QUESTIONS AND ANSWERS IN ADMINISTRATIVE LAW

Q What is the essence of due process in administrative proceedings? Explain.

ANS: In administrative proceedings, due process simply means an opportunity to seek a
reconsideration of the order complained of; it cannot be fully equated to due process in its strict
jurisprudential sense. A respondent in an administrative case is not entitled to be informed of the
preliminary findings and recommendations; he is entitled only to a reasonable opportunity to be heard,
and to the administrative decision based on substantial evidence. (Vealasquez v. CA, G.R. No. 150732,
August 31, 2004, 437 SCRA 357). Note that it is the administrative order, not the preliminary report,
which is the basis of any further remedies the losing party in an administrative case may pursue. (Viva
Footwear Mfg. Corp. v. SEC, et al., G.R. No. 163235, April 27, 2005).

Exhaustion of administrative remedies.

The general rule is that before a party may seek the intervention of the court, he should first avail of all
the means afforded him by administrative processes. The issues which administrative agencies are
authorized to decide should not be summarily taken from them and submitted to a court without first
giving such administrative agency the opportunity to dispose of the same after due deliberation.

Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of primary jurisdiction;
that is, courts cannot or will not determine a controversy involving a question which is within the
jurisdiction of the administrative tribunal prior to the resolution of that question by the administrative
tribunal, where the question demands the exercise of sound administrative discretion requiring the
special knowledge, experience and services of the administrative tribunal to determine technical and
intricate matters of fact.

Nonetheless, the doctrine of exhaustion of administrative remedies and the corollary doctrine of primary
jurisdiction, which are based on sound public policy and practical considerations, are not inflexible
rules. There are many accepted exceptions, such as: (a) where there is estoppel on the part of the
party invoking the doctrine; (b) where the challenged administrative act is patently illegal, amounting to
lack of jurisdiction; (c) where there is unreasonable delay or official inaction that will irretrievably
prejudice the complainant; (d) where the amount involved is relatively small so as to make the rule
impractical and oppressive; (e) where the question involved is purely legal and will ultimately have to be
decided by the courts of justice; (f) where judicial intervention is urgent; (g) when its application may
cause great and irreparable damage; (h) where the controverted acts violate due process; (i) when the
issue of non-exhaustion of administrative remedies has been rendered moot; (j) when there is no other
plain, speedy and adequate remedy; (k) when strong public interest is involved; and, (l) in quo warranto
proceedings. Exceptions (c) and (e) are applicable to the present case. (Rep., et al. v. Lacap, et al.,
G.R. No. 158253, March 2, 2007).

Exhaustion of administrative remedies.

The underlying principles of the rule on exhaustion of administrative remedies rests on the presumption
that the administrative agency, if afforded a complete chance to pass upon the matter, will decide the
same correctly. There are both legal and practical reasons for the principle. The administrative process
is intended to provide less expensive and speedier solutions to disputes. Where the enabling statute
indicates a procedure for administrative review and provides a system of administrative appeal or
reconsideration, the courts for reasons of law, comity, and convenience will not entertain a case
unless the available administrative remedies have been resorted to and the appropriate authorities
have been given an opportunity to act and correct the errors committed in the administrative forum.
(Berdin, et al. v. Hon. Eufracio Mascarinas, et al., G.R. No. 135928, July 6, 2007, Tinga, J).
ELECTION LAWS QUESTIONS AND ANSWERS

Q Rev. Nardo B. Cayat filed his certificate of candidacy for Mayor of Buguias, Benguet for the May
2004 elections. Thomas Palileng, another candidate for Mayor filed a petition to annul/nullify his
certificate of candidacy and/or to disqualify on the ground that Cayat has been convicted of a crime
involving moral turpitude. Twenty three days before the election, Cayats disqualification became final
and executory. He, however won and was proclaimed and assumed office. Palileng filed an electoral
protest contending that Cayat was ineligible to run for mayor. The Vice-Mayor intervened and
contended that he should succeed Cayat in case he is disqualified because Palileng was only a second
placer, hence, he cannot be declared as the winner. Is the contention of the Vice-Mayor correct? Why?

ANS: No, because there was no second placer, hence, Palileng should be proclaimed as the winner
on the following grounds:

First, the COMELECs Resolution of 12 April 2004 cancelling Cayats certificate of candidacy due to
disqualification became final and executory on 17 April 2004 when Cayat failed to pay the prescribed
filing fee. Thus, Palileng was the only candidate for Mayor of Buguias, Benguet in the 10 May 2004
elections. Twenty-three days before the election day, Cayat was already disqualified by final judgment
to run for Mayor in the 10 May 2004 elections. As the only candidate, Palileng was not a second placer.
On the contrary, Palileng was the sole and only placer, second to none. The doctrine on the rejection of
the second placer, which triggers the rule on succession, does not apply in the present case because
Palileng is not a second-placer but the only placer. Consequently, Palilengs proclamation as Mayor of
Buguias, Benguet is beyond question.

Second, there are specific requirements for the application of the doctrine on the rejection of the
second placer. The doctrine will apply in Bayacsans favor, regardless of his intervention in the present
case, if two conditions concur: (1) the decision on Cayats disqualification remained pending on election
day, 10 May 2004, resulting in the presence of two mayoralty candidates for Buguias, Benguet in the
elections; and (2) the decision on Cayats disqualification became final only after the elections. (Cayat
v. COMELEC, April 27, 2007).

Q It was contended that the doctrine of rejection of the second placer laid down in Labo v.
COMELEC should apply. Is the contention correct? Why?

ANS: No. Labo, Jr. v. COMELEC, which enunciates the doctrine on the rejection of the second placer,
does not apply because in Labo there was no final judgment of disqualification before the elections.
The doctrine on the rejection of the second placer was applied in Labo and a host of other cases
because the judgment declaring the candidates disqualification in Labo and the other cases had not
become final before the elections. Labo and other cases applying the doctrine on the rejection of the
second placer have one common essential condition the disqualification of the candidate had not
become final before the elections. This essential condition does not exist in the present case. (Cayat v.
COMELEC).

Reason in Labo.

In Labo, Labos disqualification became final only on 14 May 1992, three days after the 11 May 1992
elections. On election day itself, Labo was still legally a candidate. In the case of Cayat he was
disqualified by final judgment 23 days before the 10 May 2004 lections. On election day, Cayat was no
longer legally a candidate for mayor. In short, Cayats candidacy for Mayor was legally non-existent in
the 10 May 2004 elections.

Q What is the effect if a candidate is disqualified by final judgment? Explain.

ANS: The law expressly declares that a candidate disqualified by final judgment before an election
cannot be voted for, and votes cast for him shall not be counted. This is a mandatory provision of law.
Section 6 of Republic Act No. 6646, The Electoral Reforms Law of 1987, states:

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 declared by final
judgment before an election to be disqualified and he is voted for and receives the winning number of
votes in such election, the Court or Commission shall continue with the trial and hearing of the action,
inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt
is strong.

Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when the
disqualification becomes final before the elections, which is the situation covered in the first sentence of
Section 6. The second is when the disqualification becomes final after the elections, which is the
situation covered in the second sentence of Section 6.

The present case falls under the first situation. Section 6 of the Electoral Reforms Law governing the
first situation is categorical: a candidate disqualified by final judgment before an election cannot be
voted for, and votes cast for him shall not be counted. The Resolution disqualifying Cayat became final
on 17 April 2004, way before the 10 May 2004 elections. Therefore, all the 8, 164 votes cast in Cayats
favor are stray. Cayat was never a candidate in the 10 May 2004 elections. Palilengs proclamation is
proper because he was the sole and only candidate, second to none. (Cayat v. COMELEC).

Q Why is the proclamation of Cayat void? Explain.

ANS: Cayats proclamation is void because the decision disqualifying him had already become final on
17 April 2004. There is no longer any need to ascertain whether there was actual knowledge by the
voters of his disqualification when they casted their votes on election day because the law mandates
that Cayats votes shall not be counted. There is no disenfranchisement of the voters. Rather, the
voters are deemed by law to have deliberately voted for a non-candidate, and thus their votes are stray
and shall not be counted. (Cayat. v. COMELEC).

Q Is the intervention of the Vice-Mayor proper? Why?

ANS: No. The petition-in-intervention should be rejected because the doctrine on the rejection of the
second placer does not apply to this case. The doctrine applies only if the winning candidates
disqualification has not yet become final and executory before the election. In this case, the
disqualification was final and executory before the election, hence, there was no second placer. (Cayat
v. COMELEC).

Three-term limit; even if as caretaker.

Q Mayor Marino Morales ran for a fourth term despite having served for three (3) consecutive
terms as Mayor of Mabalacat, Pampanga. In answer to a petition to cancel his certificate of candidacy,
he alleged that while he served his second term, he did it as a caretaker of the office or as a de facto
officer because he was suspended by the Ombudsman from January 16, 1999 to July 15, 1999 and
that his proclamation was declared void and which became final and executory on August 6, 2001. The
COMELEC declared him disqualified. Before the Supreme Court, he contended that his second term
from July 1, 1999 to June 30, 2001 may not be counted since his proclamation was void. Is the
contention correct? Why?

ANS: No, because his service from July 1, 1999 to June 30, 2001 was for a full term, hence, the three-
term limit rule applies to him. This is especially so that he assumed office. He served as mayor up to
June 30, 2001. He was mayor for the entire period notwithstanding the decision in the electoral protest
case ousting him as mayor. As held in Ong v. Alegre, G.R. Nos. 162395 and 163354, January 23,
2006, 479 SCRA 473, such circumstance does not constitute an interruption in serving the full term. In
Ong, he served the full term even as there was a declaration of failure of election.

Section 8, Article X of the Constitution provides that the terms of the office of elected local officials x x
x, shall be three years and no such official shall serve for more than three consecutive terms. x x x

Section 43(b) of R.A. No. 7160 (the Local Government Code) clearly provides that no local official shall
serve for more than three consecutive terms in the same position.

Morales has been mayor of Mabalacat continuously without any break since July 1, 1995, hence, he is
disqualified. (Rivera III, et al. v. COMELEC, G.R. No. 167591 and Dee v. COMELEC, et al., G.R. No.
170577, May 6, 2007).

Q Explain the reason for the maximum term limit.

ANS: The framers of the Constitution wanted to establish some safeguards against the excessive
accumulation of power as a result of consecutive terms.

As held in Latasa v. COMELEC, G.R. No. 154829, December 10, 2003, 417 SCRA 601, the three-term
limit is an exception to the peoples freedom to choose those who will govern them in order to avoid the
evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result
of a prolonged stay in the same office. (Rivera III, et al. v. COMELEC, et al., G.R. No. 167591 and
companion case, May 9, 2007).

Q Is not the case of Morales similar to the case of Lonzanida v COMELEC? Explain.

ANS: No. In Lonzanida v. COMELEC, while he assumed office, he voluntarily vacated when there was
a declaration of failure of election. He did not fully serve the term, hence, he was qualified to run for a
third term.

The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida,
the result of the mayoralty elections was declared a nullity for the stated reason of failure of election,
and, as a consequence thereof, the proclamation of Lonzanida as mayor-elect was nullified, followed by
an order for him to vacate the office of the mayor. For another, Lonzanida did not fully serve the 1995-
1998 mayoral term, there being an involuntary severance from office as a result of legal processes. In
fine, there was an effective interruption of the continuity of service.

On the other hand, the failure-of-election factor does not obtain in the present case. But more
importantly, here, there was actually no interruption or break in the continuity of Francis service
respecting the 1998-2001 term. Unlike Lonzanida, Francis was never unseated during the term in
question; he never ceased discharging his duties and responsibilities as mayor of San Vicente,
Camarines Norte for the entire period covering the 1998-2001 term.

Instead, Ong v. Alegre applies to Morales. Francis Ong was elected and assumed the duties of the
mayor of San Vicente, Camarines Norte for three consecutive terms. But his proclamation as mayor in
the May 1998 election was declared void. As ruled, his service for the term 1998 to 2001 is for the full
term. Clearly, the three-term limit rule applies to him. There is no reason why this ruling should not also
apply to Morales who is similarly situated. (Rivera III, et al. v. COMELEC, et al., May 9, 2007).

Q Morales cited Borja v. COMELEC to apply to him. Is this case applicable? Why?

ANS: No, because with the death of Mayor Cruz, Capco assumed office as mayor by virtue of the
principle of succession, he being the vice-mayor. He was not therefore, elected even if he served the
rest of the term of the mayor, hence, his assumption of the office of the mayor upon the death of the
incumbent mayor may not be regarded as a term.

Similarly, in Adormeo v. COMELEC, G.R. No. 147927, February 4, 2002, 376 SCRA 90, it was held
that assumption of the office of mayor in a recall election for the remaining term is not the term
contemplated under Section 8, Article X of the Constitution and Section 43(b) of R.A. 7160 (the Local
Government Code). There was a break in the service of the mayor. He was a private citizen for a
time before running for mayor in the recall elections. (Rivera III, e al. v. COMELEC, et al., G.R. No.
167591, May 9, 2007).

Q What is the effect if the certificate of candidacy of a candidate is cancelled? Explain.

ANS: Any candidate who has been declared by final judgment to be disqualified shall not be voted for,
and the votes cast for him shall not be counted. (Secs. 6 and 7, RA 6646).
Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for
an office for which he did not present himself shall be considered as a stray vote but it shall not
invalidate the whole ballot. (Sec. 211, Omnibus Election Code).

Morales can not be considered a candidate in the May 2004 elections. Not being a candidate, the votes
cast for him should not be counted and must be considered stray votes. (Rivera III, et al. v. COMELEC,
G.R. No. 167591, May 9, 2007).

Q It was contended that since Morales was disqualified, the second placer should be proclaimed
as the winner. Is the contention correct? Why?

ANS: In Labo v. COMELEC, the Court has ruled that a second place candidate cannot be proclaimed
as a substitute winner.

The rule is that, the ineligibility of a candidate receiving majority votes does not entitle the eligible
candidate receiving the next highest number of votes to be declared elected. A minority or defeated
candidate cannot be deemed elected to the office.

As a consequence of ineligibility, a permanent vacancy in the contested office has occurred. This
should now be filled by the vice-mayor in accordance with Sec. 44 of the Local Government Code.
(Rivera III, et al. v. COMELEC, et al., G.R. No. 167591, May 9, 2007 citing Labo v. COMELEC, G.R.
No. 105111, July 3, 1992, 211 SCRA 297).

Q What are the requirements which must concur for the three-term limit to apply?

ANS: For the three-term limit to apply, the following two conditions must concur:

1) that the official concerned has been elected for three consecutive terms in the same local
government post; and

2) that he has fully served three consecutive terms. (Lonzanida v. COMELEC, G.R. No. 133495,
September 3, 1998, 295 SCRA 157; Ong v. Alegre, 479 SCRA 473; Adormeo v. COMELEC, 376 SCRA
90; Rivera III, et al. v. COMELEC, et al., G.R. No. 167591, May 9, 2007).

Effect if there is a tie.

Q What is the proper procedure to be resorted to in case of a tie? Explain.

ANS: To resolve the tie, there shall be drawing of lots. Whenever it shall appear from the canvass that
two or more candidates have received an equal and highest number of votes, or in cases where two or
more candidates are to be elected for the same position and two or more candidates received the same
number of votes for the last place in the number to be elected, the board of canvassers, after recording
this fact in its minutes, shall by resolution, upon five days notice to all the tied candidates, hold a special
public meeting at which the board of canvassers shall proceed to the drawing of lots of the candidates
who have tied and shall proclaim as elected the candidates who may favored by luck, and the
candidates so proclaimed shall have the right to assume office in the same manner as if he had been
elected by plurality of votes. The board of canvassers shall forthwith make a certificate stating the name
of the candidate who had been favored by luck and his proclamation on the basis thereof.

Nothing in this section shall be construed as depriving a candidate of his right to contest the election.
(Sec. 240, BP 881; Tugade v. COMELEC, et al., G.R. No. 171063, March 2, 2007).

Withdrawal of certificate of candidacy.

Q Hans Roger filed his certificate of candidacy but withdrew the same. He was substituted by Joy
Luna but the COMELEC denied due course to her certificate on the ground that Hans being under age,
he could not have filed a valid certificate of candidacy. There was, however, no petition to deny Hans
certificate of candidacy. Did the COMELEC act correctly? Why?
ANS: No. The COMELEC acted with grave abuse of discretion amounting to lack or excess of
jurisdiction in declaring that Hans Roger, being under age, could not be considered to have filed a valid
certificate of candidacy and, thus, could not be validly substituted by Luna. The COMELEC may not, by
itself, without the proper proceedings, deny due course to or cancel a certificate of candidacy filed in
due form. (Cipriano v. COMELEC, G.R. No. 158830, August 10, 2004, 436 SCRA 45). In Sanchez v.
Del Rosario, the Court ruled that the question of eligibility or ineligibility of a candidate for non-age is
beyond the usual and proper cognizance of the COMELEC.

If Hans Roger made a material misrepresentation as to his date of birth or age in his certificate of
candidacy, his eligibility may only be impugned through a verified petition to deny due course to or
cancel such certificate of candidacy under Section 78 of the Election Code.

In this case, there was no petition to deny due court to or cancel the certificate of candidacy of Hans
Roger. The COMELEC only declared that Hans Roger did not file a valid certificate of candidacy and,
thus, was not a valid candidate in the petition to deny due course to or cancel Lunas certificate of
candidacy. In effect, the COMELEC, without the proper proceedings, cancelled Hans Rogers certificate
of candidacy and declared the substitution of Luna invalid. (Luna v. COMELEC, et al., G.R. No.
165983, April 24, 2007).

Pre-proclamation controversy; extent of power of COMELEC.

Q What is the extent of the power of the COMELEC in pre-proclamation controversy? Explain.

ANS: It is a well-established rule in pre-proclamation cases that the Board of Canvassers is without
jurisdiction to go beyond what appears on the face of the election return. The rationale is that a full
reception of evidence aliunde and the meticulous examination of voluminous election documents would
run counter to the summary nature of a pre-proclamation controversy. However, this rule is not without
any exception. In Lee v. Commission on Elections, it was held that if there is a prima facie showing that
the return is not genuine, several entries having been omitted in the questioned election return, the
doctrine does not apply. The COMELEC is thus not powerless to determine if there is basis for the
exclusion of the questioned returns. (G.R. No. 157004, July 4, 2003, 405 SCRA 303; Ewoc, et al. v.
COMELEC, et al., G.R. No. 171882, April 3, 2007).

Handwritings have only one general appearance.

Q May the COMELEC invalidate certain ballots merely on a finding that the writings have the same
general appearance and pictorial effect? Explain.

ANS: No. General resemblance is not enough to warrant the conclusion that two writings are by the
same hand. (Silverio v. Clamor, 125 Phil. 917 (1967)).

in order to reach the conclusion that two writings are by the same hand there must not only be present
class characteristics but also individual characteristics or dents and scratches in sufficient quantity to
exclude the theory of accidental coincidence; to reach the conclusion that writings are by different
hands we may find numerous likeness in class characteristics but divergences in individual
characteristics, or we may find divergences in both, but the divergence must be something more than
mere superficial differences. (Osborns Questioned Documents, p. 244; Delos Reyes v. COMELEC, et
al., G.R. No. 170070, February 28, 2007).

Neighborhood rule.

The votes contested in this appeal are all misplaced votes, i.e., votes cast for a candidate for the wrong
or inexistent office. In appreciating such votes, the COMELEC may applied the neighborhood rule. As
used by the Court, this nomenclature, loosely based on a rule of the same name devised by the House
of Representatives Electoral Tribunal (HRET) in Nograles v. Dureza, HRET Case No. 34, June 16,
1989, 1 HRET Rep. 138), refers to an exception to the rule on appreciation of misplaced votes under
Section 211(19) of Batas Pambansa Blg. 881 (Omnibus Election Code) which provides:

Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for
an office for which he did not present himself shall be considered as a stray vote but it shall not
invalidate the whole ballot.
Section 211(19) is meant to avoid confusion in the minds of the election officials as to the candidates
actually voted for and to stave off any scheming design to identify the vote of the elector, thus defeating
the secrecy of the ballot which is a cardinal feature of our election laws. (Amurao v. Calangi, 10 Phil.
347 (1958)). Section 211(19) also enforces Section 195 of the Omnibus Election Code which provides
that in preparing the ballot, each voter must fill his ballot by writing in the proper place for each office
the name of the individual candidate for whom he desires to vote.

Excepted from Section 211(19) are ballots with (1) a general misplacement of an entire series of names
intended to be voted for the successive offices appearing in the ballot (Cordero v. Hon. Moscardon, 217
Phil. 392 (1984)); (2) a single (Farin v. Gonzales, 152 Phil. 598 (1973)) or double (Sarmiento v.
Quemado, No. L-18027, 29 June 1962, 5 SCRA 438) misplacement of names where such names were
preceded or followed by the title of the contested office or where the voter wrote after the candidates
name a directional symbol indicating the correct office for which the misplaced name was intended
(Moya v. Del Fierro, 69 Phil. 199 (1939)); and (3) a single misplacement of a name written (a) off-center
from the designated space (Mandac v. Samonte, 54 Phil. 706 (1930)), (b) slightly underneath the line
for the contested office (Sarmiento v. Quemado, No. L-18027, 29 June 1962, 5 SCRA 438; Moya v. Del
Fierro, 69 Phil. 199 (1939)), (c) immediately above the title for the contested office ((Villavert v. Fornier,
84 Phil. 756 (1949)), or (d) in the space for an office immediately following that for which the candidate
presented himself. ((Abad v. Co, G.R. No. 167438, 25 July 2006, 496 SCRA 505 and Ferrer v.
Commission on Elections, 386 Phil. 431 (2000)). In these instances, the misplaced votes are
nevertheless credited to the candidates for the office for which they presented themselves because the
voters intention to so vote is clear from the face of the ballots. This is in consonance with the settled
doctrine that ballots should be appreciated with liberality to give effect to the voters will. (Velasco v.
COMELEC, et al., G.R. No. 166931, February 22, 2007).

Marked ballot.

Q When is a ballot considered as marked? Explain.

ANS: In order for a ballot to be considered marked, in the sense necessary to invalidate it, it must
appear that the voter designedly place some superfluous sign or mark on the ballot which might serve
to identify it thereafter. No ballot should be discarded as a marked ballot unless its character as such is
unmistakable. The distinguishing mark which the law forbids to be placed on the ballot is that which the
elector may have placed with the intention of facilitating the means of identifying said ballot, for the
purpose of defeating the secrecy of suffrage which the law establishes. Thus, marked ballots are ballots
containing distinguishing marks, the purpose of which is to identify them. (Perman v. COMELEC, et al.
G.R. No. 174010, February 8, 2007, Tinga, J).

Failure of election.

Q When is there failure of election?

ANS: There are three instances where a failure of elections may be declared, thus:

(a) the election in any polling place has not been held on the date fixed on account of force majeure,
violence, terrorism, fraud or other analogous causes;

(b) the election in any polling place has been suspended before the hour fixed by law for the closing of
the voting on account of force majeure, violence, terrorism, fraud or other analogous causes; or

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

In all three instances, there is a resulting failure to elect. In the first instance, the election has not been
held. In the second instance, the election has been suspended. In the third instance, the preparation
and the transmission of the election returns give rise to the consequent failure to elect; the third
instance is interpreted to mean that nobody emerged as a winner. (Mutilan v. COMELEC, et al., G.R.
No. 171248, April 2, 2007).
Note:

None of the three instances is present in this case. In this case, the elections took place. In fact, private
respondent was proclaimed the winner. Petitioner contests the results of the elections on the grounds
of massive disenfranchisement, substitute voting, and farcical and statistically improbable results.
Petitioner alleges that no actual election was conducted because the voters did not actually vote and
the ballots were filled up by non-registered voters.

Q May an interlocutory order of a COMELEC Division be the subject of certiorari to the SC?
Explain.

ANS: As a rule, No. The exception is in an unusual case where the petition for certiorari questioning
the interlocutory order of a COMELEC Division was pending before the SC, the main case which was
meanwhile decided by the COMELEC En Banc was likewise elevated to the Court. Thus, there was a
situation where the petition for certiorari questioning the interlocutory orders of the COMELEC Division
and the petition for certiorari and prohibition assailing the Resolution of the COMELEC En Banc on the
main case were consolidated. The issues raised in the petition for certiorari were also raised in the
main case and therefore there was actually no need to resolve the petition assailing the interlocutory
orders. (Rosal v. COMELEC, G.R. No. 168253 and 172741, March 16, 2007; Soriano, Jr., et al. v.
COMELEC, et al., G.R. No. 164496-505, April 2, 2007).

Note:

The general rule is that a decision or an order of a COMELEC Division cannot be elevated directly to
the SupremeCourt through a special civil action for certiorari. Furthermore, a motion to reconsider a
decision, resolution, order, or ruling of a COMELEC Division shall be elevated to the COMELEC En
Banc. However, a motion to reconsider an interlocutory order of a COMELEC Division shall be resolved
by the division which issued the interlocutory order, except when all the members of the division decide
to refer the matter to the COMELEC En Banc.

Thus, in general, interlocutory orders of a COMELEC Division are not appealable, nor can they be
proper subject of a petition for certiorari. To rule otherwise would not only delay the disposition of cases
but would also unnecessarily clog the Court docket and unduly burden the Court. This does not mean
that the aggrieved party is without recourse if a COMELEC Division denies the motion for
reconsideration. The aggrieved party can still assign as error the interlocutory order if in the course of
the proceedings he decides to appeal the main case to the COMELEC En Banc. The exception
enunciated in Kho and Repol is when the interlocutory order of a COMELEC Division is a patent nullity
because of absence of jurisdiction to issue the interlocutory order, as where a COMELEC Division
issued a temporary restraining order without a time limit, which is the Repol case, or where a
COMELEC Division admitted an answer with counter-protest which was filed beyond the reglementary
period, which is the Kho case.

The Court has already ruled in Reyes v. RTC of Oriental Mindoro, that it is the decision, order or ruling
of the COMELEC En Banc that, in accordance with Section 7, Art. IX-A of the Constitution, may be
brought to the Supreme Court on certiorari. The exception provided in Kho and Repol is unavailing in
this case because unlike in Kho and Repol, the assailed interlocutory orders of the COMELEC First
Division in this case are not a patent nullity. The assailed orders in this case involve the interpretation of
the COMELEC Rules of Procedure. Neither will the Rosal case apply because in that case the petition
for certiorari questioning the interlocutory orders of the COMELEC Second Division and the petition for
certiorari and prohibition assailing the Resolution of the COMELEC En Banc on the main case were
already consolidated.

The Court also notes that the COMELEC First Division has already issued an Order dated 31 May 2005
dismissing the protests and counter-protests in EPC Nos. 2004-36, 2004-37, 2004-38, 2004-39, 2004-
40, 2004-41, 2004-42, 2004-43, 2004-44, and 2004-45 for failure of the protestants and protestees to
pay the required cash deposits. Thus, the Court have this peculiar situation where the interlocutory
order of the COMELEC First Division is pending before the Court but the main case has already been
dismissed by the COMELEC First Division. This situation is precisely what the Court are trying to avoid
by insisting on strict compliance of the rule that an interlocutory order cannot by itself be the subject of
an appeal or a petition for certiorari.
Misrepresentation in a certificate of candidacy; effect.

Q When is misrepresentation in a certificate of candidacy material? Explain.

ANS: A misrepresentation in a certificate of candidacy is material when it refers to a qualification for

elective office and affects the candidates eligibility. Second, when a candidate commits a material
misrepresentation, he or she may be proceeded against through a petition to deny due course to or
cancel a certificate of candidacy under Section 78, or through criminal prosecution under Section 262
for violation of Section 74. Third, a misrepresentation of a non-material fact, or a non-material
misrepresentation, is not a ground to deny due course to or cancel a certificate of candidacy under
Section 78. In other words, for a candidates certificate of candidacy to be denied due course or
cancelled by the COMELEC, the fact misrepresented must pertain to a qualification for the office sought
by the candidate. (Nelson T. Lluz, et al. v. COMELEC, et al., G.R. No. 172840, June 7, 2007).

Q If a candidate misrepresents his profession, is he disqualified? Explain.

ANS: No. No elective office, not even the office of the President of the Republic of the Philippines,
requires a certain profession or occupation as a qualification.

Profession or occupation not being a qualification for elective office, misrepresentation of such does not
constitute a material misrepresentation. Certainly, in a situation where a candidate misrepresents his or
her profession or occupation in the certificate of candidacy, the candidate may not be disqualified from
running for office under Section 78 as his or her certificate of candidacy cannot be denied due course
or canceled on such ground. (Nelson T. Lluz, et al. v. COMELEC, et al., G.R. No. 172840, June 7,
2007).