor the
will of the people. An election contest may not be defeated by
mere technical objections.

Until and unless the election protest is decided against him, a
person who has been proclaimed as duly elected has the lawful
right to assume and perform the duties and functions of the
office.

Supreme Court

The Supreme Court, sitting en banc, shall be the sole
judge of all contests relating to the election, returns, and
disqualifications of the President, Vice-President, and may
promulgate its rules for such purpose. (Art. VII, Sec. 4, 1987
Constitution)

Electoral Tribunals of the Senate and House of
Representatives

The Senate and the House of Representatives have
their own electoral tribunals. Each electoral tribunal has 9
members: 3 Supreme Court Justices, 6 members of the Senate
or House of Representatives, as the case may be, who shall be
chosen on the basis of proportional
representation from the political parties and the parties or
organizations registered under the party-list system
represented therein. (Art. VI, Sec. 17, 1987 Constitution)

For purposes of election contests cognizable by the
Electoral Tribunals, the rules of procedure of such tribunals
shall prevail over the provisions of the Omnibus Election Code.
(Lazatin v. HRET, 168 SCRA 39)

COMELEC

The COMELEC has exclusive original jurisdiction over all
election contests relating to the elections, returns, and
qualifications of all elective:

(1) Regional Officials;
(2) Provincial Officials; and
(3) City Officials

Decisions in these cases may be appealed to the Supreme
Court.

The COMELEC has appellate jurisdiction over all contests
involving elective municipal officials decided by trial courts of
general jurisdiction (i.e., Regional Trial Courts) or involving
elective barangay officials decided by trial courts of limited
jurisdiction (i.e., the Municipal Trial Courts).

Decisions, final orders, or rulings of the COMELEC on election
contests involving elective municipal and barangay offices shall be
final, executory and not appealable. (Sec. 2, Art. IX-C, 1987
Constitution) Note, however, that this does not preclude a recourse
to the Supreme Court by way of a special civil action for certiorari.
(Galido v. COMELEC, 193 SCFA 78)

Regional and Municipal Trial Courts

The Regional Trial Courts and Municipal Trial Courts have exclusive
original jurisdiction over municipal and barangay officals,
respectively.

It must be noted that cases involving qualifications of candidates for
the Sangguniang Kabataan filed before the election are decided by
the Election Officer, while those filed after the election are decided by
the MTCs. (Nachura, p. 389)

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

The COMELEC has the power to issue writs of certiorari, prohibition,
and mandamus. However, this power can only be exercised in aid of
its appellate jurisdiction. (Relampagos v. Cumba, 243 SCRA 690)

There are 2 kinds of election contests that may be filed: an election
protest, and a quo warranto case.

Election Protest

WHO MAY FILE: Any candidate who has filed a certificate of
candidacy and has been voted upon for the same office, and
who has not himself caused or contributed to the
irregularities or frauds of which he complains

GROUNDS: Fraud, terrorism, irregularities or illegal acts
committed before, during or after the casting and counting of votes

PERIOD FOR FILING: Within 10 days from proclamation of the
results of the election

Where, after 5 days from the proclamation of the winning candidate,
the loser files a motion for reconsideration in the pre-proclamation
controversy, there are only 5 days which remain of the period within
which to file an election protest. (Roquero v. COMELEC, 289 SCRA
150)

PROCEDURE:

A. For protests filed with the COMELEC (Rule 20 vis--vis
Rules 10-19, COMELEC Rules of Procedure)

(1) Protestant files a verified petition with the COMELEC
within 10 days from proclamation and pays the required
docket fees. Failure to pay the basic docket fee will result
in the dismissal of the protest. (Gatchalian v. COMELEC,
245 SCRA 208)

(2) The Clerk of Court of the COMELEC or the division
concerned issues the corresponding summons to the
protestee within 3 days from the filing of the petition.

(3) Protestee must file an answer within 5 days from service of
summons and a copy of the petition. The protestee may
incorporate in his answer a counter-protest or
counterclaim.

The COMELEC may not entertain a counter-protest filed
beyond the reglementary period to file the same. (Kho v.
COMELEC, G.R. No. 124033, Sept. 25, 1997)

(4) Protestant has 5 days from receipt of the answer or answer
with counterclaim or counter-protest to file his reply or
answer to counter-protest or counterclaim, respectively.

If no answer is filed to the protest or counter-protest, a
general denial is deemed to have been entered.

(5) After the issues have been joined, the case shall be set for
hearing and presentation and reception of evidence.
Election contests, defined
Nature
Jurisdiction over election contests
Powers of the COMELEC in relation to election contests
Kinds of election contests

47

(6) After the case has been submitted for decision, the
COMELEC shall render its decision. If the case is
being heard by a Division, the case shall be decided
within 10 days. If it is being heard by the COMELEC
en banc, it shall be decided within 30 days.

(7) The decision of a division becomes final and
executory after the lapse of 15 days following its
promulgation. The aggrieved party may file a timely
motion for reconsideration within 5 days from
promulgation of the decision on the grounds that the
evidence is insufficient to justify the decision; or that
the said decision is contrary to law.

For the COMELEC en banc, the decision becomes
final and executory 30 days from its promulgation.

B. For protests filed with the Regional Trial Courts
(Rule 35, COMELEC Rules of Procedure)

(1) Protestant files a verified petition with the RTC
within 10 days from proclamation.

(2) Protestee must file an answer within 5 days after
receipt of notice of the filing of the petition and a
copy of the petition.

Should the protestee desire to impugn the votes
received by the protestant in other precincts, he
may file a verified counter-protest within the same
period fixed for the filing of the answer.

(3) Protestant has 5 days from receipt of the counter-
protest to file his answer to such counter-protest.

(4) Any other candidate for the same office may
intervene in the case within 5 days from filing of
the protest by filing a verified petition-in-
intervention. The protestant or protestee shall
answer the protest-in-intervention within 5 days
after notice.

(5) If no answer is filed to the protest, counter-protest
or protest-in-intervention within the specified
time limits, a general denial is deemed to have
been entered.

(6) After the issues have been joined, the case shall be
set for hearing. Presentation and reception of
evidence shall be completed within 30 days from
the date of the commencement thereof.

(7) The Court shall decide the election contest within
30 days from the date it is submitted for decision,
but in every case within 6 months after its filing.
Such decision shall declare who among the parties
has been elected, or in a proper case, that none of
them has been legally elected.

(8) The decision becomes final 5 days after its
promulgation. No motion for reconsideration
shall be entertained.

Should an aggrieved party wish to appeal the
decision to the COMELEC, he may do so by filing a
notice of appeal within 5 days from promulgation
of the decision.

EFFECT OF DEATH OF PROTESTANT

The death of the protestant does not extinguish an election
protest. An election protest is imbued with public interest
which raises it onto a plane over and above ordinary civil
actions, because it involves not only the adjudication 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. (De
Castro v. COMELEC, 267 SCRA 806, as cited in Nachura, p.
393)

However, it is not the heirs of the deceased who shall be the
successors-in-interest to the suit, but the succeeding candidate-
elect. For example, if the deceased was a candidate for
governor, the real party in interest in the continuation of the
proceedings is the Vice-Governor-elect, as he or she will
succeed in the event that the protestant is declared to be the
person lawfully elected to the office.

Quo Warranto

WHO MAY FILE: Any registered voter in the constituency

GROUNDS: Ineligibility or disloyalty to the Republic of the
Philippines

PERIOD FOR FILING: Within 10 days from proclamation of the
results of the election

Actual or compensatory damages may be granted in all election
contests or in quo warranto proceedings in accordance with law.
(Sec. 259, B.P. 881)

ELECTION PROTEST and QUO WARRANTO

ELECTION PROTEST

+ An EP is a special statutory proceedings designed to
contest the right of a person, declared elected to enter
upon and hold office. It is strictly a contest between the
defeated and winning candidates, based on grounds of
ELECTION FRAUDS OR IRREGULARITIES, as to who actually
obtained the majority of the legal votes and, therefore, is
entitled to hold office. It can only be filed by a candidate
who has duly filed a certificate of candidacy and has
been voted for. It is a formal judicial proceedings that
goes into correctness of the counting and appreciation
of ballots at the precinct level were the parties are
allowed to present and examine evidence in detail. IT
IS FILED TEN (10) DAYS

GROUNDS:
1. Fraud,
2. Vote-buying,
3. Terrorism,
4. Presence of flying voters,
5. Misreading or misappreciation of the ballots,
disenfranchisement of voters,
6. Unqualified members of the BEI and
7. other election irregularities.

QUO WARRANTO

+ A petition for QW on the other hand refers to questions of
disloyalty or ineligibility of the winning candidate. It is a
proceeding to unseat the ineligible person from office, but not to
install the protestant in his place. It can be filed by any voter
within ten (10) days from proclamation except on the ground of
citizenship, which can be filed at any time, considering that
citizenship is a continuing qualification for an elective office.

What distinguished one remedy from the other is not the
label given to it but the allegations therein stated. So a
petition alleging fraud and irregularity which vitiated the conduct of
the election, although entitled QW, is an EP and vice versa. In view
of these fundamental differences, they may not be availed of jointly
and in the same proceeding. They may however be separately filed,
with the second and later case suspended until the earlier is resolved.
An action for QW cannot however be converted into an EP.

Ronald Allan Poe a.k.a FPJ vs. GMA PET Case No. 002
resolved the issue on whether a widow may
substitute/intervene for the protestant who died during the
pendency of the protest case?

Court where faced not only on who between protestant and
protestee was the true winner in the May 10, 2004 presidential
elections but also to decide whether the protestants widow
Jesusa Sonora Poe could intervene and/or substitute for the
deceased party, assuming arguendo that the protest could
survive his death. GMA votes is 12,905,808/FPJ 11,782,232.

Together with the filing of the notice of death the manifestation
to interevene was filed with the contention that:

(1) Urgent need for her to contiue and substitute for her
late husband in the EP to ascertain the true and
genuine will of the electorate;
(2) De Casto v. COMELEC and Lumogdang v.
Javier cases were used stating that the death of the
protestant does not constitute a ground for the
dismissal of the contest or to oust the court of
jurisdiction.
Award of damages

48
(3) cognizant that she cannot succeed or be entitled
to the said office, but her utmost concern is one
that involves the publics interest.
(4) that should it be determined that protestee did
not garner the highest number of votes, be
prevented from exercising the powers, duties
and responsibilities

GMA contends that pursuant to the rules of procedure of
the PET only the registered candidate who garnered the
2
nd
and 3
rd
highest votes for the presidency may contest
the election of president. She cannot use public interest to
justify her request to be substituted.

Court ruled that Mrs. FPJ is not real party in
interest pursuant to Rule 14 of PET rules. Public
office is personal to the public officer and not property
transmissible to the heirs upon death. But in Vda. de
Mesa the Court allowed substitution and intervention but
only by a real party in interest in the person who would be
benefited or injured by the judgment and a party who is
entitled to the avails of the suit. In de mesa and
lumogdang v. Javier cases, the VM was permitted to
substitute for the reason that if the mayor is unseated, the
VM succeeds the office.

Court not unaware that a contest before election tribunals
has two aspects. First, right to hold public office and
second, it is imbued with public interest.
PERSONAL ASPECT IS INEXTRICABLY LINKED
WITH PUBLIC INTEREST. But nobility of intentions
is not the point of reference in determining whether a
person may intervene in an election protest. Rule 19, Sec.
1 of the Rules of Court is applicable.

JURISDICTION OVER EP AND QW

1) Supreme Court sitting en banc as Presidential
Electoral Tribunal, sole judge of all contests
relating to the E, R and Q of the Pres. and VP
protest is filed 30 days after proclamation.
Not subject to judicial review
2) Senate Electoral Tribunal for members of
senate as sole judge of all contest relating to the E, R,
and Q of its own members. Filed within 15 days
from date of proclamation. Not subject to
judicial review except on grave abuse of discretion
amounting to excess or lack of jurisdiction.
3) HRET members of HR to be filed within 10
days each electoral tribunal shall be composed of
nine members, three of whom shall be justices of the
SC to be designated by the CJ and the remaining 6
members of the senate or house of representatives, as
the case may be, who shall be chosen on the basis of
their proportional representation from the political
parties and the parties or organizations registered
under the party list system. Senior justice shall be
chairman (Art. VI, Sec. 17)
4) COMELEC for regional, provincial and city
officials filed in 10 days. Subject to judicial review
within 30 days from date of receipt of decision by
aggrieved party
5) RTC for municipal officials 10 days Subject to
appeal with COMELEC within five (5) days from
receipt of decision. Decisions of the COMELEC on
contest on appeal involving municipal and barangay
officials are final and executory except on grounds of
grave abuse of discretion within 30 days.

In Veloria v. COMELEC 211 SCRA 907, an EP
was filed with the RTC by a condidate for a municipal
office. Instead of appealing within 5 days, they filed a
MR. When the MR was denied, they filed a Notice of
Appeal. HELD: Sec. 256 of the OEC prohibits
the filing of a MR in EC affecting municipal
offices. The MR did not suspend the period to
appeal. Hence, the resolution dismissing the
EP has become final and executory.
Pangilinan v. CA 232 SCRA 32, EP was filed in
the RTC which was dismissed during the pre-trial for
failure of the counsel of respondents to appear.
Respondent filed a MR which the RTC
granted. Petitioner argued that a MR is not
allowed. HELD: In Com. Res. 2493, a pre-trial
conference in EC was abolished. There was no basis
for the dismissal f the EC and since the EC is vested
with public interest, it is imperative that the real
choice of the electorate be determined.
6) MTC for barangay officials 10 days and five (5) days
for appeal with COMELEC.

PRINCIPLES COMMON TO ALL ELECTION CONTESTS:

1) Who may file the person entitled to file an election
protest is a candidate who has duly filed a certificate of
candidacy and has been voted to the same office.
However, precision in the use of terms in an election
protest is not indispensable. Substantial compliance is
sufficient.

2) Jurisdictional allegations the jurisdiction facts
necessary to confer JURISDICTION TO TRY AN
ELECTION PROTEST ARE:
a. That the protestant was a candidate who had
duly filed a certificate of candidacy and
had been voted for the same office;
b. That the protestee has been proclaimed;
c. That the petition was filed within ten (10)
days after the proclamation; and
d. That fraud and election irregularities
vitiated the conduct of elections and
affected the legality thereof.

Certificate of Non-Forum Shopping -

The SC in Loyola v. CA 245 SCRA 477 (1995) and Lomarong
v. Dubguban 269 SCRA 624 (1997) ruled, that the SC Circular
requiring that any complaint, petition or other initiatory
pleading must contain a non-forum certification applies to
election cases. The requirement is mandatory, not jurisdictional,
so that non-compliance therewith may warrant the dismissal of
election cases. A certification filed after the filing of the
election case but within the reglamentary period to file the
same constitutes as substantial compliance with the
circular but not one filed thereafter.

Docket Fees

in Soller v. COMELEC 339 SCRA 684, the SC ruled that a court
acquires jurisdiction over any case only upon the payment of the
prescribed docket fees.

Verification in the same case, the fact that the petitioner failed to
stated in the verification that the contents thereof are true and
correct of his own personal knowledge lack the proper verification
and the pleading must be dismissed.

EXECUTIONS PENDING APPEAL

Malaluan v. COMELEC 254 SCRA 397 where the SC ruled
on the matter relative of an execution of a decision in an
election protest case pending appeal. Since the judge acted
without any precedent in this case, the Court held that Sec. 2,
Rule 39 of the Rules of Court which allows the RTC to
order execution pending appeal upon good reasons
stated in a special order, may be made to apply by analogy
or suppletorily to election contests decided by it.

Gutierrez v. COMELEC 270 SCRA 197, it was settled that
SEC. 2 RULE 39 OF THE RULES OF COURT, can be applied
pursuant to Rule 41 of the COMELEC rules of
Procedure, to election contests decided by courts. The
rationale being that the BOC are composed of persons who are
less technically prepared to make an accurate appreciation of
the ballots, apart from their being more apt to yield to
extraneous considerations, and that the board must have to act
summarily, practically racing against time, while on the other
hand, the judge has the benefit of all the evidence the
parties can offer and of admittedly better technical
preparation and background.

Camlian v. COMELEC 271 SCRA, the Court ruled that
execution pending appeal must be strictly construed against
the movant as it is an exception to the general rule on
execution of judgments.

Ramas v. COMELEC Feb. 10, 1998, the Court enumerated
what may constitute good reasons for execution pending
appeal:
(1) the public interest involved or the will of the
electorate
(2) the shortness of the remaining portion of the term
of the contested office and
(3) the length of time that the election contest has
been pending.

The filing of bond does not constitute. Nevertheless, the
trial court may require the filing of a bond as a
condition for the issuance of the corresponding writ
of execution to answer for the payment of damages

49
which the aggrieved party may suffer by reason
of the execution pending appeal.

DAMAGES In Malaluan, the Court ruled that damages
cannot be granted in an election protest case ratiocinating that
the provision of law allowing for damages under specific
circumstances, more particularly compensatory and actual
damages is provided under Art. 2176 of the civil code which is
appropriate only in breaches of obligations in cases of contracts
and QC and on the occasion of crimes and quasi-delicts where
the defendant may be held liable for damages the proximate
cause of which is the act or omission complained of. Therefore,
the monetary claim of a party in an election case must
necessarily be hinged on either a contract or QC or a tortuous
act or omission or a crime in order to effectively recover actual
or compensatory damages. In the absence of any or all of
these, the claimant must be able to point out a specific
provision of law authorizing a money claim for
election protest expenses against the losing party.

EVIDENCE ON THE ELECTION

The following may be used as evidence in contesting the results
of the election:

Election Returns:

Election returns are properly used as evidence in an election
contest when what is involved is the correctness of the number
of votes of each candidate, and the ballots cannot be produced
or are not available.

Ballots

Ballots are properly used as evidence when the election returns
are not available.

Poll-Books and Tally Sheets

Poll-books and tally sheets may be used as evidence where by
law, poll-books or tally sheets are required to be kept.

Election Officials

Election officials may be called to testify in the absence of
ballots, tally sheets or poll-books.

Voters

Voters may testify where the illegality consists in the casting of
votes by persons unqualified, unless it can be shown for whom
they voted, it cannot be allowed to change the result.

Certificate of Votes

The provisions of Sections 235 and 236 of the Omnibus
Election Code notwithstanding, the certificates of votes shall be
admissible in evidence to prove tampering, alteration,
falsification or any anomaly committed in the election returns
concerned, when duly authenticated by testimonial or
documentary evidence presented to the board of election
inspectors who issued the certificate.

The failure to present any certificate of votes shall be a bar to
the presentation of other evidence to impugn the authenticity
of the election returns.

ELECTION OFFENSES

The Regional Trial Courts have exclusive original
jurisdiction to try and decide any criminal actions or
proceedings for violation of election laws. (Sec. 268, B.P.
881; Juan v. People, G.R. No. 132378, January 18, 2000)

The COMELEC has the exclusive power to investigate and
prosecute cases involving violations of election laws. (Sec.
2 (6), Art. IX-C, 1987 Constitution; Sec. 268, B.P. 881; De
Jesus v. People, 120 SCRA 760) However, it may validly
delegate the power to the Provincial Prosecutor or to the
Ombudsman.

In the event that the COMELEC fails to act on any complaint
within 4 months from its filing, the complainant may file the
complaint with the fiscal or the Department of Justice, if
warranted. (Sec. 265, B.P. 881)

PREFERENTIAL DISPOSITION OF ELECTION OFFENSES
Investigation and prosecution of election offenses shall be
given priority by the COMELEC. The investigating officer
shall resolve the case within 5 days from submission.

The courts shall give preference to election cases over all
other cases except petitions for writ of habeas corpus. Their
trial shall be commenced without delay and shall be
conducted continuously until terminated, and the case shall
be decided within 30 days from its submission for decision.
(Sec. 269, B.P. 881)

The various election offenses are enumerated primarily
under Sec. 261 of B.P. 881. However, other election laws
provide for other election offenses. Some of the more
significant offenses include the following:

Registration

Failure of the Board of Election Inspectors to post the list of
voters in each precinct. (Sec. 9, R.A. 7166);

Change or alteration or transfer of a voter's precinct
assignment in the permanent list of voters without the
express written consent of the voter (Sec. 4, R.A. 8189)

Certificate of Candidacy

Continued misrepresentation or holding out as a candidate of a
disqualified candidate or one declared by final and executory
judgment to be a nuisance candidate (Sec. 27f, R.A. 6646);

Knowingly inducing or abetting such misrepresentation of a
disqualified or nuisance candidate (Sec. 27f, R.A. 6646);

Coercing, bribing, threatening, harassing, intimidating,
terrorizing, or actually causing, inflicting or producing violence,
injury, punishment, torture, damage, loss or disadvantage to
discourage any other person or persons from filing a certificate
of candidacy in order to eliminate all other potential candidates
from running in a special election (Sec. 5, R.A. 8295);

Election Campaign

Appointment or use of special policemen, special agents or the
like during the campaign period (Sec. 261m, B.P. 881)

Use of armored land, water or aircraft during the campaign
period (Sec. 261r, B.P. 881)

Unlawful electioneering (Sec. 261k, B.P. 881)

Acting as bodyguards or security in the case of policemen and
provincial guards during the campaign period (Sec. 261t, B.P.
881)

Removal, destruction, obliteration, or tampering of lawful
election propaganda, or preventing the distribution thereof
(Sec. 83, B.P. 881 vis--vis Sec. 262, B.P. 881)

Voting

1. Vote-buying and vote-selling (Sec. 261a, B.P. 881)
2. Conspiracy to bribe voters (Sec. 261b, B.P. 881): A
disputable presumption of a conspiracy to bribe
voters is created when there is proof that at least 1
voter in different precincts representing at least 20%
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's relatives, leaders and/or sympathizers for
the purpose of promoting the election of such
candidate. (Sec. 28, R.A. 6646)
3. Coercion of subordinates to vote for or against any
candidate (Sec. 261d, B.P. 881)
Jurisdiction over election offenses
Prosecution of election offenses
Election offenses

50
4. Dismissal of employees, laborers, or tenants for
refusing or failing to vote for any candidate (Sec.
261d(2), B.P. 881)
5. Being a flying voter (Sec. 261z (2), B.P. 881)

Counting of Votes

1. Tampering, increasing, decreasing votes, or
refusal to correct tampered votes after proper
verification and hearing by any member of the
board of election inspectors (Sec. 27b, R.A.
6646)
2. Refusal to issue to duly accredited watchers the
certificate of votes cast and the announcement
of the election, by any member of the board of
election inspectors (Sec. 27c, R.A. 6646)

Canvassing

Any chairperson of the board of canvassers who fails to give
notice of meeting to other members of the board, candidate or
political party as required (Sec. 27e, R.A. 6646)

Acts of government or public officers

1. Appointment of new employees, creation of new
positions, promotion, or giving salary increases within
the election period (Sec. 261g, B.P. 881)
2. Transfer of officers and employees in the civil service
within the election period without the prior approval
of the COMELEC (Sec. 261h, B.P. 881)
3. Intervening of public officers and employees in the
civil service in any partisan political activity (Sec. 261i,
B.P. 881)
4. Use of public funds for an election campaign (Sec.
261o, B.P. 881)
5. Illegal release of prisoners before and after election
(Sec. 261n, B.P. 881)
6. Release, disbursement or expenditure of public funds
during the prohibited period (Sec. 261v, B.P. 881)
7. Construction of public works, etc. during the
prohibited period (Sec. 261w, B.P. 881)
8. Suspension of elective local officials during the
election period without prior approval of the
COMELEC (Sec. 261x, B.P. 881)

Coercion, intimidation, violence
1. Coercion of election officials and employees
2. Threats, intimidation, terrorism, use of fraudulent
devices or other forms of coercion (Sec. 261e, B.P.
881)
3. Use of undue influence (Sec. 261j, B.P. 881)
4. Carrying deadly weapons within the prohibited area
(Sec. 261p, B.P. 881)
5. Carrying firearms outside residence or place of
business (Sec. 261q, B.P. 881)
6. Organization or maintenance of reaction forces, strike
forces, or similar forces during the election period
(Sec. 261u, B.P. 881)

Other prohibitions
1. Unauthorized printing of official ballots and
election returns with printing establishments
that are not under contract with the COMELEC
(Sec. 27a, R.A. 6646)
2. Wagering upon the results of elections (Sec.
261c, B.P. 881)
3. Sale, etc. of intoxicating liquor on the day fixed
by law for the registration of voters in the
polling place, or the day before the election or
on election day (Sec. 261dd (1), B.P. 881)
4. Opening booths or stalls within 30 meters of
any polling place (Sec, 261dd (2), B.P. 881)
5. Holding fairs, cockfights, etc. on election day
(Sec. 261dd (3), B.P. 881)
6. Refusal to carry election mail during the
election period (Sec. 261dd (4), B.P. 881). In
addition to the prescribed penalty, such refusal
constitutes a ground for cancellation or
revocation of certificate of public convenience or
franchise.
7. Discrimination in the sale of air time (Sec.
261dd (5), B.P. 881) In addition to the
prescribed penalty, such refusal constitutes a
ground for cancellation or revocation of the
franchise.

Failure to register or vote

Art. V, Sec. 1 of the 1987 Constitution states that suffrage "may"
be exercised by qualified citizens of the Philippines, as
compared to the 1935 and 1973 Constitutions which used the
term "shall." Thus, it can be said that under the current Constitution,
failure to register or to vote is no longer an election offense.

Election offenses are generally mala prohibita. Proof of criminal
intent is not necessary. Good faith, ignorance, or lack of malice is not
a defense; the commission of the prohibited act is sufficient. (People
v. Bayona, 61 Phil. 181; People v. Fuentes, 181 Phil. 186)

For individuals
1. Imprisonment of not less than 1 year but
not more than 6 years, without probation
(Sec. 264, B.P. 881)
2. Disqualification to hold public office;
3. Deprivation of the right of suffrage

For a Foreigner
1. Imprisonment of not less than 1 year but
not more than 6 years (without probation);
2. Deportation after service of sentence

For a Political Party

e Payment of a fine not less than P10,000
after a criminal conviction

Persons Required by Law to Keep Prisoners in their
Custody

e For prisoners illegally released from any penitentiary
or jail during the prohibited period, where such
prisoners commit any act of intimidation, terrorism
or interference in the election, the Director of the
Bureau of Corrections, provincial warden, jail keeper
or persons who are required by law to keep said
prisoners in their custody shall, if convicted, be
sentenced to suffer prison mayor in its maximum
period. (Sec. 264, B.P. 881)

e No person shall be arrested or detained at any time
for any alleged offense committed during and in
connection with any election through any act or
language tending to support or oppose any candidate,
political party or coalition of political parties under or
pursuant to any order of whatever name or nature
and by whomsoever issued except only upon a
warrant of arrest issued by a competent judge after all
the requirements of the Constitution have been
strictly complied with.

Election offenses prescribe 5 years from the date of their
commission.

If the discovery of the offense be made in an election contest
proceeding, the period of prescription shall commence on the
date on which the judgment in such proceedings becomes final
and executory. (Sec. 267, B.P. 881)

Good faith not a defense
Penalties
Arrests in Connection with the Election Campaign
Prescription

Election Laws Updated

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ELECTION LAWS Arranged by Sasha Go | Updated

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