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BATAS PAMBANSA BLG. 881

OMNIBUS ELECTION
PHILIPPINES

ARTICLE
GENERAL PROVISIONS

CODE

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qualified to vote to register and cast his
vote.

OF

THE

Section 1. Title. - This Act shall be known


and cited as the "Omnibus Election Code of
the Philippines."
Section 2. Applicability. - This Code shall
govern all election of public officers and, to
the extent appropriate, all referenda and
plebiscites.
Section 3. Election and campaign periods.
- Unless otherwise fixed in special cases by
the Commission on Elections, which
hereinafter shall be referred to as the
Commission, the election period shall
commence ninety days before the day of
the election and shall end thirty days
thereafter.
The period of campaign shall be as follows:
1.
Presidential
and
VicePresidential Election - 90 days;
2. Election of Members of the
Batasang Pambansa and Local
Election - 45 days; and
3. Barangay Election - 15 days.
The campaign periods shall not include the
day before and the day of the election.
However, in case of special elections under
Article VIII, Section 5, Subsection (2) of the
Constitution, the campaign period shall be
forty-five days.
Section 4 Obligation to register and vote.
- It shall be the obligation of every citizen

Section 5 Postponement of election.


- When for any serious cause such as
violence, terrorism, loss or destruction of
election paraphernalia or records, force
majeure, and other analogous causes of
such a nature that the holding of a free,
orderly and honest election should become
impossible in any political subdivision, the
Commission, 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 therein to a date which should be
reasonably close to the date of the election
not held, suspended or which resulted in a
failure to elect but not later than thirty
days after the cessation of the cause for
such postponement or suspension of the
election or failure to elect.
Section 6 Failure of election. - If, on
account of force majeure, violence,
terrorism, fraud, or other analogous causes
the election in any polling place has not
been held on the date fixed, or had been
suspended before the hour fixed by law for
the closing of the voting, or after the
voting and during the preparation and the
transmission of the election returns or in
the custody or canvass thereof, such
election results in a failure to elect, and in
any of such cases the failure or suspension
of election would affect the result of the
election, the Commission shall, on the
basis of a verified petition by any
interested party and after due notice and
hearing, call for the holding or continuation
of the election not held, suspended or
which resulted in a failure to elect on a
date reasonably close to the date of the
election not held, suspended or which
resulted in a failure to elect but not later
than thirty days after the cessation of the
cause of such postponement or suspension
of the election or failure to elect.

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Section 7 Call of special election. -

(1) In case a vacancy arises in the


Batasang
Pambansa
eighteen
months or more before a regular
election, the Commission shall call a
special election to be held within
sixty days after the vacancy occurs
to elect the Member to serve the
unexpired term.
(2) In case of the dissolution of the
Batasang Pambansa, the President
shall call an election which shall not
be held earlier than forty-five nor
later than sixty days from the date of
such dissolution.
The Commission shall send sufficient
copies of its resolution for the
holding of the election to its
provincial election supervisors and
election registrars for dissemination,
who shall post copies thereof in at
least three conspicuous places
preferably where public meetings are
held in each city or municipality
affected.
Section 8 Election Code to be available in
polling places. - A printed copy of this Code
in English or in the national language shall
be provided and be made available by the
Commission in every polling place, in order
that it may be readily consulted by any
person in need thereof on the registration,
revision and election days.
Section 9 Official mail and telegram
relative to elections. - Papers connected
with the election and required by this Code
to be sent by public officers in the
performance of their election duties shall
be free of postage and sent by registered
special delivery mail. Telegrams of the
same nature shall likewise be transmitted
free
of
charge
by
government
telecommunications and similar facilities.

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It shall be the duty of the Postmaster
General, the Director of the Bureau of
Telecommunications, and the managers of
private telecommunication companies to
transmit immediately and in preference to
all other communications or telegrams
messages reporting election results and
such other messages or communications
which the Commission may require or may
be necessary to ensure free, honest and
orderly elections.

Section 10 Election expenses. - Except in


barangay elections, such expenses as may
be necessary and reasonable in connection
with the elections, referenda, plebiscites
and other similar exercises shall be paid by
the Commission. The Commission may
direct that in the provinces, cities, or
municipalities, the election expenses
chargeable
to
the
Commission
be
advanced by the province, city or
municipality
concerned
subject
to
reimbursement by the Commission upon
presentation of the proper bill.
Funds needed by the Commission to defray
the expenses for the holding of regular and
special elections, referenda and plebiscites
shall
be
provided
in
the
regular
appropriations of the Commission which,
upon request, shall immediately be
released to the Commission. In case of
deficiency, the amount so provided shall
be augmented from the special activities
funds in the general appropriations act and
from those specifically appropriated for the
purpose in special laws.
Section 11 Failure to assume office. - The
office of any official elected who fails or
refuses to take his oath of office within six
months from his proclamation shall be
considered vacant, unless said failure is for
a cause or causes beyond his control.
Section 12 Disqualifications. - Any person
who has been declared by competent
authority insane or incompetent, or has

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been sentenced by final judgment for
subversion, insurrection, rebellion or for
any offense for which he has been
sentenced to a penalty of more than
eighteen months or for a crime involving
moral turpitude, shall be disqualified to be
a candidate and to hold any office, unless
he has been given plenary pardon or
granted amnesty.

This disqualifications to be a candidate


herein provided shall be deemed removed
upon the declaration by competent
authority
that
said
insanity
or
incompetence had been removed or after
the expiration of a period of five years from
his service of sentence, unless within the
same
period
he
again
becomes
disqualified.

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SANCHEZ
VS.
COMMISSION
ELECTIONS(114 SCRA 454)

ON

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These
two
Petitions
were
ordered
consolidated and were heard by the court
en banc on July 28, 1981.

FACTS:
ISSUES:
The Resolution of the Commission on
Elections, dated May 15, 1980, in PreProclamation Case No. 41 entitled Virgilio
Sanchez vs. Mayor Armando P. Biliwang
and the Municipal Board of Canvassers of
San Fernando, Pampanga.
In the local elections held on January 30,
1980, Virgilio Sanchez was the official
candidate of the Nacionalista Party (NP) for
Municipal
Mayor
of
San
Fernando,
Pampanga, while Armando Biliwang was
the Kilusang Bagong Lipunan,s (KBL)
official candidate for the same position.
On February 1, 1980, Sanchez filed with
the Commission on Elections a Petition to
declare null and void the local elections in
San Fernando, Pampanga due to alleged
large scale terrorism. On the same day, the
COMELEC denied the Petition for lack of
merit. Sanchez moved for reconsideration.
On February 8, 1980, the COMELEC
recalled its Resolution and required
Biliwang and the Municipal Board of
Canvassers to answer. Hearings were
conducted thereafter.
On November 19, 1980, Sanchez filed a
petition for Certiorari with this court,
docketed as G.R. No. 55513, wherein he
seeks a modification of the portion of the
COMELEC Resolution of May 15, 1980
refusing to call a special election.
On December 6, 1980, Biliwang instituted,
also with this Court, a Petition for
Certiorari, Prohibition and Mandamus,
docketed as G.R. No. 55642, assailing the
same COMELEC Resolution and alleging
that same body has no power to annul an
entire municipal election.

Does the COMELEC have the power to


annul an entire municipal election on the
ground of post-election terrorism?
Does the COMELEC have the authority to
call for a special election?
HELD:
Biliwang Asserts that COMELEC lacks the
power to annul elections of municipal
officials particularly so because, under
Section 190 of the 1978 Election Code, the
power to try election contests relative to
elective municipal officials is vested in
Courts of First Instance.
Be that as it may, it should be recalled that
what COMELEC actually rejected were the
sham and illegal returns in San Fernando,
and that kind of fraud and terrorism
perpetrated thereat was sufficient cause
for voiding the election as a whole.
Besides, COMELEC is empowered motu
proprio to suspend and annul any
proclamation as, in fact, it did annul
Biliwangs proclamation.
It may be true that there is no specific
provision vesting the COMELEC with
authority to annul an election. However,
there is no doubt either relative to
COMELECs extensive powers. Under the
Constitution, the COMELEC is tasked with
the function to enforce and administer all
laws relative to the conduct of elections.
The 1978 Election Code accords it
exclusive charge of the enforcement and
administration of all laws relative to the
conduct of elections for the purpose of
insuring free, orderly and honest elections.

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In other words, in line with the plenitude of
its powers and its function to protect the
integrity of elections, the COMELEC must
be deemed possessed of authority to annul
elections where the will of the voters has
been defeated and the purity of elections
sullied. It would be unreasonable to state
that the COMELEC has a legal duty to
perform and at the same time deny it the
wherewithal to fulfill that task.

On this issue, the COMELEC opined that it


had no power to order the holding of new
or special election.
Thus, the COMELEC deemed it imperative
to certify to the President/Prime Minister
and the Batasang Pambansa the failure of
election in San Fernando, Pampanga, so
that remedial legislation may be enacted.
Again, the foregoing Opinions were
rendered under the regime of the 1935
Constitution and the former Revised
Election Code, whereby there was no
constitutional nor statutory precept that
empowered the COMELEC to direct a new
election after one had already been held.
Under Section 8 of that former statute,
authority was given to the President to
postpone
the
election
upon
the
recommendation of the COMELEC. And
Section 21 (c) of the same law authorized
the President to issue a proclamation
calling a special election whenever the
election for a local office failed to take
place on the date fixed by law. In other
words, the prerogative to postpone an
election or call a special election, was
formerly lodged with the President.
As the laws now stand, however, COMELEC
has been explicitly vested with the
authority to call for the holding or
continuation of the election.
Clearly, under Section 5 of Batas
Pambansa Blg. 52, when the election

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results in a failure to elect, the COMELEC
may call for the holding or continuation of
the election as soon as practicable. We
construe this to include the calling of a
special election in the event of a failure to
elect in order to make the COMELEC truly
effective in the discharge of its functions.
In fact, Section 8 of the 1978 Election
Code, supra, specifically allows the
COMELEC to call a special election for the
purpose of fillinf the vacancy or a newly
created position, as the case may be.
There should be no reason, therefore, for
not allowing it to call a special election
when there is a failure to elect.

RULING OF COURT:
WHEREFORE. 1) in G.R. No. 55513, the
challenged Resolution of May 15, 1980 is
hereby modified, and the Commission on
Elections hereby held empowered to call a
special election where there has been a
failure to elect. That portion which certifies
the failure of election in San Fernando,
Pampanga, to the President and the
Batasang Pambansa for the enactment of
remedial measures, is hereby set aside.
2) In G.R. No. 55642, the Petition is hereby
denied for lack of merit, and the authority
of the Commission on Elections to annul an
election hereby upheld.
Hassan vs. COMELEC
Facts:
Petitioner,
Hadji
Nor
Basher
L. Hassan,
and
private
respondent,
Mangondaya
P.Hassan
Buatan
were
candidates for the Office of the Vice-Mayor
while the other private respondents were
candidates for councilors in Madalum,
Lanao del Sur in the last regular local
elections of May 8, 1995. However, due to
threats of violence and terrorism in the
area there was failure of elections in six
out of twenty four precincts in Madalum.
The ballot boxes were burned and there

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were threats by unidentified persons in
Precinct No. 7-A. In Precinct Nos. 9, 9-A, 10,
13, and 14, elections did not take place
because the members of the Board of
Election Inspectors (BEI) failed to report to
their respective polling places. Thus,
the Monitoring Supervising Team(COMELEC
Team) headed by Regional Election
Director
Virgilio
O.
Garcillano
recommended to the COMELEC the holding
of special elections in said precincts. The
special elections were thereby set on
May 27, 1995. On said date, however, the
members of the BEI again failed to report
for duty in their respective polling places.
In an Order dated May 28, 1995, the
COMELEC Team rescheduled the elections
in these precincts for May 29, 1995
at Liangan Elementary (Arabic) School,
which is 15kilometers away from the
designated polling places, On May
29, 1995, the members of the Board did
not again
report
for
duty.
Hence,
the COMELEC Team was constrained to
appoint police/military personnel to act as
substitute members so as to push through
with the elections. The herein private
respondent filed a petition for her
immediate proclamation, on the other
hand the petitioner filed the present case
due to the same ground of terrorism.

Issue: Whether or not failure of election


shall be declared
Ruling: The court held that there was
actually
failure of
election. The
rescheduling of the special elections from
May 27 to May 29, was done in uncommon
haste and unreasonably too close for all
voters to be notified of the changes, not
only as to the date but as to the
designated polling place. We must agree
with the dissenting opinion that even in
highly urbanized areas, the dissemination
of notices poses to be a problem. In the
absence of proof that actual notice of the
special elections has reached a great
number of voters, we are constrained to

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consider the May 29elections as invalid. If
only to ascertain the will of the people and
to prevent that will from being muted, it is
necessary that a special election be held in
view of the failure of elections in Madalum,
Lanao del Sur. the Court has ruled that
the preconditions for declaring a failure of
election are: (1) that no voting has been
held in any precinct or precincts because
of force majeure, violence or terrorism, and
(2) that the votes not cast therein suffice
to affect the results of the elections. The
concurrence of these two(2) circumstances
are required to justify the calling of a
special election. However, due to the
insufficiency of the information the court
was constrained to ascertain the votes to
be counted thereof.

CANICOSA V. COMELEC
GR No. 120318
5 December 1997

FACTS:
Ricardo Boy Canicosa and Severino
Lajara were candidates for Mayor in
Calamba, Laguna during the 8 May 1995
elections. Lajara was proclaimed winner
by the Municipal Board of Canvassers.

On 15 May Canicosa filed with the


COMELEC a Petition to Declare Failure of
Election and to Declare Null and Void the
Canvass and Proclamation because of
alleged
widespread
frauds
and
anomalies. However, the COMELEC en
bancdismissed the petition on the ground
that the allegations therein did not justify
a declaration of failure of election.

ISSUE:

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W/N a COMELEC division should have


first heard the petition before deciding on
it en
banc on
a
motion
for
reconsideration.

HELD:
NO. Section 3, Article IX-C applies only
when the COMELEC acts in the exercise
of its adjudicatory or quasi-judicial
functions and not when it merely
exercises purely administrative functions.
Moreover, it is expressly provided in Rule
27, Section 7 of the COMELEC Rules of
Procedure that any party dissatisfied with
the ruling of the board of canvassers
shall have a right to appeal to the
COMELEC en banc. Questions as to
whether elections have been held or
whether certain returns were falsified or
manufactured and therefore should be
excluded from the canvass do not involve
the right to vote. Such questions are
properly
within
the
administrative
jurisdiction of COMELEC, hence, may be
acted upon directly by the COMELEC en
banc without having to pass through any
of its divisions.

DOCTRINE:
There are only three instances where a
failure of election may be declared:
namely:
(a)
The election in any polling place
has not been held on the date fixed on
account of force majeure, violence,
terrorism, fraud, or other analogous
causes;
(b)
The election in any polling place
has been suspended before the hour
fixed by law for the closing of the voting
on account of force majeure, violence,

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terrorism, fraud,
causes; or

or

other

analogous

(c)
After the voting and during the
preparation and transmission of the
election returns or in the custody or
canvass thereof, such election results in
a failure to elect on account of force
majeure, violence, terrorism, fraud, or
other analogous causes.

The question of inclusion or exclusion


from the list of voters involves the right
to vote which is not within the power and
authority of COMELEC to rule upon. The
determination of whether one has the
right to vote is a justiciable issue
properly cognizable by our regular
courts.

It is only in the exercise of its


adjudicatory or quasi-judicial powers that
the COMELEC is mandated to hear and
decide cases first by Division and then,
upon motion for reconsideration, by the
COMELEC en banc. This is when it is
jurisdictional.

The COMELEC exercises direct and


immediate supervision and control over
national and local officials or employees,
including members of any national or
local law enforcement agency and
instrumentality
of
the
government
required by law to perform duties relative
to the conduct of elections. Its power to
direct supervision and control includes
the power to review, modify, or set aside
any act of such national and local
officials.
It
exercises
immediate
supervision over the members of the
boards of election inspectors and
canvassers. Its statutory power of

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supervision and control includes the


power to revise, reverse, or set aside the
action of the boards, as well as to do
what the boards should have done, even
if questions relative thereto have not
been elevated to it by an aggrieved
party, for such power includes the
authority to initiate motu proprio or by
itself such steps or actions as may be
required pursuant to law.

BORJA VS COMELEC

Benito v. COMELEC
G.R. No. 134913 (Jan 19, 2001)

FACTS:
Benito and private respondent
Pagayawan were 2 of 8 candidates vying
for the position of municipal mayor in
Calanogas, Lanao del Sur during the May
11, 1998 elections. 5 precincts clustered
in the Sultan Disimban Elementary
School were met with violence when
some 30 armed men appeared at the
school premises and fired shots into the
air. This sowed panic among the voters
and elections officials, causing them to
scatter
in
different
directions.
It
happened before noon at the day of
election. A spot report reported the
incident.
Both parties are contending contrary
facts. Petitioner alleged that the voting
never resumed even after the lawless
elements left. On the other hand, private
respondent alleged that voting resumed
when the armed men left around 1 pm in
the afternoon. Petitioner is only asking,
however, a declaration of failure of
elections on the first three precincts, not
with the entire five precincts. During the
counting, the ballots from the three

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precincts were excluded. Nevertheless,


the winner was the private respondent.
And even if the votes from the three
excluded precincts were added, private
respondent still emerged as the winner.
Petitioner then filed a petition to declare
failure of election and to call a special
election. COMELEC however denied the
petition and affirmed the proclamation.

Held: Petition Dismissed.


1. Two preconditions must exist before
a failure of election may be declared: (1)
no voting has been held in any precinct
due to force majeure, violence or
terrorism; and (2) the votes not cast
therein are sufficient to affect the results
of the election. The cause of such failure
may arise before or after the casting of
votes or on the day of the election.

2. Whether there was a resumption of


voting is essentially a question of fact.
Such are not proper subjects of inquiry in
a petition for certiorari under Rule 65.

3. Voting in all five precincts resumed


after peace and order was re-established
in the Disimban Elementary School.
There was no objection raised to the
count of votes in the said two precincts
during the counting of votes at the
counting center. So why a selective
objection to the three precincts herein?

4. Petitioner equates failure of elections


to the low percentage of votes cast vis-vis the number of registered voters in the
subject election precincts. However,
there can be a failure of election in a
political unit only if the will of the

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majority has been defiled and cannot be


ascertained. But if it can be determined,
it must be accorded respect. After all,
there is no provision in our election laws
which requires that a majority of
registered voters must cast their votes.
All the law requires is that a winning
candidate must be elected by a plurality
of valid votes, regardless of the actual
number of ballots cast.

5. The power to throw out or annul an


election should be exercised with the
utmost
care
and
only
under
circumstances
which
demonstrate
beyond doubt either that the disregard of
the law had been so fundamental or so
persistent and continuous that it is
impossible to distinguish what votes are
lawful and what are unlawful, or to arrive
at any certain result whatsoever, or that
the great body of voters have been
prevented by violence, intimidation and
threats from exercising their franchise.
SAMBARANI V COMELEC, 438 SCRA
319
G.R. No.
2004

160427,

September

15,

Carpio, J.:

Facts:
A Synchronized Barangay and
Sangguniang Kabataan Elections were
held on July 15, 2002 in Lanao del Sur.
Sambarani, Miraato, Abubacar, Mascara
and Dayondong ran for re-election as
punong barangay in their respective
barangay, namely: Occidental Linuk,
Pindolonan Moriatao Sarip, Talub, New
Lumbacaingud and Tatayawan South. The
COMELEC subsequently issued Resolution
No. 5479 which sets the date for special
elections on August 13, 2002, due to

failure of elections in eleven barangays


including the five barangays mentioned.
On August 14, 2002, Acting Election
Officer
Esmael
Maulay
issued
a
certification that there were no special
elections held on August 13, 2002. The
petitioners filed a joint petition for
holding of another special election. They
also contend that the failure of election
was due to the failure of Maulay to follow
the directive of Commissioner Sadain to
use the ARMMs 2001 computerized
voters list and voters registration
records. Since Maulay failed to file a
written explanation, the COMELEC moved
for the resolution of the case. It directed
the DILG to appoint Barangay Captains
and Barangay Kagawads in the five
barangays mentioned in pursuance to RA
7160. The petitioners filed an instant
petition to hold another special election
which the COMELEC subsequently denied
on the ground that the 30-day period
already lapsed.

Issue: 1. Whether or not the COMELEC


erred in its decision in denying the
petition to hold another special election.
2. Whether the DILG can appoint
barangay and SK officials as directed by
the COMELEC.

Held: 1. Yes. The COMELECs decision


denying the petition for another special
election is void. Section 6 of the Omnibus
Election Code which is the basis of the
COMELECs denial of the petition is
merely directive and not mandatory.
Section 45 also provides that in case of
postponement or failure of election the
COMELEC shall set the elections within
thirty days from the cessation of the
causes for postponement. The elections

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may be held anytime within the thirty


day period from the time the cause of the
postponement ceased.
2. No. The DILG cannot appoint barangay
and SK officials due to Section 5 of the
RA 9164 which provides for a hold over
period where an incumbent officer may
remain in office until their successors
have already been elected and qualified.
Therefore, the petitioners can assume
office in a hold-over capacity pending the
assumption of a successor into office.
TOLENTINO V COMELEC, 420 SCRA
438
[G.R. No.
2004]

148334.

January 21,

election must be distinguished in the


documentation as well as in the
canvassing of their results. To support
their claim, petitioners cited the special
elections simultaneously held with the
regular elections in 1951 and 1955 to fill
the seats vacated by Senators Fernando
Lopez and Carlos P. Garcia, respectively,
who became Vice-Presidents during their
tenures in the Senate. Petitioners point
out that in those elections, COMELEC
separately canvassed the votes cast for
the senatorial candidates running under
the regular elections from the votes cast
for the candidates running under the
special
elections.
COMELEC
also
separately proclaimed the winners in
each of those elections.

CARPIO, J.:

Facts: Shortly after her succession to the


Presidency in January 2001, President
Gloria Macapagal-Arroyo nominated then
Senator Teofisto T. Guingona, Jr. as VicePresident.
Congress confirmed the
nomination of Senator Guingona who
took his oath as Vice-President on 9
February 2001. Thereafter, a vacancy in
the Senate occurred and a resolution was
passed to fill in such vacancy through a
special
election
to
be
held
simultaneously with the regular elections
to be held on May 14, 2001. The same
resolution further states that the 13th
highest number of votes shall serve only
for the unexpired term of Senator
Guingona which will end on June 30,
2004.

On 20 June 2001, petitioners Arturo


Tolentino and Arturo Mojica, as voters
and taxpayers, filed the instant petition
for prohibition, claiming that if held
simultaneously, a special and a regular

Issues: The following are the issues


presented for resolution:

(1) Whether the petition is in fact a


petition for quo warranto over which the
Senate Electoral Tribunal is the sole
judge;

(2) Whether a special election to fill a


vacant three-year term Senate seat was
validly held on 14 May 2001.

Ruling : The petition has no merit.

(1) A quo warranto proceeding is, among


others, one to determine the right of a
public officer in the exercise of his office
and to oust him from its enjoyment if his
claim is not well-founded. Under Section
17, Article VI of the Constitution, the
Senate Electoral Tribunal is the sole
judge of all contests relating to the

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qualifications of the members of the


Senate. The petition, however, does not
seek to determine Honasans right in the
exercise of his office as Senator.
Petitioners prayer for the annulment of
Honasans proclamation and, ultimately,
election
is
merely
incidental
to
petitioners
cause
of
action.
Consequently, the Court can properly
exercise jurisdiction over the instant
petition.

(2) Senatorial Seat was Validly Held on


14 May 2001. Under Section 9, Article VI
of the Constitution, a special election
may be called to fill any vacancy in the
Senate and the House of Representatives
in the manner prescribed by law. To
implement
this
provision
of
the
Constitution, Congress passed R.A. No.
6645. Section 4 of Republic Act No. 7166
subsequently amended Section 2 of R.A.
No. 6645, as follows:

Postponement, Failure of Election and


Special Elections. x x x In case a
permanent vacancy shall occur in the
Senate or House of Representatives at
least one (1) year before the expiration
of the term, the Commission shall call
and hold a special election to fill the
vacancy not earlier than sixty (60) days
nor longer than ninety (90) days after the
occurrence of the vacancy. However, in
case of such vacancy in the Senate, the
special
election
shall
be
held
simultaneously with the next succeeding
regular election. (Emphasis supplied)

The controversy, however, thus turns on


whether COMELECs failure, assuming it
did fail, to comply with the requirements
in Section 2 of R.A. No. 6645, as

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amended, invalidated the conduct of the


special senatorial election on 14 May
2001
and
accordingly
rendered
Honasans proclamation as the winner in
that special election void. More precisely,
the question is whether the special
election is invalid for lack of a call for
such election and for lack of notice as to
the office to be filled and the manner by
which the winner in the special election is
to be determined. The Court answers in
the negative.

The calling of an election, that is, the


giving notice of the time and place of its
occurrence, whether made by the
legislature directly or by the body with
the duty to give such call, is
indispensable to the elections validity. In
a general election, where the law fixes
the date of the election, the election is
valid without any call by the body
charged to administer the election.

In a special election to fill a vacancy, the


rule is that a statute that expressly
provides that an election to fill a vacancy
shall be held at the next general
elections fixes the date at which the
special election is to be held and
operates as the call for that election.
Consequently, an election held at the
time thus prescribed is not invalidated by
the fact that the body charged by law
with the duty of calling the election failed
to do so. This is because the right and
duty to hold the election emanate from
the statute and not from any call for the
election by some authority and the law
thus charges voters with knowledge of
the time and place of the election.[30]

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ADMIN LAW``

Conversely, where the law does not fix


the time and place for holding a special
election but empowers some authority to
fix the time and place after the
happening of a condition precedent, the
statutory provision on the giving of notice
is considered mandatory, and failure to
do so will render the election a nullity.
[31]

In the instant case, Section 2 of R.A. No.


6645 itself provides that in case of
vacancy in the Senate, the special
election to fill such vacancy shall be held
simultaneously with the next succeeding
regular election. Accordingly, the special
election to fill the vacancy in the Senate
arising
from
Senator
Guingonas
appointment
as
Vice-President
in
February 2001 could not be held at any
other
time
but
must
be
held
simultaneously with the next succeeding
regular elections on 14 May 2001. The
law charges the voters with knowledge of
this statutory notice and COMELECs
failure to give the additional notice did
not negate the calling of such special
election, much less invalidate it.

Moreover, the test in determining the


validity of a special election in relation to
the failure to give notice of the special
election is whether the want of notice
has resulted in misleading a sufficient
number of voters as would change the
result of the special election. If the lack
of official notice misled a substantial
number of voters who wrongly believed
that there was no special election to fill a
vacancy, a choice by a small percentage
of voters would be void.

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The required notice to the voters in the


14 May 2001 special senatorial election
covers two matters. First, that COMELEC
will hold a special election to fill a vacant
single three-year term Senate seat
simultaneously with the regular elections
scheduled on the same date. Second,
that COMELEC will proclaim as winner the
senatorial candidate receiving the 13th
highest number of votes in the special
election.
Petitioners
have
neither
claimed nor proved that COMELECs
failure to give this required notice misled
a sufficient number of voters as would
change the result of the special
senatorial election or led them to believe
that there was no such special election.

Finally, neither is there basis in


petitioners claim that the manner by
which COMELEC conducted the special
senatorial election on 14 May 2001 is a
nullity because COMELEC failed to
document separately the candidates and
to canvass separately the votes cast for
the
special
election.
No
such
requirements exist in our election laws.
What is mandatory under Section 2 of
R.A. No. 6645 is that COMELEC fix the
date of the election, if necessary, and
state, among others, the office or offices
to be voted for. Similarly, petitioners
reliance on Section 73 of B.P. Blg. 881 on
the filing of certificates of candidacy, and
on Section 4(4) of R.A. No. 6646 on the
printing of election returns and tally
sheets, to support their claim is
misplaced. These provisions govern
elections in general and in no way
require
separate documentation
of
candidates or separate canvass of votes
in a regular and special elections jointly
held. Petition DISMISSED for lack of
merit.

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Marquez vs COMELEC GR 112889


(April 18, 1995)
No. 112889
243 SCRA 538
April 18, 1995
FACTS:
Bienvenido
Marquez,
a
defeated
candidate in the Province of Quezon filed
a petition for certiorari praying for the
reversal of the COMELEC Resolution
which dismissed his petition for quo
warranto against Eduardo Rodriguez, for
being allegedly a fugitive from justice.
It is averred that at the time private
respondent filed his certificate of
candidacy, a criminal charge against him
for ten (10) counts of insurance fraud or
grand theft of personal property was still
pending before the Municipal Court of Los
Angeles Judicial District, County of Los
Angeles, State of California, U.S.A. A
warrant issued by said court for his
arrest, it is claimed, has yet to be served
on private respondent on account of his
alleged flight from that country.
Petitioners subsequent recourse (in G.R.
No. 105310) from the COMELECs May 8,
1992 resolution was dismissed without
prejudice, however, to the filing in due
time of a possible post-election quo
warranto proceeding against private
respondent.
Before the 11th May 1992 elections,
petitioner filed a petition with the
COMELEC
for
cancellation
of
respondents CoC on account of the
candidates disqualification under Sec. 40
(e) of the LGC.
Private respondent was proclaimed
Governor-elect of Quezon on 29 May
1992. Forthwith, petitioner instituted quo

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warranto
proceedings
(EPC
92-28)
against private respondent before the
COMELEC.
ISSUE:
Whether private respondent who, at the
time of the filing of his certificate of
candidacy (and to date), is said to be
facing a criminal charge before a foreign
court and evading a warrant for his arrest
comes within the term fugitive from
justice contemplated by Section 40(e) of
the LGC and is, therefore, disqualified
from being a candidate for, and thereby
ineligible from holding on to, an elective
local office.
HELD:
Section 40(e) of the LGC (RA 7160)
provide that a Fugitive from justice in
criminal cases here and abroad are
disqualified from running for any
elective local position.
It has been held that construction placed
upon law by the officials in charge of its
enforcement
deserves
great
and
considerable weight (Atlas Consolidated
Mining and Development Corp. vs. CA,
182 SCRA 166,181). However, when
there clearly is no obscurity and
ambiguity in an enabling law, it must
merely be made to apply as it is so
written. An administrative rule or
regulation can neither expand nor
constrict the law but must remain
congruent to it.
The confinement of the term fugitive
from justice in Article 73 of the Rules
and Regulations Implementing the LGC of
1991 to refer only to a person who has
been convicted by final judgment is an
inordinate and undue circumscription of
the law.
Unfortunately, the COMELEC did not
make any definite finding on whether or

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ADMIN LAW``

not private respondent is in fact a


fugitive from justice as such term must
be interpreted and applied in the light of
the Courts opinion. The omission is
understandable since the COMELEC
outrightly dismissed the petition for quo
warranto on the basis instead of Rule 73
of
the
Rules
and
Regulations
promulgated
by
the
Oversight
Committee. The Court, not being a trier
of facts, is thus constrained to remand
the case to the COMELEC for a
determination of this unresolved factual
matter.

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grand theft and attempted grand theft of


personal property is pending against the
petitioner before the Los Angeles
Municipal Court. Rodriguez is therefore a
fugitive from justice which is a ground
for his disqualification/ ineligibility under
Section 40 (e) of the Local Government
Code according to Marquez.
Rodriguez,
however,
submitted
a
certification from the Commission of
Immigration showing that Rodriguez left
the US on June 25, 1985- roughly five (5)
months prior to the institution of the
criminal complaint filed against him
before the Los Angeles Court.
Issue: Whether or not Rodriguez is a
fugitive from justice.

RODRIGUEZ vs. COMELEC


259 SCRA 296, 1996
Facts: The
petitioner
Eduardo
T.
Rodriguez was a candidate for Governor
in the Province of Quezon in the May 8,
1995 elections. His rival candidate for the
said position was Bienvenido O. Marquez,
Jr., herein private respondent. Private
respondent
filed
a
petition
for
disqualification before the COMELEC
based principally on the allegation that
Rodriguez is a fugitive from justice.
Private respondent revealed that a
charge for fraudulent insurance claims,

Held: No. The Supreme Court reiterated


that a fugitive from justice includes not
only those who flee after conviction to
avoid punishment but likewise who,
being charged, flee to avoid prosecution.
The definition thus indicates that the
intent to evade is the compelling factor
that animates ones flight from a
particular jurisdiction. And obviously,
there can only be an intent to evade
prosecution or punishment when there is
knowledge by the fleeing subject of an
already instituted indictment or of a
promulgated judgment of conviction.