ELECTION LAW PRE-BAR REVIEW RA 8189 An Act Providing for a General Registration of Voters,

Atty. Jocelyn Arro-Valencia (June 11, Adopting a System of Continuing Registration

1996) Prescribing the Procedures Thereof and Authorizing
the Appropriation of Funds therefore
BAR Examination Coverage for Election Laws RA 8295 An Act Providing for the Proclamation of a Lone
(June 6, Candidate for any Elective Office in a special
A. Suffrage 1997 Election, and for Other Purposes
B. Qualification and disqualification of voters RA 8436 An Act Authorizing the Comelec to Use An
C. Registration of Voters (December Automated System in the May 11, 1998 National and
D. Inclusion and Exclusion Proceedings 22, 1997) Local Elections and in subsequent National and Local
E. Political Parties Electoral Exercises. (Sec. 11 thereof impliedly
repealed Sec. 67 of BP 881 being inconsistent with
a. Jurisdiction of the COMELEC over political
Sec. 11, which provides that elective officials running
parties
for any office other than the one he/she is holding in a
b. Registration permanent capacity, except for Pres. And VP, shall be
F. Candidacy deemed resigned only upon the start of the campaign
a. Qualification of candidates period corresponding to the position for which he/she
b. Filing of certificates of candidacy is running)
i. Effect of filing RA 8524 An Act Changing the Term of Office of Barangay
ii. Substitution of candidates (February Officials and Members of the SK from 3 years to 5
iii. Ministerial duty of COMELEC 14, 1998), years amending Sec. 43 of RA 7160, Local
to receive certificate Government Code of 7160.
iv. Nuisance candidates RA 9006 Political Advertising Ban and Fair Election Practices
v. Petition to deny due course to or (February Act. (Sec. 14 expressly repealed Sec. 67 & 85
cancel certificates of candidacy 12, 2001), (Political Ad Ban has been lifted), Sec. 10 & 11 of RA
vi. Effect of disqualification 6646 and rendered ineffective the provision of Sec. 11
vii. Withdrawal of candidates of RA 8436 insofar as the applicability of Sec. 11 on
G. Campaign the matter is concerned.)
a. Premature campaigning RA 9164 An Act Providing for Synchronized Barangay and SK
(March 19, Elections, Amending RA 7160, As Amended.
b. Prohibited contributions
c. Lawful and prohibited election propaganda 2002)
d. Limitations on expenses RA 9189 An Act Providing For a System of Overseas Absentee
e. Statement of contributions and expenses (February Voting By Qualified Citizens of the Philippines
13, 2003) Abroad
H. Board of Election Inspectors and Board of Canvassers
a. Composition RA 9225 An Act Making the citizenship of Philippine Citizens
b. Powers (August 29, who Acquire Foreign Citizenship Permanent,
I. Remedies and jurisdiction in election law 2003) Amending For the Purpose Commonwealth Act No.
63, As Amended
a. Petition to deny due course to or cancel a
RA 9244 An Act Eliminating the Preparatory Recall Assembly
certificate of candidacy
(February as a Mode of Instituting Recall of Elective
b. Petition for disqualification Government
c. Petition to declare failure of elections 19, 2004),
Officials
d. Pre-proclamation controversy RA 9369 An Act which amended Republic Act 8436, entitled
e. Election Protest “an Act authorizing the Commission on Elections to
f. Quo Warranto Use an automated Election System in the May 11,
J. Prosecution of election offenses (excluding Penal Provisions) 1998 National and Local elections and in Subsequent
Include: OEC as amended and Automation Laws RA National and Local electoral Exercises, to Encourage
8436 as amended by RA 9369) Transparency, Credibility, Fairness and Accuracy of
Elections, Amending for the Purpose BP Blg. 881, as
BATAS PAMBANSA BLG. 881 OR THE OMNIBUS Amended, Republic Act 7166 and other related laws.
ELECTION CODE OF THE PHILIPPINES (OEC) RA 9525 an Act Appropriating the Sum of
(Php11,301,790,000.000 As Supplemental budget for
Batas Pambansa Blg. 881 otherwise known as the OEC an AES and for other purposes
of the Philippines which was enacted into law on December 3,
1985 and took effect upon its approval (OEC, Section 283), is the
basic statutory election law of the Philippines. It codified all SIGNIFICANCE - The basic law on elections and these
previous election laws which repealed PD 1296 otherwise known legislations (amendments) are designed to improve the law and to
as the “Election Code of 1978, as amended (OEC 282). protect the integrity of the elections in order to achieve the
objective of holding an honest, orderly, peaceful, free and credible
BP Blg. 881 has undergone several amendments under the elections (HOPE-FRECRE).
1987 Constitution and among the most significant amendatory
laws include – APPLICABILITY – The OEC shall govern all elections of public
officers and, to the extent appropriate, all referenda and plebiscite
RA 6646 The Electoral Reform Law of 1987. Specifically (Section 2 OEC). This is further strengthened by Sec. 2(1) of
(January 5, Section 2 thereof reenacted the OEC, when it Article IX-C of the Constitution which empowers the COMELEC,
1988) provided that the “first local elections under the new to “enforce and administer all laws and regulations relative to the
Constitution and all subsequent elections and conduct of an election, plebiscite, initiative, referendum and
plebiscites shall be governed by this Act and by the recall.” The COMELEC is mandated to apply the OEC and all
provisions of the BP 881, otherwise known as the other statutes on the subject government election laws. (Section 36
OEC of the Philippines, and other election laws not of RA 7166).
inconsistent with this Act.
RA 6735 An Act Providing for a System of Initiative and C. RA 7160, The Local Government Code of 1991, in so
(August 4, Referendum and Appropriating Funds Therefore far as –
1989)  The qualifications and elections of local elective
RA 7160 The Local Government Code of 1991 Provisions officials;
(October 10, relating to the Qualifications and Election of Local  Disqualification of local elective officials
1991) Elective Offices, the Recall of Local Elective
Officials, and Local Initiative and Referendum
 Recall of local elective officials
(Sections 39-43, 69-75, 120-127);  Local Initiative and Referendum
RA 7166 An Act Providing for Synchronized National and
(November Local Election and for Electoral Reforms 1) SUFFRAGE
26, 1991)
RA 7941 An Act Providing for the Election of Party-List THEORY OF POPULAR SOVEREIGNTY - Section 1, Article
(March 3, Representatives through the Party-List System and 11 of the Constitution: “The Philippines is a democratic and
1995) Appropriating Funds Therfor republican state. Sovereignty resides in the people and all
An Providing for the Repatriation of Filipino Women government authority emanates from them.” A democratic and
RA 8171
Who Have Lost Their Philippine Citizenship by republic government derives all its powers, directly or indirectly,
(October 23,
Marriage to Aliens and of Natural-Born Filipinos from the people–who represents the sovereign power of the state.
1995),

1
In Angel G. Naval v. COMELEC and Nelson B. Julia (729 SCRA
299), then Associate Justice Reynato S. Puno explained the
character of a republican state and a public office, viz: A republic
is a representative government, a government run by and for the
people. It is not a pure democracy where the people govern
themselves directly. The essence of republicanism is
representation and renovation, the selection by the citizenry of
a corps of public functionaries who derive their mandate from
the people and act on their behalf, serving for a limited period
only, after which they are replaced/not re-elected or retained/re-
elected, at the option of their principal (sovereignty). Obviously, a
republican government is a responsible government whose
officials hold and discharge their position as a public trust and
shall, according to the Constitution, at all times be accountable to
the people they are sworn to serve. The purpose of a republican
government, it is almost needless to state, is the promotion of
the common welfare according to the will of the people
themselves.
This holding was made in connection with the issue of the 3-term
limit rule in connection with the re-apportionment of legislative
district.
Associated with a democratic process is the exercise of –
SUFFRAGE
 Is the right and obligation of qualified citizens to vote
in the election of certain national and local officers of
the government and in the decision of public
questions submitted to the people (involves other
forms of popular intervention)
 It is not a natural right but is a right created by law.
It is a privilege granted by the State to such persons
or classes as are most like to exercise it for the public
good. (Pp. of the Philippine Islands v. Corral 62 Phil
945 as quoted in Kabataan Party-List vs. Comelec
777 SCRA 574). The case pertained to the
implementation of RA 10367 which mandated the
COMELEC to implement a mandatory biometrics
registration system for new voters in order to
establish a clean, complete, permanent and updated
list of voters through the adoption of biometric
technology. Likewise registered voters whose
biometrics have not been captured shall submit
themselves for validation and those who fail will
result to their deactivation or No Bio-No Boto
(amendment to RA Section 28 of RA 8189). It is not
a necessary accompaniment of citizenship. It is
granted to an individual only upon the fulfillment of
certain minimum conditions deemed essential for the
welfare of the common good . (not otherwise
disqualified by law/ those possess the qualification
and none of the disqualification)
 Not t absolute as it is subject to existing substantive
and procedural requirements provided in the
Constitution, statutes and valid rules and regulations
(qualifications and requirement of registration).
 It is classified as political right, as well as a bounden
duty of every citizen enabling him to participate in
the process of government to assure that it truly
derives its powers solely from the consent of the
governed (Pungutan v. Abubakar 43 SCRA 1 (1972).
 Means by which people express their sovereign
judgment. (Nolasco v. Comelec 275 SCRA 763).
 Suffrage as a duty is in the nature of a public trust
and constitutes a voter a representative of the whole
people. This duty requires that the privileged
bestowed should be exercised not exclusively for the
benefit of the citizen or citizens proferring it but in
good faith and with intelligent zeal for the general
benefit and welfare of the State. (Cipriano Abanil v.
Justice of the Peace Court of Bacolod, Negros
Occidental et. al. 70 Phil. 28 (1940)).
 As to its applicability: Suffrage applies not only to
elections, but may also extend to initiatives,
referenda, plebiscite and recall.
 Suffrage also includes the right of the voter to verify
whether the vote-counting machines property
recorded their vote. The SC rules that it is not only a
statutory right; it is one that enables their individual
participation in governance as sovereign.
(Bagumbayan-VNP Movement, Inc. and Richard J.
Gordon, as Chairman vs. Comelec (787 SCRA 1).
(Feature in the PCOS machine is the Voter-Verified
Paper Audit Trail (VVPAT), functionality is in the
form of a printed receipt and a touch screen reflecting
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the votes in the voting-counting machine. Comelec
decided not to implement it as it will add 5-7 minutes
of voting time and may be used for vote buying.
Procedure is that receipt can be read and thereafter
deposited in a box).
Sec. 1, Art. V of 1987 the Constitution provides,
“Suffrage may be exercised by all citizens of the Philippines, not
otherwise disqualified by law, who are at least 18 years of age, and
who shall have resided in the Philippines for at least one year and
in the place wherein they propose to vote, for at least 6 months
immediately preceding the election. No literacy, property, or other
substantive requirements shall be imposed on the exercise of
suffrage. (RA 8189 Voters Registration Act)
Suffrage may also be exercised by qualified Filipinos
abroad. Article V, Section 2 of the 1987 Constitution further
provides that, “The Congress shall provide a system for securing
the secrecy and sanctity of the ballot as well as a system for
absentee voting by qualified Filipinos abroad.” Congress enacted
R.A. 9189 “Overseas Absenting Voting Act of 2003” now amended
by the Overseas Absenting Voting Act of 2013.
SCOPE OF SUFFRAGE: FORMS OF POPULAR
INTERVENTION
Sec. 2(1) of Article IX-C of the Constitution, the
Comelec is vested with the power to “enforce and administer all
laws and regulations relative to the conduct of election, plebiscite,
initiative, referendum and recall”. (This pertains to the
Administrative/Executive Power – )
The fundamental election laws is enshrined in the
Constitution. The OEC or BP 881 is the basic statutory election
law of the Philippines that has undergone several amendments
under the 1987 Constitution. These legislative amendments (most
significant are: RA 6646 The Electoral Reforms Law of 1987, RA
7166 the Act providing for the Synchronized National and Local
Elections, RA 8189 The Voters Registration Act, RA 9189
Overseas Absentee Voting Law, RA 9006 The Fair Elections Law,
RA 9369 The Automated Election Law, among others) were
designed to improve the law (OEC) and to protect the integrity of
the electoral process in order to achieve the objective of holding an
HONEST, ORDERLY, PEACEFUL, FREE and CREDIBLE
ELECTIONS. (HOPE-FRECRE).
Notwithstanding these legislative enactments, we can
confidently say that the OEC remains the basic law on elections
that shall govern all elections of public officers, and, to the extent
appropriate, all referenda and plebiscite (Section 2, of RA 6646
The Electoral Reforms Law which re-enacted the OEC).
1) Election – is the means by which the people
choose, through the use of the ballot, their
officials for definite and fixed periods and to
whom they entrust, for the time being as their
representatives, the exercise of powers of
government (Garchitorena v. Crescini 39 Phil. 258
(1918)). In ordinary dialect or understanding, the
Court in Carlos v. Angeles, 346 SCRA 571 (2000)
held that elections refers to the conduct of the
poles (pre election, proper and post - elaborate)
– listing of votes, holding of electoral campaign,
act of casting and receiving the ballots from the
voters, counting them, and canvassing of the
election returns and proclamation of
candidates. . .it refers to the entire and complete
electoral process.
The essence of elections is the plurality of votes
(which is determined not by the number of registered voters
but the voters who actually voted). A public office is filled
only by those who receive the highest number of votes cast in
the election for that office which is the basic tenet in all
republican form of government. (Penera v. Comelec 599
SCRA 609; Rulloda v. Comelec 395 SCRA 535; Sunga v.
Comelec 288 SCRA 76).
a. Kinds of Election
1 Regular election – refers to an election
participated in by those who possess the right of suffrage and
not disqualified by law and who are registered voters.
2. Special elections – election not regularly
held but which is conducted
 to supply a vacancy in a particular office
before the expiration of the full term for
 which the incumbent was elected. Sec. 4 of
RA 7166 provides that, “in case a permanent
vacancy shall occur in the Senate or House
of Representative at least one (1) year before
the expiration of the term, the Comelec shall
call and hold a special elections to fill the
vacancy not earlier than 60 days nor longer
than 90 days after the occurrence of the
vacancy.
 Article VI, Section 9, Constitution
provides that in case of such vacancy in the
Senate, the special elections shall be held
simultaneously with the next succeeding
regular elections.
 Article VII, Sec. 10 of the Constitution, in
case a vacancy occurs in the offices of the
President and Vice-President, with the
limitation that no special elections can be
called if the vacancy occurs within 18
months before the date of the next
presidential elections.
 In cases were a postponement and failure of
elections are declared by the Comelec in
accordance with Sections 5,6,7 of BP 881).
Lucero v. Comelec 234 SCRA 280 (1994);
Borja v. Comelec 260 SCRA 604 (1996).
In fixing the date for special elections the Comelec
should see to it that:
1) special elections should be held not be later than
thirty (30) days after the cessation of the cause of the
postponement or suspension of the election or the
failure to elect;
2) special elections should be reasonably close to the
date of the election not held, suspended or which
resulted in the failure to elect. (Lucero v. Comelec 234
SCRA 280 expound).
3. Manual Elections – Manual/mechanical casting/voting,
counting, and canvassing stages which involves the following –
a. Use of paper “write-in” ballots during the casting
stage;
b. The “direct reading and manual tallying of votes” in
multiple copies of election returns (ER); and
c. The manual addition of results in Statement of Votes
(SOVs) and the Certificates of Canvass (COCs)
4. Automated Election System (AES) – a system using
appropriate technology which has been demonstrated in the voting,
counting, consolidating, canvassing, and transmission of election
result, and other electoral process. (Sec. 2, RA 9369, The
Automated Election System Law, As Amended)
2) Plebiscite – an electoral process by which an
initiative on the Constitution is approved or
rejected by the people (Sec. 3 R.A. 6735 “The
Initiative and Referendum Act). Generally
associated with the ratification process.
Plebiscite is required –
a. Section 4, Article XVII of the
Constitution, with reference to the voting to
determine whether the voters in the country
are in favor of or against the ratification of
the Constitution or an amendment thereto
and
b. Sec. 10, Art. X, in connection with the
voting to determine whether the voters in the
political units affected agree to a proposed
creation, division, merger, abolition or
boundary change of a political unit.
Padilla Jr. v. 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 rejected the
creation of Tulay-na-Lupa.
Petitioner Gov. of Camarines Norte in a Special Civil Action for
Certiorari, seek to set aside the Plebiscite asserting that it was a
complete failure and that the results obtained were invalid and
illegal because the Plebiscite as mandated by Comelec Res. No.
2312 should have been conducted only in the political unit or units
3
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 specifically, Art. X, Section 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 cast in a Plebiscite in the ‘POLITICAL UNITS
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. The Court reiterated its ruling in Tan v. Comelec 142
SCRA 727 (1986), that “in the conduct of a Plebiscite, it is
imperative that all the constituents of the mother and daughter
units affected shall be included.
Sanidad v. Comelec 181 SCRA 529, the Supreme Court declared
as unconstitutional the restriction imposed by 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 plebiscite 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.
City of Pasig v. Comelec/Municipality of Cainta Province of
Rizal 314 SCRA 179 (1999), the issue raised was 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. The City of Pasig passed an 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 that the said activities await the decision of
the RTC on the matter.
That Comelec suspended the holding of the plebiscite
for the creation of Brgy. Karangalan but rendered the creation of
Napico as moot as the same has already been ratified in the
plebiscite held for the purpose. The SC held that the creation of
Napico cannot be considered as moot and it is most proper that the
plebiscite 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
plebiscite for the proposed barangays be conducted.
Jurisdiction over controversies involving Plebiscite Issues - Ma.
Salvacion Buac/Antonio Bautista v. Comelec/Alan Peter
Cayetano and some Intervenors 421 SCRA 92 (2004), 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 the 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 Plebiscite Board of Canvassers (PBOC) 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.
Petitioners filed with the Comelec a petition to annul the results of
the plebiscite with a prayer for revision and recount of the ballots.
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 the subject of an election protest and that the
jurisdiction to hear a complaint involving the conduct of a
plebiscite is lodged with the RTC.
Comelec 2nd division initially gave due course to the petition ruling
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.
Intervenor Cayetano, in an unverified motion, 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
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 QJ powers
not contemplated under Section 2(2), Article IX-C of the
Constitution.
On appeal, the Comelec en banc affirmed the ruling of its 2 nd
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 QJ 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 QJ functions. Hence, the
petition before the SC.
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
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.
This case assailing the regularity of the conduct of the Taguig
plebiscite does not fit the kind of a 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 and incidental power for
it to achieve the holding of honest, orderly, peaceful, free and
credible elections (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.
INITIATIVE – are lawmaking powers that belong to the people
and have been described as the “people power” features of our
Constitution (Asked in the 2000 BAR). Initiative under RA 6735
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.
REFERENDUM – power of the electorate to approve or reject a
piece of legislation through an election called for the purpose.
(Sec. 2©, R.A. 6735).
Statutory demarcation between Initiative and Referendum:
Section 2, Article XVII of the Constitution provides that
“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 3% of the
registered voters therein”.
Section 32, Article VI of the Constitution provides that
“Congress shall, as early as possible, provide for a system of
initiative and referendum and the exceptions therefrom, where the
people can directly propose and enact laws or approve or reject any
act or law or part thereof passed by Congress or local legislative
body after the registration of a petition thereof signed by at least
10% of the total number of registered voters, of which every
legislative district must be represented by at least 3% of the
registered voters thereof.”
RA 7160 or the Local Government Code of 1991 also provides
for a “local initiative” defined as the “legal process whereby the
registered voters of a local government unit may directly propose,
4
enact, or amend any ordinance. Sec. 126 thereof provides for a
“local referendum” defined as the “legal process whereby the RV
of the local government units may approve, amend or reject any
ordinance enacted by the sanggunian.”
Classes of Initiative – 1) On the Constitution; 2) On Statutes; 3)
On Local Legislation. Indirect Initiative is exercised by the people
through a proposition sent to Congress or the local legislative body
for action.
Classes of Referendum – 1) On Statutes; 2) On Local Laws.
Santiago, et. al. v. Comelec, et. al., 336 SCRA 843, the
controversy brought to the Supreme Court by way of a petition for
prohibition under Rule 65 of the Rules of Court is “the right of
the people to directly propose amendments to the Constitution
through the system of Initiative under Section 2 of Article XVII
of the 1987 Constitution”.
The Supreme Court in ruling in Santiago vs. Comelec declared RA
6735 as inadequate to implement the initiative clause on proposals
to amend the Constitution.
Atty. Jesus Delfin filed a petition with the Comelec to amend the
constitution, specifically to lift the term limits of elective officials,
by people’s initiative. Atty. Delfin asked the Comelec for an order:
(1) to fix the time and dates for signature gathering all over the
country (2) to cause the necessary publications of said Order and
the said petition in newspapers of general and local circulation and
(3) instruct the municipal election registrars in all regions in the
Philippines to assist petitioners and volunteers in establishing
signing station at the time and on the dates designated for the
purpose.
The Comelec issued an Order granting the petition. Santiago filed
this special civil action for prohibition raising among other
grounds that RA 6735 does not provide for people’s initiative to
amend the constitution considering that the same is still pending
with the Senate of which she is the author. The petition of Atty.
Delfin was not validly initiated as it failed to comply with the
signature requirement for initiating an initiative. The Comelec
never acquired jurisdiction over the petition as jurisdiction is
acquired only after its filing – the petition being the initiatory
pleading.
The SC gave due course to the Petition on the legal
premise that the Constitution recognizes only two (2) methods of
proposing amendments to the Constitution, viz (1) by Congress
upon a vote of ¾ of all its members and (2) by constitutional
convention.
The SC interpreted Sec. 2 of RA 6735 which
provides that “the power of the people under a system of initiative
and referendum to directly propose, enact, approved or reject, in
whole or in part the Constitution, laws, ordinance or resolutions
passed by any legislative body upon compliance with the
requirements of this Act, is hereby affirmed, recognized and
guaranteed.” It held that the inclusion of the word “constitution”
here is neither germane nor relevant to said action which
exclusively relates to initiative and referendum on national and
local laws, ordinances and resolution. Therefore, the people are
not accorded the power to “directly propose, enact, approved or
reject, in whole or in part the Constitution, through the system of
initiative.
The SC further declared that 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
Comelec to issue rules and regulations (QJ power) is limited only
to what is provided under –
(a) Section 2 of Article IX-C of the Constitution and
(b) by a law where subordinate legislation is authorized
and which satisfied the “completeness” and the
“sufficient standard” tests.
Raul Lambino, et. al. vs. Comelec 505 SCRA 160 (2006) the
issue on initiative to propose amendments to the 1987 Constitution
was again at issue. FACTS: Raul Lambino of Sigaw ng Bayan and
Erico Aumentado of the Union of Local Authorities of the
Philippines (ULAP) filed a petition for people’s initiative before
the Commission on Elections on August 26, 2006, after months of
gathering signatures all over the country. Lambino claimed that
the petition is backed by 6.3M registered voters. constituting at
least 12% of all registered voters, with each legislative district
represented by at least 3% of the registered voters. They further
claimed that the provincial and city Comelec officials had already
verified the 6.3M signatures
The Comelec denied the petition, reasoning that a lack of enabling
law keeps them from entertaining such petitions. It invoked the
1997 Supreme Court ruling in Santiago vs. Comelec (336 SCRA
843), where it declared RA 6735 inadequate to implement the
initiative clause on proposals to amend the Constitution. The
Comelec ruling prompted Lambino and Aumentado to bring their
case before the Supreme Court on the following issues -
(1) Whether the initiative petition of the Lambino group complied
with the provisions of Section 2, Article XVII of the Constitution.
(2)Whether the Court should revisit its ruling in Santiago vs.
Comelec declaring RA 6735 “incomplete and inadequate or
wanting in essential terms and conditions” to implement the
initiative clause to amend the Constitution.
The Supreme Court upheld the Comelec’s ruling on the petition for
people’s initiative on October 25, 2006 with a close 8-7 vote. As
ruled:
 The Lambino Group miserably failed to comply with
the basic requirement of the Constitution for the
conduct of people’s initiative. The Constitution require
that the amendment must be “directly proposed by the
people through initiative upon a petition.”

Lambino’s group failed to include the full text of the
proposed changes in the signature sheets –a fatal
omission, according to the Supreme Court ruling,
because it means a majority of the 6.3M people who
signed the signature sheets could not have known the
nature and effect of the proposed changes. For the
petition to be valid, two essential requisites must be
complied with, namely: (a) the people must author, and
thus sign, the entire proposal; no agent or representative
can sign on their behalf; and (b) as an initiative upon a
petition, the proposed amendments must be embodied
in the petition itself.
 A people’s initiative to change the Constitution applies
only to an amendment of the Constitution and not to its
revision. Only Congress or a constitutional convention
may propose revisions to the Constitution. A people’s
initiative may propose only amendments to the
Constitution.
 The SC declared that “A popular clamor, even one
backed by 6.3M signatures, cannot justify a deviation
from the specific modes prescribed in the Constitution
itself.”
The rationale for the second requisite is that the signature
requirement would be rendered meaningless if the person affixing
his signature has not first seen and understood what it is that he is
signing. Further, and more importantly, loose interpretation of the
subscription requirement can pose a significant potential for fraud.
On-compliance with the above mentioned requirement is fatal to
the initiative petition. For sure, the great majority of the 6.3M
people who signed the signature sheets did not see the full text of
the proposed changes before signing, as the proposed amendments
were not stated in the signature sheets. They were not apprised of
the nature and effect of the proposed amendments, among which
are substantial changes as follows:
1) the term limits on members of the legislature will
be lifted and thus member of the Parliament may
be re-elected indefinitely;
2) The Interim Parliament whose membership
comprised of present members of Congress can
decide when to call the parliamentary elections.
Thus, leaving them the absolute discretion to
determine their term limits.
3) That within 45 days from the ratification of
proposed changes, the interim Parliament may
further propose revision or amendments to the
Constitution.
Furthermore, a people’s initiative to change the
Constitution applies only to an amendment to the Constitution and
not revision. Article XVII of the Constitution speaks of three
modes of proposing amendments to the Constitution: a) by direct
congressional action (3/4 votes of all its members), b) through a
constitutional convention, and c) through a people’s initiative.
5
The first and second modes, as provided in Section 1 of Article
XVII, apply to both amendment and revision, but the 3rd mode
applies only to amendments. The distinction between the first
two modes and the third was intentional as shown by the
deliberations of the Constitutional Commission.
There can be no dispute that a people’s initiative can only propose
amendments to the Constitution since the Constitution itself limits
initiatives to amendments. There can be no deviation from the
constitutionally prescribed modes of revising the Constitution. A
popular clamor, even one backed by 6.3M signatures, cannot
justify a deviation from the specific modes prescribed in the
Constitution itself. The Lambino’s group proposed changes
constituted not just an amendment but a revision, because of the
change in the form of government from Presidential to
Parliamentary, and the shift from a bicameral to a unicameral
legislature.
DISTINCTION BETWEEN REVISION AND AMENDMENT.
Revision broadly implies a change that alters a basic principle in
the constitution, like altering the principle of separation of power
or the system of checks and balances. There is also revision if the
change alters the substantial entirety of the Constitution. On the
other hand, amendment broadly refers to a change that adds,
reduces, 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.
On the second pivotal issue of revisiting the ruling of the Court in
Santiago vs. Comelec, the Court held that an affirmation or
reversal of the same will not change the outcome of the case. The
Court must avoid revisiting a ruling involving the constitutionality
of a statute if the case before the Court can be resolved on some
grounds.
In the resolution on the motion for reconsideration, the Court
maintaining its 8-7 vote, denied with finality the motions for
reconsideration of its October 25, 2006 decision dismissing the
said petition to amend the 1987 Constitution through a people’s
initiative. . Ten justices however reiterated their earlier opinions
that RA 6735 is sufficient and adequate as an enabling law for
people’s initiative, effectively abandoning Santiago v. Comelec.
The Court upheld the sovereign power of the people as the highest
form of sovereignty and deserves the highest respect. It is time to
let the people’s voice be heard once again as it was 20 years ago.
And should this voice demand a change in the Constitution, the SC
should not be one to stand in its way.
Subic Bay Metropolitan Authority v. Comelec 252 SCRA 492
(1996), an action for certiorari and prohibition was brought to the
SC seeking to nullify the ruling of the Comelec and Resolution No.
2848 denying petitioner’s plea to stop the holding of a local
initiative and referendum on the proposition to recall Pambayang
Kapasyahan Blg. 10, Serye 1993 of the SB of Morong Bataan.
In this case, the Sangguniang Bayan of Morong, Bataan
on April 1993, passed Pambayang Kapasyahan Blg. 10, Serye
1993, expressing therein its absolute concurrence to join the Subic
Special Economic Zone (SSEZ) as required by Sec. 12 of RA 7227
(Bases Conversion and Development Act of 1992). On September
5, 1993, the SB submitted the Kapasyahan to the Office of the
President. On May 24, 1993, respondent Garcia, et. al. filed a
petition with the SB of Morong to annul PK Blg. 10, Serye 1993
and therein proposed for amendments to the said law. The SB acted
upon the petition and promulgated PK Blg. 18, requesting
Congress to amend certain provisions of RA 7227 and informed
respondents that the other matters in the proposed amendments
were already submitted to the Office of the President.
Not satisfied and within 30 days from submission of their petition,
respondent resorted to their power of initiative under the LGC of
1991. On June 18, 1996 Comelec issued Resolution No. 2845
adopting a calendar of activities for local referendum to annul or
repeal Kapasyahan Bldg. 10.
Petitioner SBMA seeks to nullify the Order of Comelec denying
petitioner’s plea to stop the holding of a local initiative and
referendum on the proposition to recall the Kapasyahan as it was
proceeding with a local initiative that proposes an amendment of a
national law. ISSUE:
 whether Comelec committed grave abuse
of discretion in promulgating and
implementing its Res. No. 2842 which
govern the conduct of the referendum
 proposing to annul or repeal PK Blg. 10
and
 whether the questioned local initiative
covers a subject within the powers of the
people of Morong to enact (whether such
initiative seeks the amendment of a
national law.
In this case, the SC was compelled to distinguish Initiative from
Referendum. To begin with, the process started by Garcia et. al.,
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 and so
forth. As distinguished, initiative is a process of law making by
the people themselves without the participation and against the
wishes of their elected representatives while referendum consists
merely with the electorate approving or rejecting what has been
drawn up or enacted by the legislative body by simply indicating
yes or no in the ballot.
In initiative, there is a need for the Comelec to supervise the
process closely, it’s authority therein extending not only to the
counting and canvassing of votes but also to seeing to it that
the matter or act submitted to the people is in the proper form
and language so it may be easily understood and voted upon by
the electorate. Care in this activity must be exercise that “no
petition embracing more than one subject shall be submitted to
the electorate, although two or more propositions may be
submitted in an initiative. “
As to the second issue, SBMA insists that the creation of the SSEZ
is now a fait accompli for the benefit of the entire nation and
Morong cannot unilaterally withdraw its concurrence or impose
new conditions for such concurrence as this would effectively
render nugatory the creation of the SSEZ. The SC agreed with the
contention of Garcia that the position of SBMA is premature and
conjectural because at this point the resolution is just a proposal. If
the people should reject it during the referendum, then there is
nothing to declare as illegal. A writ of prohibition cannot issue
upon a mere conjecture or possibility as courts may decide only
actual controversies and not hypothetical questions or cases.
3) RECALL – is the termination of official relationship of
a local elective public official for loss of confidence by the people
prior to the end of his term of office (Sec. 69, R.A. 7160 LGC). In
Angobung v. Comelec 269 SCRA 246 (1997), the Supreme Court
ruled that 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.
The mode of initiating recall against a public elective official is
now limited to a petition commenced only by the registered voters
in the local unit concerned. 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.
Section 70 of RA 7160 now reads as follows: “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 and supported by the registered voters in the LGU
concerned during the election in which the local official sought to
be recalled was elected subject to the following percentage
requirements:
 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 thousand: Provided
however, that in no case shall the required petitioners
be less than 45,000.
DATE OF RECALL – Upon the filing of a valid petition for
recall with the appropriate local office of the Comelec, the
6
Comelec or its duly authorized representative shall set the date of
the election or recall, which shall not be later than 30 days upon
the completion of the procedure outlined in the preceding article,
in the case of the barangay, city or municipal officials, and 45 days
in the case of provincial officials.
The official sought to be recalled shall automatically be
considered as duly registered candidate or candidates to the
pertinent positions and like other candidates, shall be entitled to be
voted upon.” (Sec. 71)
EFFECTIVITY OF RECALL – recall shall become effective
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).
LIMITATIONS ON RECALL – an elective official may be
subject of recall elections only ONCE during his term of office
exclusively on the ground of LACK OF CONFIDENCE. The
recall cannot be undertaken within one (1) year from the date of
the official’s assumption of office or within one (1) year
immediately preceding a regular election. (Sec. 74)
In Paras v. Comelec 264 SCRA 49, Paras, incumbent punong
brgy sought to bar the recall proceedings against him citing Sec. 74
(B) of RA 7160 that it was barred by the scheduled SK elections.
The SC settled the issue and held that the SK elections is not
considered a “regular local elections” for purposes of recall under
Sec. 74. 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.
REGISTRATION OF VOTERS
Article V Section 1. Suffrage may be exercised by all citizens of
the Philippines NOT otherwise disqualified by law, who are at least
18 years of age 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 in the immediately preceding the elections.
No literacy, property or other substantive requirements shall be
imposed on the exercise of suffrage.
Section 2. The Congress shall provide for a system of securing the
secrecy and sanctity of the ballot as well as a system of absentee
voting by qualified Filipinos abroad (RA 9189 OAV)
The Congress shall also design a procedure for the
disabled and illiterates to vote without the assistance of other
persons. Until then, they shall be allowed to vote under existing
laws and such rules as the Commission on Elections may
promulgate to protect the secrecy of the ballot.
RA 10366 now provides accessible Polling Places for Persons with
Disabilities (PWDS and Senior Citizens and also provides for,
among others, assistance in the accomplishment of registration
forms. The law was in line with the objective of Sec. 29 of the
“Magna Carta for Persons with Disability” (RA No. 7277) which
provides that “polling places should be made accessible to disabled
persons during national and local elections.”
The Comelec shall likewise keep an updated record of
PWDs and SC registered voters, indicating the types of disability
and the assistance they need. (Sec. 6, RA 10366). In designing the
ballot, Comelec shall ensure reasonable accommodation to PWDs
and SC to enable them to accomplish the ballots by themselves
(Sec. 10)
Comelec, in coordination with the National Council on
Disability Affairs (NCDA), the Commission on Human Rights
(CHR), and PWD and Senior Citizens organization shall organize,
design, and implement sensitivity training programs for person
performing electoral duties to familiarize them of the needs of the
PWDs and SC. (Sec. 12)
WHO MAY REGISTER (RA 8189, (An Act Providing for the
General Registration of Voters providing for a System of
Continuing Registration which took effect on June 11, 1996)
Registration of voters is a means of determining who possess the
qualifications as a voter and regulating the exercise of the right of
suffrage.
Registration does not confer the right to vote; it is but a condition
precedent to the exercise of the right.
How is Registration done – Under RA 8189, registration refers to
the ACT of accomplishing and filing of a sworn application for
registration (Voters Registration Record VRR) by a qualified voter
before the election officer of the city or municipality wherein he
resides and including the VRR in the book of RV upon approval by
the Election Registration Board (Sec. 3(a) RA 8189).
As stated in Section 2 thereof, RA 8189 was passed in order to
“systemitaize the present method of registration in order to
establish a clean, complete, permanent and updated list of voters.
To complement RA 8189 in the light of the advances in modern
technology, RA 10367, or the assailed Biometrics Law, was signed
into law in February 2013. It built on the policy considerations
behind RA 8189 as it institutionalized biometrics validation as part
of the registration process. As defined in the said law, “Biometrics
refers to a quantitative analysis that provides a positive
identification of an individual such as voice, photograph,
fingerprint signature, iris, and/or such other identifiable features.”
(Kabataan Party List, et. al. vs. Comelec (777 SCRA 574).
Procedure for Biometric Registration – The RV is required to (a)
personally appear before the Office of the EO; (b) present a
competent evidence of identity; and (c) have his photo, signature
and fingerprints recorded. It is, in effect, a manner of updating
one’s registration for those already registered under RA 8189, or a
first-time registration for new registrants. The re-registration
process is amply justified by the fact that the government is
adopting a novel technology like biometrics in order to address the
bane of electoral fraud. While registrants may be inconvenienced
by waiting in long lines or by not being accommodated on certain
days due to heavy volume of work, these are typical burdens of
voting that are remedies by bureaucratic improvements to be
implemented by the COMELEC as an administrative institution.
REGISTRATION IS EXTENDED TO: DOMESTIC AND
OVERSEAS VOTERS
FOR DOMESTIC VOTERS – GOVERNED BY RA 8189 The
Voters Registration Act
I Who may Register
Section 9 – Who may Register – All citizens of the Philippines
NOT otherwise disqualified by law who are at least 18 years of
age, 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.
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 AFP, or confinement or detention in government
institution in accordance with law, shall NOT be deemed to have
lost his original residence.
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.”
(Sec. 9 (repealed Sections 116 and 117 of the OEC). Sec. 9
clarified when the residency and age requirements should be
attained) – Salient amendments:
ILLITIERATE AND DISABLED VOTERS – Illiterates or disabled
are referred to as a persons who cannot by themselves prepare an
application for registration because of their physical disability
and/or inability to read and write. (Section 3 (e))
Section 14. Procedure for illiterate applicants (those who cannot
read and write) – 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 thumbmark or some other
customary mark and it shall be subscribed and attested by the
majority of the members of the Board.
Procedure for disabled voters – the application for registration
of a physically disabled person (ex. blind, no hands, senior
citizen, mute) may be prepared by any relative within the 4 th
civil degree of consanguinity or affinity or by the election officer
or any member of an accredited citizen’s arm using the data
supplied by the applicant.
7
NOTE: Common to both procedures, the fact of illiteracy and
disability shall be so indicated in the application.
Cases on Residence requirement:
(a) The term “residence” is synonymous with “domicile”
which imports not only intention to reside in a fixed
place, but also personal presence in that place, coupled
with conduct indicative of such intention. (Nuval V.
Guray, 52 Phil. 645 (1928).
(b) Registration of a voter in a place other than his
residence of origin is not sufficient to constitute
abandonment or loss of such residence. This finds
justification in the natural desire of every person to
return to the place of his birth. (Faypon v. Quirino 96
Phil. 294 (1954))
(c) Domicile of origin is not easily lost. To successfully
effect the change of domicile, one must demonstrate:
(1) an actual removal or an actual change of domicile,
(2) a bona fide intention of abandoning the former
place of residence and establishing a new one; and (3)
act which correspond with the purpose. (Romuladez-
Marcos v. Comelec 248 SCRA1995))
(d) While voting is not conclusive of residence, it does
give rise to a strong presumption of residence. The
fact that a party continuously voted on a particular
locality is a strong factor in assisting to determine the
status of his domicile. (Domino v. Comelec 330 SCRA
546 (1999))
(e) It is not required that a person should have a house in
order to establish his domicile. (Delos Reyes v.
Solidum, 61 Phil. 893)
Meynard Sabili v. Comelec/Florencio Librea 670 SCRA 670
(2012) – The Court have held that “absence from residence to
pursue studies or practice a profession or registration as a voter
other than the place where one is elected, does not constitute loss
of residence”. Section 117 of the OEC provides that “transfer of
residence to any other place by reason of one’s occupation,
profession employment in private and public service, educational
activities work force, the constabulary or national police force, or
confinement or detention in government institutions in accordance
with law” is not deemed as loss of residence.
The Court ruled that there is nothing wrong in an individual
changing residences so he could run for an elective post, for as
long as he is able to prove with reasonable certainty that he has
effected a change of residence for election law purposes for the
period required by law.
II Who are disqualified
Sec. 11– Disqualifications: (Section 11 of R.A. 8189 repealed Sec.
118 of the OEC)
 Any person who has been sentenced by final judgment
to suffer imprisonment for not less than one (1) year.
 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 law.
 Insane or incompetent as declared by a competent
authority.
WHEN DISABILITY REMOVED –
 Plenary pardon or amnesty – those sentenced by final
judgment. 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.
 Expiration of five (5) years after service of sentence
 Official declaration by the proper authority that the
insanity or incompetency no longer exist.
Double Registrants – Two kinds of double registrants: (1) those
registrants who are found to be registered in two (2) or more
districts/cities/municipalities, what would prevail? ….. the
latest registration shall prevail…. As this is deemed to be more
in consonance with the intent of the concerned registered votes.
Accordingly, they shall be allowed to vote only in the
district/city/municipality of their latest registration.
 This is distinguished from (2) double/multiple
registrants who are found to be registered within the same
district/city/municipality…. What would prevail?... the original
registration shall prevail over subsequent registrations. (Comelec
Res. 7893, 07 May 2007. See also Sec. 261 (y(5)) of the OEC
(Prohibited Acts) which provides “Any person who, being a
registered voter, registers anew without filing an application for
cancellation of his previous registration” shall be guilty of an
election offense).
Residency Requirement:
Romeo A. Jalosjos v. Comelec Dan Erasmo, Sr. 670 SCRA 572
(2012)
Residence – The Local Government Code requires a candidate
seeking the position of provincial governor to be a resident of the
province for at least (1) year before the election. For purposes of
the election laws, the requirement of residence is synonymous with
domicile, meaning that a person must not only intend to reside in a
particular place but must also have personal presence in such place
coupled with conduct indicative of such intention. There is no
hard and fast rule to determine a candidate’s compliance with
residency requirement since the question of residence is a question
of intention. Still, jurisprudence had laid down the following
guidelines:
(a) every person has a domicile or residence somewhere;
(b) where once established, that domicile remains until he
acquires a new one; and
(c) a person can have but one domicile at a time.
The Comelec concluded that Jalosjos has not come to settle his
domicile in Ipil since he was merely been staying at his brother’s
house. But the SC ruled that this circumstance alone cannot
support such conclusion. Indeed, the Court has repeatedly held
that a candidate is not required to have a house in a community to
establish his residence or domicile in a particular place. It is
sufficient that he should live there even if it be in a rented house or
in the house of a friend or relative. To insist that the candidate own
the house where he lives would make property a qualification for
public office. What matters is that Jalosjos has proved two
things: actual physical presence in Ipil and an intention of making
it his domicile.
Mitra vs. Commission on Elections, Antonio Gonzales and
Orlando Balbon, Jr. 622 SCRA 744 (July 2010). In this case,
following the conversion of Puerto Princesa (Mitra’s domicile of
origin) from a component city to a highly urbanized city whose
residents can no longer vote for provincial officials, Mitra
abandoned his domicile in Puerto Princesa and acquired a new one
in Aborlan which is within the LGU where he intended to run.
Mitra bought the old Maligaya Feedmill and used the second floor
as his residence.
In considering the residency issue, the Comelec
disqualified Mitra for the reason that Mitra’s residence is not the
residence contemplated by law considering that he did not renovate
or improve the structure. The SC held that the dwelling where a
person permanently intends to return to and to remain – his or her
capacity or inclination to decorate the place, or the lack of it, IS
IMMATERIAL. Comelec gravely abused its discretion when it
determined the fitness of a dwelling as a person’s residence
based solely on very personal and subjective assessment
standards when the law is replete with standards that can be
used. Comelec used wrong considerations in arriving at the
conclusion that Mitra’s residence is not the residence contemplated
by law.
Assitio vs. Aguirre 619 SCRA 518 – Residence as used in the law
prescribing the qualifications for suffrage and for elective office, is
DOCTRINALLY SETTLED to mean ‘domicile”, importing not
only an intention to reside in a fixed place but also personal
presence in that place, coupled with conduct indicative of such
intention inferable from a person’s acts, utterances and activities.
Domicile is not easily lost. To successfully effect a transfer, one
must demonstrate: (1) an actual removal or change of domicile; (2)
bonafide intention of abandoning the former place of residence and
establishing a new one; and (3) acts which correspond to said
purpose. Same ruling in earlier case of Romualdez-Marcos v.
Comelec, 248 SCRA 300. Requisites when new domicile is
acquired by choice.
HOW TO REGISTER
Section 8– System of Continuing Registration of Voters/Creation
of Election Registration Boards
 A qualified voter personally files an application for
registration DAILY with the office of the election
8
officer during regular office hours. The ERB are
authorized to act on all applications for registration .
LIMITATION: No registration shall be conducted during the
period starting 120 days before a regular elections and 90 days
before a special elections.
Sec. 15 – Election Registration Board – There shall be in each
city and municipality as many as ERB’s as there are election
officers therein.
Composition – Election Officer (EO) as chairman and as
members, the public school official most senior in rank and the
local civil registrar (LCR), or in his absence, the city or municipal
treasurer (MT).
In case of disqualification of the EO, the Commission
shall designate as acting EO who shall serve as chairman of the
ERB. In cases of the non-availability of the LCR or the MT,
Comelec shall designate any other appointive civil service official
from the same locality as substitute.
Restrictions to appointment – No member of the board shall be
related to each other or to any incumbent city or municipal elective
official within the 4th civil degree of consanguinity or affinity. If in
succeeding elections, any of the newly elected city or municipal
officials is related to a member of the board within the same
degree, such member is automatically disqualified in order to
preserve the integrity of the ERB.
Every registered party and such organizations as may
be authorized by the Comelec shall be entitled to a watcher in
every registration board.
Sec. 17 – Procedure for hearing of applications.
 Date of hearing posted in the city or municipal bulletin
board and EO office at least 1 week before date of
hearing
 If objected to, EO shall receive evidence. Physical
presence of applicant in this case is mandatory to
rebut evidence presented in opposition thereto
 If no objection to application, physical appearance not
required and will be duly informed in writing
 Applications for registration shall be heard and
processed on a quarterly basis. Board shall convene on
the 3rd day of Monday of April, July, October and
January of every calendar year except in an election
year to conform with the 120 days prohibitive period
before election day.
Section. 21 – Publication of Action on Application for Registration
SECTION 12. Change of Residence to another City or
Municipality – Any registered voter who has transferred
residence to another city or municipality may apply with the EO of
his new residence for the transfer of his registration records. The
application for transfer of registration shall be subject to the
requirements of notice and hearing and the approval of the ERB in
accordance with this Act. Upon approval of the application for
transfer, and after notice of such approval to the EO of the former
residence of the voter, said EO shall transmit by registered mail the
voter’s registration record to the EO of the voter’s new residence.
Section 13. Change of Address in the Same City or
Municipality –Any voter who has changed his address in the same
city or municipality shall immediately notify the EO in writing. If
the change of address involves a change in precinct, the Board
shall transfer his registration record to the precinct book of voters
of his new precinct and notify the voter of his new precinct. All
changes of address shall be reported to the office of the provincial
election supervisor and the Commission in Manila.
Sec. 27 – DEACTIVATION – is a process wherein the registration
record of a voter is removed by the ERB 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 cause for deactivation which are as follows:
 Those who are disqualified by virtue of a final
judgment, insane and incompetent persons as
officially declared.
 Any person who failed to vote in the two (2)
successive preceding regular elections as shown by his
voting records.
 Any person whose registration has been ordered
excluded by the court.
 Any person who has lost his Filipino citizenship.
For purposes of the above – the Clerks of Court of the
MTC, MTCC, RTC and SB shall furnish the EO 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 addresses.
For those who lost their citizenship, insanity and
incompetency, the Comelec may request a certified list of such
persons from the government agencies concerned.
Sec. 28 – REACTIVATION – 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.
PERIOD TO FILE – 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 include the same in the corresponding precinct
book of voters.
REQUIREMENT: Local heads or representatives of political
parties shall be properly notified of the approved applications.
Sec. 29 – CANCELLATION – 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.
PETITION FOR INCLUSION OR EXCLUSION. Remedies
of persons whose application for reactivation, inclusion or
correction has been disapproved or those who intend to exclude a
voter from the list of voters.
Panlaqui v. Comelec 613 SCRA 573 – Voters’ inclusion/exclusion
proceedings essentially involve the issue of whether a voter shall
be included in or excluded from the list of voters based on the
qualifications required by law and the facts presented to show
possession of these qualifications. As distinguished from the
procedure in certificate of candidacies (petition to deny due course
or cancel a certificate of candidacy) on the other hand, the
denial/cancellation proceedings involve the issue of whether there
is a false representation of a material fact (Sec. 78).
Sec. 33 JURISDICTION – The Municipal and Metropolitan Trial
Courts shall have original jurisdiction over all cases of inclusion
and exclusion of voters in their respective cities or municipalities.
(By express provision of Article IX-C, Section 2 (3) of the
Constitution, the Comelec shall decide all questions affecting
elections, except the right to vote. This question is a justiciable
issue which finds redress in the judiciary. (Pungutan v. Comelec
43 SCRA 1 (1972).
Again – in Panlaqui vs. Comelec 613 SCRA 573 - It is not
within the province of the RTC in a voter’s inclusion/exclusion
proceedings to take cognizance of and determine the presence
of a false representation of a material fact. It has no jurisdiction
to try the issues of whether the misrepresentation relates to
material fact and whether there was an intention to deceive the
electorate in terms of one’s qualifications for public office. The
finding that Velasco was not qualified to vote due to lack of
residency requirement does not translate into a finding of a
deliberate attempt to mislead, misinform or hide a fact which
would otherwise render him ineligible.
Canicosa v. Comelec 282 SCRA 512 (1997). 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 the Comelec to
rule upon. The determination of whether one has the right to vote
is a justiciable issue properly cognizable by our regular courts.
WHERE TO APPEAL – Decisions of the Municipal or
Metropolitan Trial Courts may be appealed by the aggrieved party
to the Regional Trial Court within five (5) from receipt of notice
thereof. Otherwise, said decision shall become final and
executory. Regional Trial Court shall decide the appeal within ten
(10) days from the time it is received and the Regional Trial Court
decision shall immediately become final and executory. No
motion for reconsideration shall be entertained.
Domino v. Comelec 310 SCRA 546 (1999). Except for the right to
remain in the list of voters or for being excluded thereform for the
particular election in relation to which the proceedings had been
held, a decision in an exclusion proceeding, even if final and
unappealable does not acquire the nature of res judicata. Thus,
a decision in an exclusion proceeding would neither be
conclusive on the voters political status, nor bar subsequent
proceedings on his right to be registered as a voter in any other
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election. (Disqualified now for lack of residency…is not res
judicata)
Sec. 34 – Petition for Inclusion of Voters in the list – WHO
MAY FILE: any person whose application for registration –
 Has been disapproved by the Board; or
 Whose name has been stricken out from the list;
 Whose name was not included in the precinct list of
voters
 Who has been included therein with a wrong or
misspelled name (after the Board disapproves its
application for reinstatement or correction of name)
may file with the court.
PERIOD 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 it’s 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 BV and indicate in
the application for registration the date of the order of inclusion
and the court which issued the same.
Section 35 – Petition for Exclusion of Voters from the list –
WHO MAY FILE: any registered voter, representative of a
political party or the Election Officer.
PERIOD 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 BV, enter the
order of exclusion therein.
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 as the purpose of securing the
voters substantive right to be included in the list of voters.
The bone of contention of petitioners in this case is the Petition of
Akbayan with the Comelec praying for a 2-day special registration
of new voters for the May 14, 2001. Akbayan postured that there
are around 5M Filipinos of voting age who failed to to register
before the registration deadline and this would undermine their
constitution right to vote and disenfranchise them. Comelec
denied the petition on the grounds of operational impossibility.
The SC ruled that the right of suffrage is not absolute, as in the
enjoyment of all other rights, it 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 maximum requirements set by the Constitution
under Section 1, Article V, the act of registration being an
indispensable precondition and essential to the right of suffrage
and election process. Referring to Section 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 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
voter’s list and that of the entire election.
ABSENTEE VOTING
Local Absentee Voting – In local absentee voting, public officials
and employees, in the performance of their election duties,
stationed in places other than the place where they are registered
voters of (e.g. members of the PNP, AFP, offices of the Comelec,
school teachers, among others) are allowed to vote in their
respective place of work (Sec. 12, RA 7166).
RA No.10380, otherwise known as the “Local Absentee Voting for
Media Act”, now allow media practitioners to vote on specified
days earlier than Election Day so that that even if on Election Day,
they are assigned to cover election events away from their place of
registration as voters, they would nonetheless have the opportunity
to cast their votes.
Limitation: Those entitled to avail of local absentee voting shall
only be allowed to vote for President, VP, Senators, and Party-List
Representative
Grounds for disapproval of the Application for Local Absentee
Voting
1) The applicant is not a RV or his registration records
have been deactivated.
2) It was filed out of time;
3) It was not sworn to or otherwise not under oath by any
person authorized to administer oath;
4) It was only photocopied/faxed;
5) The Certification portion of the application form is not
duly accomplished.
OVERSEAS ABSENTEE VOTING (OAV) – RA 9189 Absentee
Voters Act of 2003
Under RA 9189, Filipino citizens who are overseas workers,
immigrants or permanent residents in other countries may vote in
Philippine national elections when they are away from the country
on the day of the elections; Prior to the amendment, it further
provided that in the case of immigrants or permanent residents,
they are required to file a sworn statement that they will resume
actual physical permanent residence within three (3) years from
approval of their registration. (Sec. 5(d))
A. Scope of OAV – Definition: Absentee voters refers to
the process by which qualified citizens of the
Philippines abroad exercise their right to vote. (Sec.
3(a))
B. Coverage – All citizens of the Philippines abroad
who are not disqualified by law, at least 18 years of
age on election day, may vote for President, VP,
Senators and Party List Representatives (Sec. 4)
Section 5 – Disqualification:
(a) Those who have lost their Filipino citizenship in
accordance with Philippine laws;
(b) Those who have expressly renounced their
Philippine citizenship and who have pledged
allegiance to a foreign country;
(c) Those who have committed and are convicted by
a final judgment by a court or tribunal of an
offense punishable by imprisonment of not less
than one (1) year, including those who have
committed and been found guilty of Disloyalty as
defined under Article 137 of the Revised Penal
Code, such as disability not having removed by
plenary pardon or amnesty; Provided, however,
That any person disqualified to vote upon the
expiration of five (5) years after service of
sentence; Provided further, That the Commission
may take cognizance of final judgments issued by
foreign courts or tribunals only on the basis of
reciprocity and subject to the formalities and
processes prescribed by the Rules of Court on
execution of judgments;
(d) An immigrant or a permanent resident who is
recognized as such in the host country, unless
he/she executes, upon registration, an affidavit
prepared for the purpose by the Commission
declaring that he/she shall resume actual physical
permanent residence in the Philippines not later
than three (3) years from approval of his/her
registration under this Act.
a. Such affidavit shall also state that
he/she has not applied for citizenship
in another country.
b. Failure to return shall be caused for the
removal of the name of the immigrant
or permanent resident from the
National Registry of Absentee Voters
and his/her permanent disqualification
to vote in absentia;
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(e) Any citizen of the Philippines abroad previously
declared insane or incompetent by competent
authority in the Philippines or abroad, as verified
by the Philippine embassies, consulates or
foreign service establishments concerned, unless
such competent authority subsequently certifies
that such person is no longer insane or
incompetent.
Macalintal v. Comelec 405 SCRA 614 (2003) – The execution of
the affidavit itself is not the enabling or enfranchising act. The
affidavit required in Section 5(d) is not only proof of the intention
of the immigrant or permanent resident to go back and resume
residency in the Philippines, but more significantly, it serves as an
explicit expression that he had not in fact abandoned his domicile
of origin. The affidavit is required of immigrants and
permanent residents abroad because by their status in the host
countries, they are presumed to have relinquished their intent
to return to this country; thus, without the affidavit, the
presumption of abandonment of Philippine domicile shall
remain.
3. Casting of Ballots in OAV – The overseas voter
shall cast his ballot within 30 days before election day or 60 days
before election day in the case of seafarers. (Sec. 16.3)
4. Counting of Ballots of OAV – a) Only ballots cast
and mailed ballots received by embassies, consulates and other
foreign establishments before the closing of voting on election day
shall be counted (Sec. 16.7 and Sec. 18.3).
b) The counting shall be conducted on site and shall be
synchronized with the start of counting in the Philippines (Sec.
18.1).
c. The Special Board of Election Inspectors (SBEI)
shall composed of a chairman and two (2) members
 The ambassador, consul general
or career public officer
designated by the Comelec shall
be the chairman.
 In the absence of government
officers, two Filipino citizens
qualified to vote under this Acts
shall be deputized as members
(Sec. 18.3)
 Immediately after the counting,
the SBEI shall transmit by
facsimile or electronic mail the
result to the Comelec and the
accredited major political parties.
5. Canvassing of OAV – A Special Board of
Canvassers (SBOC) composed of a lawyer preferably
of the Comelec as chairman, a senior career officers
from any government agency maintaining a post abroad
and, in the absence of another government officer, a
citizen of the Philippines qualified to vote under this
Act, shall be constituted to canvass the election returns.
The SBOC shall transmit by facsimile,
electronic mail or any other safe and reliable means of
transmission, the certificate of canvass and the
statements of votes to the Comelec and the major
accredited parties.
The certificates of canvass and the
statements of votes shall be the primary basis for the
national canvass. (Sec. 18.4)
Overseas Voting Act of 2013 – The President on May 27, 2013
signed into law RA 10590, OAV 2013, amending the Overseas
Voting Act of 2003. With the passage of the law, Filipino
immigrants abroad will no longer need to execute an affidavit
stating that they will return to the Philippines within 3 years before
they are allowed in absentia.
In the landmark case of Nicolas-Lewis vs. Comelec, dual citizens
were refused by Comelec to register and vote in the 2004
Philippine elections, the Supreme Court ruled in 2006 that “there is
no provision in the dual citizenship law, RA 9225 (Citizenship
Retention and Reacquisition Act of 2003 – requiring duals to
actually establish residence and physically stay in the Philippines
first before they can exercise their right to vote.”
The ruling established a precedent that dual citizens can register
and vote without establishing residence in the Philippines. A
provision in the amended law is inserted to emphasize that dual
citizens who reacquired or retained their Philippine citizenship
under RA 9225 can exercise their right of suffrage.

The amended law also mandates the creation of the Resident
Election Registration Boards (RERB). The specific provision is a
new insertion institutionalizing the overseas voting system by
creating an office within the Comelec exclusively for overseas
voting.
The amendments also empowers the Comelec to attain the most
effective and innovative way of using advance technology in
enfranchising Filipinos overseas without compromising the
secrecy and sanctity of the electoral process.
Loida Nicolas-Lewis, et. al. vs. Comelec G.R. No. 162759,
August 6, 2006. - Petitioners are dual citizens having retained or
reacquired Philippine Citizenship under RA 9225 or the
Citizenship Retention and Reacquisition Act of 2003. As such,
they sought registration and certification as overseas absentee
voters under RA 9189 or the Overseas Absentee Voting Act of
2003, in order to vote in the May 2004 elections. However, the
Philippine embassy in the US advised them that per Comelec letter
dated September 23, 2003, they have yet no residence requirement
as prescribed by the Constitution. Petitioners sought a clarification
from the Comelec which thereafter, expressed the opinion that
dual citizens under RA 9225 cannot exercise the right of
suffrage under the Overseas Absentee Voting Law because said
law was not enacted for them, hence, they are considered
regular voters who have to meet requirements of residency,
among others.
ISSUE: Whether or not petitioners and others who might have
meanwhile retained and/or reacquired Philippine citizenship
pursuant to RA 9225 may vote as absentee voter under RA 9189.
HELD: Section 1 of Article V of the Philippine Constitution
prescribed residency requirement as a general eligibility factor
for the right to vote. On the other hand, Section 2 thereof,
authorizes congress to devise a system wherein an absentee may
vote, implying that a non-resident may, as an exception to the
residency prescription in the preceding section, be allowed to vote.
There is no provision in the dual citizenship law (RA 9225),
requiring “duals” to actually establish residence and physically
stay in the Philippines first before they can exercise their right to
vote. On the contrary, RA 9225, in implicit acknowledgement that
“duals” are most likely non-residents, grants under Section 5(1)
the same right of suffrage as granted to an absentee voter under RA
9189 which aims to enfranchise as much as possible all overseas
Filipinos, who, save for the residency requirement exacted of an
ordinary conditions, are qualified to vote as ruled in Makalintal
vs. Comelec 405 SCRA 614.
POLITICAL PARTIES, PARTY LIST AND 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. HOW? 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) is conferred juridical personality for
election related purposes (2) public is informed of the party’s
existence and ideals (3) it identifies the party and its officers for
purposes of regulation by the Comelec. For purposes of the
electoral process, an organization need not be a political party.
Limitations on Registration –
 It is a religious sect or denomination or association,
organized for religious purposes. Registration of
religious sects are prohibited for the purpose of the
electoral process which is made in the spirit of
separation of church and state and intended to
11
prevent churches from wielding political power.
Does not extend to organizations with religious
affiliations or to political parties which derive their
principles from religious beliefs.
 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 (Sec. 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.
 © 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.
Jurisdiction of Comelec over Inter-Party Disputes/Power to
Register Political Parties
Samson Alcantara, et. al. vs. Comelec 696 SCRA 547 (2013) –
Under the Constitution, the Comelec is empowered to register
political parties. In the exercise of its power to register political
parties, the Comelec necessarily possesses the power to pass upon
the question of who, among the legitimate officers of the part-list
group, are entitled to exercise the right and privileges granted to a
party-list group under the law. The Comelec’s jurisdiction on this
point is well-settled and is not here disputed.
Luis LokinJr./Teresita Planas v. Comelec/CIBAC 674 SCRA
538 (2012)
In Atienza v. Comelec (612 SCRA 961 (2010), it was expressly
settled that the Comelec possessed the authority to resolve intra-
party disputes as a necessary tributary of its constitutionally
mandated power to enforce election laws and register political
parties. The Court, therein cited Kalaw v. Comelec and Palmares
v. Comelec which uniformly upheld the Comelec’s jurisdiction
over intra-party disputes: As ruled in Kalaw v. Comelec, the
Comelec’s powers and functions under Section 2, Article IX-C of
the Constitution, “include the ascertainment of the identity of the
political party and its legitimate officers responsible for the acts.”
The Court also declared in another case that the Comelec’s power
to register political parties necessarily involved the determination
of the persons who must act on its behalf. Thus, the Comelec may
resolve an intra-party leadership dispute, in a proper case
brought before it, as an incident of its power to register
political parties.
In Lico vs. Comelec 771 SCRA 596 (2015) – the pivotal issue
submitted with the SC of the jurisdiction of the Comelec over the
expulsion of a sitting party-list representative from the HR, on one
hand and from his party-list organization on the other. The case
involves two rival factions of the same party-list organization
Ating Koop headed by Atty. Lico who represents the organization
in the HR and the other group by Amparo Rimas (respondents –
Rimas Group. Based on the Constitution and By laws, its highest
policy making body is the National Convention. The Central
Committee takes over when the National Convention is not in
session. In the 2010 elections Ating Koop earned a seat in the HR
and Lico took his oath of office and assumed office.
A term sharing agreement was signed by the nominees
where Lico was to serve as party rep for the 1 st year of the 3-year
tem. In a subsequent convention which was controlled by the
Rimas group, Atty. Lico was resolved to be expelled for certain
acts in violation of its rules and regulations. It was filed with
Comelec which upheld the validity of the expulsion with a
declaration that to the Rimas group. Comelec made reference to
the Lokin case where its said that when the resolution of an intra-
party controversy is necessary or incidental to the performance of
the constitutionally-granted functions of the Comelec, it can step in
and exercise jurisdiction over the intra-party matter. Hence, the SC
the argument of Lico that Comelec has no jurisdiction. However,
the Lokin involved nominees and not incumbent members of
Congress. Hence, Comelec no longer has jurisdiction.
As regards the issue on which group legitimately
represents Ating Koop (the elections held in Cebu in a meeting by
Lico’s group and the meeting by the Rimas group in Paranaque)
were Comelec recognized the Rimas group, the SC ruled that
Comelec committed grave abuse of discretion since the
amendments to the Constitution and By laws of Ating Koop were
not registered with the Comelec. Neither elections were valid.
Nature of a Party-List Organization: A party-list organization owes
it existence to the State and the latter’s approval must be obtained
through its agent, the Comelec. The SC made reference to its
ruling in Dayao V. Comelec (689 SCRA 412), where it declared
that it is the State, acting through the Comelec, that breathes life to
a party-list organization. The State, through the Comelec is a party
to the principal contract entered into by the party-list organization
and its members – the Constitution and By-Laws- such that any
amendment to these contracts would constitute a novation
requiring the consent of all the parties involved. Hence, amended
to the bylaws of the party list organization should become effective
only upon approval by the Comelec. (similar to the requirement of
filing the amended bylaws and subsequent conformity of the SEC
under the corporation law. (this will be cross referenced to the case
of Reye vs. Comelec in 708 SCRA 197 in a Petition to Deny Due
Course a Certificate of Candidacy under Section 78 of the OEC).
Liberal Party vs. Commission on Elections 620 SCRA 393
(May 6, 2010), the SC distinguished REGISTRATION from
ACCREDITATION of a political party. The root of this petition
before the SC is the Nationalista Party-Nationalista Party Coalition
(NP-NPC) petition before the COMELEC for registration as a
coalition and accreditation as the dominant minority party. The
Comelec En Banc approved the registration of NP-NPC as a
coalition, but Comelec did NOT rule on the accreditation
aspect. Hence, the Petition before the SC that Comelec gravely
abused its discretion. The SC ruled that the registration of a
coalition and the accreditation of a dominant minority party
are two separate matters that are substantively distinct from
each other.
 Section 2(5), Article IX-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 (means Special Proceedings (DM) case. This
was the manner the NP-NPC was docketed.
 Registration of political parties is a special
proceeding assigned to a Division for handling under
the CRP. No similar clear cut rules 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.
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 proceedings. 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 Edgardo J. Angara v. Comelec, et. al. 423 SCRA
665, (the Comelec misapplied equity in this case). LDP informed
the Comelec by way of Manifestation that only the Party Chairman
or his authorized representative may endorse the COC of the
party’s official candidates; that Rep. Butch Aquino was on
“indefinite force leave” and in the meantime Ambassador Enrique
Zaldivar was designated 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
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order requiring the parties to file verified petition. Pending
resolution, a Certificate of Nomination of Sen. Panfilo Lacson as
LDP candidate for President was filed with the Comelec which
was signed by Rep. Aquino as LDP Secretary General
Comelec issued a Resolution granting the petition with
LEGAL EQUITY for both Petitioner and Oppositor (Angara Wind
and Aquino Wing). ISSUE: Whether or not Comelec gravely
abused its discretion in issuing the subject Resolution. RULING –
the only issue is simply “Who as between the Party Chairman
and the Secretary General has the authority to sign certificates
of candidacy of the official candidates of the party. Yes
Comelec acted with grave abuse of discretion. While it has
jurisdiction to rule upon questions of party identity and leadership
as an incident to its enforcement powers. It well within its
competence to inquire into which party officer has authority to sign
and endorse certificate of candidacy of party’s 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. It chose not to because of its
irrational fear of treading, as Aquino contends, on “unchartered”
territories but which have long been chartered by jurisprudence.
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.
Agapay ng Indigenous Peoples Rights Alliance (A-IPRA) v.
Comelec 696 SCRA 563 – the Supreme Court reiterated its ruling
in Laban that “the ascertainment of the identity of a political party
and its legitimate officers is a matter that is well within its
authority. The source of this authority is not other than the
fundamental law itself, which vests upon the Comelec the power
and function to enforce and administer all laws and regulations
relative to the conduct of election.”
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
R.A. 7941, otherwise known as An Act Providing for the Election
of Party-List Representatives through the Part-List System. The
party-list system is a mechanism of the proportional representation
in the election of representatives to the HR 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. (Sec. 2)
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 religious sector
(Sec. 11 and Art. V, Sec. 5(2) 1987 Constitution)
NOTE: The party-list system is composed of three (3) different
groups: (1) national parties or organizations; (2) regional parties or
organizations; and (3) sectoral parties or organization. National
and regional parties or organization are different from sectoral
parties or organizations. The former need not be organized along
sectoral lines and not represent any particular sector nor should
they be marginalized and underrepresented.
Atong Paglaum, Inc. vs. Comelec G.R. Nos. 694 SCRA 477
(2013), the Supreme Court ruled – “Sec. 5(1), Art. VI of the
Constitution is crystal clear that there shall be “a party-list system
of registered national, regional and sectoral parties or organization.
“The commas after the words national, and regional, separate
national and regional parties from sectoral parties. Had the
framers of the 1987 Constitution intended national and regional
parties to be at the same time sectoral, they would have stated
“national and regional sectoral parties.” They did not, precisely
because it was never their intention to make the party-list system
exclusively sectoral.
 What the framers intended, and what they expressly
wrote in Section 5(1), could not be any clearer: the party-list
system is composed of 3-different groups, and the sectoral parties
belong to only one of the 3 groups.”
In this case, the Court laid down new parameters to be
observed by the Comelec in screening parties, organizations or
associations seeking registration and/or accreditation under the
party-list system, viz:
1. Three different groups may participate in the party list
system: (1) national parties, (2) regional parties or
organizations, and (3) sectoral parties or organizations.
2. National parties or organizations and regional parties or
organizations do not need to organize along sectoral
lines and do not need to represent any “marginalized
and underrepresented” sector.
3. Political parties can participate in partly-list elections
provided they register under the party-list system and
do not field candidates in legislative district elections. A
political party, whether major or not, that field
candidates in legislative district elections can
participate in party-list elections only through its
sectoral wing that can separately register under the
party-list system. The sectoral wing is by itself an
independent sectoral party, and is linked to a political
party through a coalition.
4. Sectoral parties or organizations may either be
“marginalized and underrepresented” or lacking in
“well-defined political constituencies.” It is enough
that their principal advocacy pertains to the special
interests and concerns in their sector. The sectors that
are “marginalized and underrepresented” include labor,
peasant, fisherfolk, urban poor, indigenous cultural
communities, handicapped, veterans, and overseas
workers. The sectors that lack “well-defined political
constituencies” include professionals, the elderly,
women and the youth.
5. A majority of the members of the sectoral parties or
organization that represent the “marginalized and
underrepresented” must belong to the “M and U” sector
they represent. Similarly, a majority of the members of
sectoral parties or organization that lack “well-defined
constituencies” must belong to the sector they
represent. The nominees of sectoral parties or
organizations that represent the “M and U” or that
represent those who lack “well-defined constituencies”,
either must belong to their respective sectors, or must
have a track record or advocacy for their respective
sectors. The nominees of national and regional parties
or organizations must be bona fide members of such
parties or organizations.
6. National, regional and sectoral parties or organizations
shall not be disqualified if some of their nominees are
disqualified, provided that they have at least one
nominee who remains qualified.
COCOFED v. Commission on Elections 703 SCRA 165 –
Section 4 and 5 of RA 7941 distinguished. Section 4 of RA
7941, a party-list group already registered “need not register anew”
for purposes of every subsequent election, but only needs to file a
manifestation of intent to participate with the Comelec. Section 5
on the other hand provides, that an applicant for registration has to
file with the Comelec, not later than 90 days before the election, a
verified petition stating its desire to participate in the party-list
system as a national, regional or sectoral party or organization or a
coalition of such parties or organization. The applicant is required
to submit its constitution, by-laws, platform of government, list of
officers, coalition agreement and other relevant information as the
Comelec may required. Aside from these, the law requires the
publication of the applicant’s petition in at least 2 national
newspapers of general circulation. The Comelec then resolves the
petition, determining whether the applicant has complied with all
the necessary requirements.
Abang Lingkod Party-List (Abang Lingkod) vs. Commission
on Elections 708 SCRA 133 (2013). In this case following the
guidelines set forth in the Atong Paglaum case, the Court
remanded to the Comelec the cases of previously registered party-
list groups, including that of Abang Lingkod, to determine whether
they are qualified under the party-list system pursuant to the new
parameters laid down by the Court, and in the affirmative, be
allowed to participate in the May 2013 party-list elections.
Fact of the case show that Abang Lingkod is a sectoral
organization that presents the interests of peasant farmers and
fisherfolks, and was registered under the party-list system on
13
December 22, 2009. It participated in the May 2010 elections, but
failed to obtain the number of votes needed for a seat in the HR.
On May 31, 2012, AL manifested before the Comelec its intent to
participate in the May 2013 elections.
On August 2012, Comelec issued Resolution No. 9513 that
required previously register PLG that have filed their respective
Manifestations of Intent, to undergo summary evidentiary hearing
for purposes of determining their continuing compliance with the
requirements under RA 7941 and the guidelines set forth in Ang
Bagong Bayani-OFW Labor Party v. Comelec case. Comelec
cancelled the registration of Abang Lingkod pointing out that it
failed to establish its TRACK RECORD in uplifting the cause of
the M and U, that it merely offered photographs of some alleged
activities it conducted after the May 2010 elections, some of the
photographs were edited and superimposed to make it appear that
AL participated in the activities which constitutes
untruthful/unlawful statements in its petition that can serve as
ground for the cancellation of its registration. Further Comelec
opined that AL failed to show that its nominees are themselves M
and U or that they have been involved in activities aimed at
improving the plight of the M and U sectors it claims to represent.
Among the issues raised is the insistence of Comelec in
requiring party-list groups to present evidence showing that they
have a track record in representing the M and U. The Court held
that in Atong Paglaum, there is no mention that sectoral
organizations intending to participate in the PL elections are still
required to present a track record. It is sufficient that the ideals
represented by the sectoral organizations are geared towards the
cause of the sector/s which they represent. Since the track record
is no longer a requirement, a group’s misrepresentation as to it
track record cannot be used as a ground to deny or cancel its
registration – it is no longer material to its qualification under the
PLS.
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 2 nd 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.
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
Lokin’s 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, Lokin’s 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.
© 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.
Cocofed Case – As early as February 8, 2012, Comelec had
informed, through its Resolution No. 9359, all registered parties
who wished to participate in the May 2013 party-list elections that
they shall file with the Comelec a Manifestation of Intent to
Participate in the party list election together with its list of at least
5 nominees, no later than May 31, 2012. Under Sec. 6(5) of RA
7941, violation of or failure to comply with laws, rules and
regulations relating to elections is a ground for the cancellation of
registration. Cocofed failed to submit a list of 5 nominees
(submitted only 2 nominees) despite ample opportunity to do so
before the elections, which is a violation imputable to the party
under said provision.
Pursuant to Section 8 of RA 7941, the Court cannot
leave to the party the discretion to determine the number of
nominees it would submit. The submission of the list is a statutory
requirement for the registration of party-list groups and the
submission of this list is part of a registered party’s continuing
compliance with the law to maintain its registration.
A party-list group’s previous registration with the
Comelec confers no vested right to the maintenance of its
registration. In order to maintain a party in a continuing
14
compliance status, the party must prove not only its continued
possession of the requisite qualifications but, equally, must show
its compliance with the basic requirements of the law.
Alliance for Nationalism and Democracy (ANAD) v. Comelec
705 SCRA 340 (2013) – the Supreme Court reiterated. .
compliance with Section 8 of RA 7941 is essential as the said
provision is a safeguard against arbitrariness. Section 8 rids a
party-list organization of the prerogative to substitute and replace
its nominees, or even to switch the order of the nominees, after
submission of the list to Comelec.
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 the party-list but upheld its jurisdiction over nominees who
both filed a 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 two kinds. . .1)
those who shall be elected from legislative districts and 2) “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 garner 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 be 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.
Philippine Guardians Brotherhood, Inc. v. Comelec 646 SCRA
63 (2011)
Comelec removed PGBT in the list of qualified parties vying
for a seat under the party-list system of representation in
violation of the status quo order of the Supreme Court. An
equally important aspect of a democratic electoral exercise is the
right of free choice of the electorates on who shall govern them –
the party-list system affords them this choice, as it gives the
marginalized and underrepresented sectors the opportunity to
participate in governance. Comelec was cited for contempt by the
Court.
Effect of removal by Comelec of PGBI in the list: As it was the
Comelec itself which prevented PGBI from participating in the 10
May 2010 party-list elections when it deleted PGBI, with grave
abuse of discretion, from the list of accredited party-list groups or
organizations and, thereafter, refused to return it to the list despite
the Court’s directive, PGBI should, at the very least, be deemed to
have participated in the 10 May 2010
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 rep 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 CIBAC’s 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 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 Villanueva’s 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 rep who attains the age of 30 during his term
shall be allowed to continue in office until the expiration of his
term.
15
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 HRET’s ratiocination that the
provision did not apply to Villanueva’s shift of affiliation from
CIBAC’s 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 1 st
nominee of CIBAC, whose victory was later upheld, is NO
moment. A party-list org’s 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
organization had no substantial membership. Ladlad in 2009 again
filed a petition for registration which was dismissed by Comelec
on moral grounds (Bible and Koran).
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 Constitution provides in
Sec. 5, Art. III that “No law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof.”
At bottom, what our non-establishment clause calls for is
“government neutrality in religious matters.” Clearly,
“governmental reliance on religious justification is inconsistent
with this policy of neutrality.” Hence, the Court finds that it was
grave violation of the non-establishment clause for the Comelec to
utilize the Bible and the Koran to justify the exclusion of ang
Ladlad.
In sum, 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 four unique parameters of the Filipino Party-list
System which are as follows –
 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;
 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;
 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;
 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 May11, 1998 national elections
which is the first election for party-list representation, the Comelec
en banc proclaimed 14 parties and organizations 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
PAG-ASA files 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 to intervene 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: Sec. 5(2) of Article VI which states that the
sectoral representation shall constitute the 20% 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.
The 8-point guidelines for screening party-list participants
In Bagong Bayani Labor Party v. Comelec 359
SCRA 698 (2001) (also reiterated the ruling in Veterans), 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
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.”
In remanding the case to Comelec the SC laid down the
following guidelines –
 First, the PP, sector or organization must represent
the marginalized and underrepresented groups
identified in Section 5 of 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.
 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 M and U to be elected to the HR.
 Third, religious sector may not be represented in 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.”
 Fourth, it must not be disqualified under the
ground enumerated under Section 6 of RA 7941
(not a religious sect or denomination or association
organized for religious purposes, advocates violence
or unlawful means to seek its goal; a foreign party or
organization; receives support from any foreign
government, fails to comply with laws rules or
regulations relating to elections, declared untruthful
statement in its petition, it has ceased to exist for at
least one (1) year, it fails to participate in the last 2
preceding elections or failed to obtain at least 2% of
the votes cast under the party list system in the 2
preceding elections for the constituency in which it
was registered)
16
 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.
 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.
 Seventh and Eight not only the candidate party
must represent the M and U sectors, so also must
its nominees must likewise be able to contribute to
the formulation and enactment of appropriate
legislation that will benefit the nation as a whole.
AKLAT (Assosasyon Para sa Kaunlaran Ng Lipunan at
Adhikain Para sa Tao, Inc.) vs. Comelec, G.R. No. 162203, 14
April 2004, came up with a ruling on the “Window-Dressing” of
party-list participant. In this case, Comelec found that
significantly, Aklat and A.K.L.A.T. have substantially the same
incorporators. In fact 4 of Aklat’s 6 incorporators are also
incorporators of A.K.L.A.T.. This substantial similarity is hard to
ignore and bolsters the conclusion that the supposed re-
organization undertaken by Aklat is plain window-dressing as it
has not really changed its character as a business interest of
persons in the book publishing industry.
The Court observed that Aklat’s articles of
incorporation and document entitled The Facts About Aklat which
were attached to its petition for re-qualification contain general
averments that it supposedly represents marginalized groups such
as the youth, indigenous communities, urban poor and
farmers/fisherfolks. These general statements do not measure up
to the first guideline set by the Bagon Bayani case for screening
party-list participants. Sec. 5 of RA 7941 provides that “it must
show – through its constitution, articles of incorporation, bylaws,
history, platform of government and track record – that it
represents and seeks to uplift marginalized and underrepresented
sectors. Verily, majority of its membership should belong to the
marginalized and underrepresented.
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.
New Formula in the Allocation of Seats for Party-List
Representatives
Banat et. al. vs. Comelec G.R. 178271/12972 586 SCRA 210
(2009) – Aksyon Magsasaka-Partido Tinig Masa (AKMA-
PTM) v. Comelec 758 SCRA 2015. After the VFP v. Comelec,
G.R. No. 136781, 136786 and 136795, 06 October 2000, ruling of
the Supreme Court and the controversial application of the
“Panganiban Formula” by the Abalos Commission, Party-list
participants in Banat et al., filed separate complaints against the
Comelec on the proper allocation of seats in the party-list system.
On 23 April 2009, the Supreme Court declared the 2% threshold
clause in relation to the distribution of the additional seats of RA
7941 unconstitutional.
Following Section 5, Article VI, par. 2 of the 1987
Constitution, 20% of all seats in the HR is reserved for sectoral
representatives elected in the party list system. This formula is
now called the “Carpio formula.”
Under the Banat and Bayan Muna cases (G.R. No.
179271 and G.R. No. 179295, 21 April 2009), the SC laid down
the latest formula in the allocation of seats for party-list
participants:
1) The parties, organizations and coalitions shall be ranked from
the highest to the lowest based on the number of votes they
garnered during the elections.
2) The parties, organizations and coalitions receiving at least 2%
of the total votes cast for the party-list system shall be entitled
to one guaranteed seat each.
3) Those garnering sufficient number of votes, according to the
ranking above-mentioned in paragraph no. 1 hereof, shall be
entitled to additional seats in proportion to their total number of
votes until all the additional seats are allocated. (2% cap no longer
considered in the second round since the 2% cap was declared
unconstitutional in the Banat Case.)
4) Each party, organization, or coalition shall be entitled to not
more than 3 seats.
Banat abandoned the matter of computation held in the Veterans
Party case considering that the intention was to fill the 20% seats
in the HR.
ELIGIBILITY OF CANDIDATES
Candidate defined: The term “candidate” refers to any person
aspiring 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, OEC)
The terms “candidate” under the Automated Election System
(AES) in 2010, refers to “any person aspiring for or seeking an
elective public office who has filed his COC and who has not died
or withdrawn or otherwise disqualified before the start of the
campaign period for which he filed his COC. Provided, that,
unlawful acts or omissions applicable to a candidate shall take
effect only upon the start of the aforesaid campaign period.”
(Comelec Reso. No. 8678).
As regards a Party-List system, a “candidate” also refers to “any
registered national, regional, or sectoral party, organization or
coalition thereof that has filed a manifestation to participate under
the part-list system which has not withdrawn or which has not be
disqualified before the start of the campaign period.” (RA 7941).
Comelec Reso. No. 9615 adopted a broader definition of the term
“candidate” for the 13 May 2013 Elections to include party-list in
include all the above-definitions.
Qualifications
17
For President and Vice-President – No person may be elected
President unless he is a natural-born citizen of the
Philippines, a registered voter, able to read and
write, at least 40 years of age on the day of the
election, and a resident of the Philippines for at
least 10 years immediately preceding such election.
There shall be a Vice-President who shall have the same
qualifications and term of office and be elected with, and in the
same manner, as the President. He may be removed from office in
the same manner as the President (Article VII, Section 2 and 3,
Constitution)
For Senator – No person shall be a Senator unless he is a natural-
born citizen of the Philippines and, on the day of election, is at
least 35 years of age, able to read and write, a registered voter, and
a resident of the Philippines for not less than 2 years immediately
preceding the elections. (Article VI, Section 3, Constitution)
For Members of the House of Representatives – No person shall
be a Member of the HR unless he is natural-born citizen of the
Philippines, and, on the day of election, is at least 25 years of age,
able to read and write, and except the party list representatives, a
registered voter in the district in which he shall elected, and a
resident thereof for a period of not less than on year immediately
preceding the election. (Article VI, Section 6, Constitution)
For Party-List Nominees – No person shall be nominated as
party-list representative unless he is a natural born-citizen of the
Philippines, a registered voter, a resident of the Philippines for a
period of not less than one (1) year immediately preceding the day
of the election, able to read 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 election and is at least 25 years of
age on the day of the election.
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. Any 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. (RA 7941).
Bengzon III v. HRET 357 SCRA 545 (2001) – Repatriation
results in the recovery of the original nationality. This means that a
naturalized Filipino who lost his citizenship will be restored to his
prior status as a naturalized Filipino citizen.. On the other hand, if
he was originally a natural-born citizen before he lost his
Philippine citizenship, he will be restored to his former status as a
natural-born Filipino.
Local Government Officials – An elective local official must be a
citizen of the Philippines; a registered voter in the barangay,
municipality, city or province or, in the case of a member of the
sangguniang panlalawigan, sangguniang panlungsod or
sangguniang bayan, the district where he intends to be elected; a
resident therein for at least one (1) year immediately preceding the
day of the election; able to read and write Filipino or any other
local language or dialect.
Common to All Offices - Voluntary 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.
RA No. 9165 (Comprehensive Dangerous Drugs Act of 2002)
Section 36(g) provides that “all candidates for public office
whether appointed or elected both in the national and local
government shall undergo mandatory drug tests. Comelec issued
Resolution No. 6486 on 23 December 2003 implementing 9165.
Publication of the results will be published. But the resolution
does not indicate whether or not candidates who test positive for
drugs will be allowed to assume office if they win.)
Social Justice Society v. Dangerous Drugs Board, G.R. No.
157870, 03 November 2008 – Sec. 36(g) of RA 965 and Comelec
Resolution No. 6486 was challenged as the same illegally impose
an additional qualification on candidates for senator. Senator
Pimentel point out that, subject to the provision on nuisance
candidates, a candidate for senator needs only to meet the
qualification laid down in Section 3, Art. VI of the Constitution, to
wit: (1) citizenship; (2) voter registration; (3) literacy; (4) age and
(5) residency. Beyond these stated qualification requirements,
candidates for senator need not possess any other qualification to
run for senator and be voted upon and elected as member of the
Senate.
As ruled, Sec. 36(h) of RA 9165, as sought to be
implemented by Comelec assailed Resolution, effectively enlarges
the qualification requirements enumerated in Sec. 3, Art. VI of the
Constitution. As couched, said Sec. 36(g) unmistakably requires a
candidate for senator to be certified illegal drug-clean, obviously a
pre-condition to the validity of a certificate of candidacy for
senator or, with like effect, a condition sine qua non to be voted
upon and, if proper, be proclaimed as senator-elect. Viewed in its
proper context, the implementing Comelec Resolution add another
qualification layer to what the 1987 Constitution, as the minimum,
required for membership in the Senate. Sec. 36(h) infringed the
constitutional provision defining the qualification or eligibility
requirements for one aspiring to run for and serve as senator.
Getting elected would be of little value if one cannot assume office
for non-compliance with the drug-testing requirement.
CERTIFICATE OF CANDIDACY
1. Under the Manual Elections – The COC of candidacy shall be
filed on any day from the commencement of the election period
but not later than the day before the beginning of the campaign
period; Provided, that in cases of postponement or failure of
election under Section 5 and 6 of the OEC, no additional COC
shall be accepted except in cases of substitution of candidates as
provided un Section 77. (Section 75, OEC)
COC must be filed not later than the day before the date
for the beginning of the campaign period. (Sec. 7, RA 7166)
2. Under the AES –RA 9369 provides – “For this purpose, the
Commission shall set the deadline for the filing of
COC/petition of registration/manifestation to participate in the
election. Any person who files his COC within this period shall
only be considered as a candidate at the start of the campaign
period for which he filed his COC; Provided that, unlawful acts or
omissions applicable to a candidate shall effect only upon the start
of the aforesaid campaign period. Xxxx “. This provision repealed
Section 11 of RA 8436 provides “for this purpose, the deadline for
filing of COC/petition for registration/manifestation to participate
in the election shall not be later than 120 days before the elections.
Section 73, BP 881/Omnibus Elections Code (OEC) , par. (1) –
Certificate of Candidacy – No person shall be eligible for any
elective office unless he files a sworn certificate of candidacy
within the period fixed therein. Sinaca v. Mula 315 SCRA 266, it
is the nature of a formal manifestation to the whole world of the
candidate’s political creed or lack of political creed.
Coquilla v. Comelec G.R. No. 139801, 31 May 2000 – A
certificate which did not indicate the position for which the
candidate is running may be corrected. The SC ruling on the
effectiveness of the amended COC filed to correct the defect
declared that the filing of an amended COC even after the deadline
but before the election was substantial compliance with the law
which cured the defect.
Section 73 (3) BP 881 (Effect of filing multiple certificates of
candidacy)– No person shall be eligible for more than one office
to be filed in the same election (requirement to run for elective
office), and if he files his certificate of candidacy for more than
one office, he shall not be eligible for any of them.
Section 74 of BP 881 requires, among others, that a candidate shall
use in a COC the name by which he has been baptized, unless the
candidate has changed his name through court-approved
proceedings, and that he may include one nickname or stage name
by which he is generally or popularly known in the locality.
(Villafuerte vs. Comelec 717 SCRA 312)
Withdrawal of Certificate of Candidacy - However, before the
expiration of the period for the filing of the certificates of
candidacy, the person who has filed more than one certificate of
candidacy may submit a written declaration under oath the office
for which he desires to be eligible and cancel the certificate of
candidacy for the other office or offices.
Pilar v. Comelec 245 SCRA 759 (1995) – The withdrawal of a
certificate of candidacy does not extinguish one’s liability for the
administrative fine imposed by Section 14 of R.A. No. 7166,
which requires every candidate to file a true statement of all
contributions and expenditures in connection with the elections.
Villanueva v. Comelec 122 SCRA 636 (1983) – the withdrawal of
a certificate of candidacy not made under oath produces no legal
effect; for all intents and purposes, the withdrawing candidate
remains a candidate.
Go v. Comelec 357 SCRA 739 (2001) – Where affidavit of
withdrawal filed. There is nothing that mandates that the affidavit
of withdrawal must be filed with the same office where the
18
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 supervisor 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.
EFFECTS: FILING OF CERTIFICATE OF CANDIDACY
In Talaga v. Comelec/Alcala 683 SCRA 197 (2012) The High
Court provided for the rationale for the filing of CoC within a
prescribed period – The evident purposes of the requirement for
the filing of CoCs and in fixing the time limit for filing them are,
namely; (a) to enable the voters to know, at least 60 days prior to
the regular election, the candidates from among whom they are to
make the choice; and (b) to avoid confusion and inconvenience in
the tabulation of the votes cast. If the law does not confine to the
duly-registered candidates the choice of the voters, there may be as
many persons voted for as there are voters, and votes may be cast
even for unknown or factitious persons as a mark to identify the
votes in favor of a candidate for another office in the same
election.
Sec. 66 BP 881/OEC. 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 (Nicolasora v.
CSC 1990 case and PNOC v. NLRC, May 31, 1993), where the
provision of Sec. 66 is applicable also to GOCC and can constitute
as a just cause for termination of employment in addition to those
set forth in the Labor Code.
Section 66 has already been repealed by RA 9369 to
wit – “Section 13. Section 11 of RA 8436 is hereby amended to
read as follows: “Any person holding a public office or position,
including active members of the AFP, and officers and employees
in GOCC, shall be considered ipso facto resigned from his/her
office and must vacate the same at the start of the day of the
filing of his/her certificate of candidacy.
Sec. 67 OEC – An elective official running for a position other
than the one he is holding in a permanent capacity, except for
President and Vice-President, is deemed resigned upon the filing of
his certificate of candidacy. Section 67 has been repealed by
Section 14 of RA 9006 (The Fair Elections Law), a candidate
holding an elective position whether national or local running for
office other than the one he is holding in a permanent capaci is
considered resigned only upon the expiration of his term..
Sinaca v. Mula 315 SCRA 266 (1999) – The provision of the
election law regarding certificates of candidacy, such as signing
and swearing on the same, as well as the information required to be
stated therein, are considered mandatory prior to the elections.
Thereafter, they are regarded as merely directory.
Quinto v. Comelec G.R. No. 189698, 22 February 2010 – the
Court ruled that substantial distinctions exists between elective
official and appointive officials. The former occupy their office by
virtue of the mandate of the electorate. They are elected to an
office for a definite term and may be removed therefrom only upon
stringent conditions. On the other hand, appointive officials hold
their office by virtue of their designation thereto by an appointing
authority. Some appointive officials hold their tenure while other
serve at the pleasure of the appointing authority.
SUBSTITUTION OF CANDIDACY
Section 77 BP 881. Candidates in case of death, disqualification
or withdrawal of another. After the last day for the filing of
certificates of candidacy, an official candidate of a registered or
accredited political party dies, withdraws or is disqualified for any
cause, only a person belonging to, and certified by, the same
political party may file a certificate of candidacy to replace the
candidate who died, withdrew or was disqualified. The
substitute candidate nominated by the political party concerned
may file his certificate of candidacy for the office affected in
accordance with the preceding sections not later than mid-day of
the date of the election. If the death, withdrawal or
disqualification should occur between the day before the election
and mid-day of election day, said certificate may be filed with the
board of election inspectors in the political subdivisions where he
is a candidate or, in the case of candidates to be voted for by the
entire electorate of the country, with the Commission.
A valid certificate of candidacy is an indispensable requisite in
case of substitution of a disqualified candidate under Sec. 77.
Under said provision, the candidate who dies, withdraws or is
disqualified must be an official candidate of a 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.
Rulloda vs. Comelec G.R. No. 154198 January 20, 2003 – The
absence of a specific provision governing substitution of
candidates in barangay elections cannot be inferred as a prohibition
against said substitution. Such a restrictive construction cannot be
read into the law where the same is not written. Indeed, there is
more reason to allow substitution of candidates where no political
parties are involved than when political considerations or party
affiliations reign, a fact that must have been subsumed by law.
Miranda v. Abaya, G.R. No. 136351 July 28, 1999 – Substitution
is not allowed if certificate of the candidate to be substituted was
cancelled, because he was running for the 4 th consecutive term. A
person without a valid COC cannot be considered a candidate in
much the same way as any person who has not filed any COC at all
cannot, by any stretch of the imagination, be a candidate at all.
Talaga v. Comelec & Castillo and Castillo v. Comelec & Talaga,
683 SCRA 197 (2012) – In this case, Ramon was disqualified
having been found to be ineligible for the position of Mayor of
Lucena City which disqualification became final prior to the May
10, 2010 elections. Barbara Ruby filed her CoC in substitution of
Ramon. Castillo was the opponent who filed a disqualification
case against Barbara Ruby on the ground that the substitution was
not valid in view of the ineligibility of Ramon, Ramon did not
voluntarily withdraw his CoC before the elections in accordance
with Section 73 and that she was not an additional candidate for
the position of Mayor because her filing of her CoC was beyond
the period fixed by law. Comelec declared the substitution of
Barbara Ruby as invalid on May 20, 2011
Barbara Ruby garnered the highest number of votes
while Castillo garnered second. Castillo contends that since the
disqualification of Ramon was final prior to the election he should
be declared winner. Castillo made reference to case of Cayat. In
this case, Rev. Fr. Nardo B. Cayat, the petitioner in Cayat, was
disqualified and his disqualification became final before the May
10, 20014 elections. Considering that no substitution of Cayat was
made, Thomas R. Pelileng, Sr. his rival remained the only
candidate for the mayoralty post in Buguias, Benguet. (Cayat v.
Comelec 522 SCRA 23 (2007)).
In contrast, after Barbara Ruby substituted Ramon, the
May 10, 2010 elections proceeded with her being regarded by the
electorate of Lucena City as a bona fide candidate. To the
electorate, she became a contender for the same position vied for
by Castillo, such that she stood on the same footing as Castillo.
Such standing as a candidate negated Castillo’s claim of being the
candidate who obtained the highest number of votes, and being
consequently entitled to assume the office of Mayor. The Court
stressed that the existence of a valid CoC is a condition sine
qua non for a valid substitution. While Barbara won, although
disqualified because of invalid substitution, the law of succession
will apply by operation of law.
Effect of Substitution of Candidates after Official Ballots Have
Been Printed in AES- in case of valid substitution after the
official ballots have been printed, the votes cast for the substituted
candidates shall be considered votes for the substitutes.” (Sec. 12
RA 8436, 22 December 1997)
Section 12 of RA 9006, 12 February 2001 provides – in case of
valid substitutions after the official ballots have been printed, the
votes cast for the substituted candidates shall be considered as
stray votes but shall not invalidate the whole ballot. For this
purpose, the official ballot shall provide spaces where the voters
may write the name of the substitute candidates if they are voting
for the latter; Provided, however, that if the substitute candidate
has the same family name, this provision shall not apply.
Since Section 12 of RA 8436 has not been amended nor
repealed by RA 9369, it can be assumed that the votes cast for the
substituted candidates shall be considered votes for the substitutes
in an AES for the reason that the counting machine will not read
any unwarranted marks on the official ballot such as writing the
name of the substitute candidate.
RESIDENCY REQUIREMENT
Svetlana P. Jalosjos vs. Comelec/Tupag/Estrellada 699 SCRA
507 (2013) – The SC stressed that to be an actual and physical
resident of a locality, one must have a dwelling place where one
resides no matter how modest and regardless of ownership. The
fact that the residential structure where petitioner intends to reside
was still under construction on the lot she purchased means that
she has not yet established actual and physical residence in the
19
barangay, contrary to the declaration of her witnesses that she has
been an actual and physical resident of Brgy. Tugas since 2008.
Meynard Sabili v. Comelec/Florencio Librea 670 SCRA 664
(2012). It is not required that a candidate should have his own
house in order to establish his residence or domicile in a place. It
is enough that he should live in the locality even in a rented house
or that of a friend or relative. What is of central concern then is
that the person identified and established a place in the said City
where he intended to live in and return to for an indefinite period
of time.
Jalosjos v. Comelec 683 SCRA 1 24 April 2012 – Jalosjos came
to the Philippines in November 2008 to live with his brother in
Zamboanga Sibugay. It is evident that Jalosjos did so with intent to
change his domicile for good. He left Australia, gave up his
Australian citizenship, and renounced his allegiance to that
country. In addition, he reacquired his old citizenship by taking an
oath of allegiance to the Republic of the Philippines, resulting in
his being issued a Certificate of Reacquisition of Philippine
Citizenship by the BID. By his acts, Jalosjos forfeited his legal
right to live in Australia, clearly proving that he gave up his
domicile there. And he has since lived nowhere else except in Ipil,
Zamboanga Sibugay.
Mitra vs. Commission on Elections, Antonio Gonzales and
Orlando Balbon, Jr. 622 SCRA 744 (July 2010). In considering
the residency issue, the dwelling where a person permanently
intends to return to and to remain – his or her capacity or
inclination to decorate the place, or the lack of it, IS
IMMATERIAL. Comelec gravely abused its discretion when it
determined the fitness of a dwelling as a person’s residence
based solely on very personal and subjective assessment
standards when the law is replete with standards that can be
used. Comelec used wrong considerations in arriving at the
conclusion that Mitra’s residence is not the residence contemplated
by law.
Asistio v. Trindad Pe-Aguirre, G.R. No. 191124, 27 April 2010 –
the High Court said – “Domicile is not easily lost. To successfully
effect a transfer thereof, one must demonstrate: (1) an actual
removal or change of domicile; (2) a bona fide intention of
abandoning the former place of residence and establishing a new
one; and (3) acts which corresponding with that purpose. There
must be animus manendi coupled with animus non revetendi. This
purpose to remain in or at the domicile of choice must for for an
indefinite period of time; the change of residence must be
voluntary; and the residence at the place chosen for the new
domicile must be actual.
Limbona v. Comelec, G.R. No. 181970, June 25, 2008 – There
is no hard and fast rule to determine a candidate’s compliance with
residency requirement since the question of residence is a question
of intention.
Coquilla vs. Comelec 385 SCRA 607 – A former Filipino citizen
cannot be considered a resident of the Philippines and in the
locality he intends to be elected prior to his reacquisition of
Philippine citizenship.
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 the
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 domicile of
origin is acquired by every person at birth. It is usually the place
where the child’s parents reside and continues until the same is
abandoned by acquisition of a new domicile (by choice.)
Romualdez-Marcos v. Comelec 248 SCRA 30 (1995). “it is the
fact of residence, not a statement in the certificate of candidacy
which ought to be decisive in determining whether or not 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, the qualifications of Rodolfo
Aguinaldo former governor of Cagayan was at issue when he filed
his certificate of candidacy as member of the HR for the 3 rd district
of Cagayan in the 11 May 1998 elections. The Court reiterated the
meaning of residence as “the place where the 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, while domicile, is that to which the Constitution refers
when it speaks of residence for the purpose of election law. And,
the fact that a person is a RV in one district is not proof that he is
not domiciled in another district.
Torayno Sr., vs. Comelec 337 SCRA 574, the issue in this case is
the residence qualification of Vicente Emano who filed his
certificate of candidacy for Mayor of Cagayan de Oro. Court
explained that the purpose of the residence as required by
Constitution and the law as a qualification 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.
On the part of the electorate, to evaluate the candidate’s
qualification s and fitness for the job they aspire for. In this case
Emano, cannot be deemed to be a stranger or newcomer when he
ran for and was overwhelmingly voted as city mayor having
garnered a margin of 30K votes.
Papandayan, Jr. vs. Comelec 381 SCRA 133. Domicile connotes
a fixed permanent residence to which when absent for business or
pleasure, or for like reasons, one intends to return. The
requirements in order to acquire a new domicile by choice are: (a)
an intention to remain there; (b) residence or bodily presence in the
new locality; and (c) an intention to abandon the old domicile.
ACTIONS TO CHALLENGE CANDIDACY OF A
CANDIDATE OR DISQUALIFY CANDIDATE
1) Sec. 12 of the 0EC –
 any person who has been declared by competent
authority insane or incompetent (when we say
incompetence, the same may refer not only to
mental illness, disease or physical disability but
also to other causes which may include minority
or lack of residence requirement)
 any person who has been sentenced by final
judgment for subversion, insurrection, rebellion
 for any offense for which carries a penalty of
more than 18 months
 for a crime involving moral turpitude
The disqualification is removed by
 plenary pardon or granted amnesty
 upon declaration by a competent authority
that said insanity or incompetence had been
removed
 expiration of a period of 5 years from his
service of sentence unless of course within
the same period he again becomes
disqualified.
2) Sec. 68 of the OEC
 those 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
 those who have spend in the election campaign more
than that required by law (Php10/RV/Php5.00)
Period to file – A petition to disqualify a candidate based on Sec.
68, as would validly cancel any votes cast for him as “stray votes”
if granted, should be filed before the day of the elections. This
will enable the substitute candidacy to be filed thus giving the
electorate a choice of alternative candidates.
NOTE: Section 68 deals with a petition to disqualify a candidate
for other violation of the election code as specified in said section,
and against a candidate who is a permanent resident or immigrant
of a foreign country. That section does not specify a period within
which to file the petition.
In Codilla vs. De Venecia 393 SCRA 634, it was held that the
power of Comelec to disqualify candidates is limited
to the enumerations mentioned in Section 68 of the
OEC. Elements to be proved are as follows:
 the candidate, personally or through his instructions,
must have given money or other material consideration
and
 the act of giving material consideration or money
should be for the purpose of influencing, inducing or
corrupting the voters or public officials performing
electoral functions.
20
NOTE: All the offenses mentioned in Section 68 refer to election
offenses under the OEC, not to violations of other penal laws.
There is absolutely nothing in the language of Section 68 that
would justify including violation of the 3-term limit rule, or
conviction by final judgment of the crime of falsification under the
Revised Penal Code, as one of the ground or offenses covered
under Section 68. (Aratea vs. Commission on Elections 683 SCRA
105).
3) Sec. 69 – 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 Section 76 of the
OEC.
WHO IS A NUISANCE CANDIDATE
 one who files his certificate to put the election process
in mockery or disrepute
 contemplates the likelihood of confusion which the
similarity of surnames of two (2) candidates may
generate. (in the appreciation of ballots, when two
candidates with the same name or surname and only the
name or surname is written, will be considered stray
vote and will not be counted for either of the candidate
unless one of the candidate with the same name or
surname is an incumbent – equity of the incumbent
rule)
 by other circumstances or acts which clearly
demonstrate that the candidate has no bonafide
intention to run for office, thus would prevent the
faithful determination of the true will of the people.
(Bautista vs. Comelec 298 SCRA 480)
Who can file – 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. (As amended by Section 5 of RA 6646
Rev. Elly Chavez Pumatong v. Comelec, G.R. No. 161872 13
April 2004 – The rationale behind the prohibition against nuisance
candidates and the disqualification of candidates who have not
evinced a bona fide intention to run for office is easy to divine.
The State has a compelling interest to ensure that its electoral
exercises are rational;, objective and orderly. Towards this end, the
State takes into account the practical considerations in conducting
elections. Inevitably, the greater the number of candidates, the
greater the opportunities for logistical confusion, not to mention
the increased allocation of time and resources in preparation for the
election. These practical difficulties should, of course, never
attempt the State from the conduct of a mandated electoral
exercise. At the same time, remedial actions should be available to
alleviate these logistical hardships, whenever necessary and proper.
Ultimately, a disorderly election is not merely a textbook example
of inefficiency, but a rot that erodes faith in our democratic
institutions.
Martinez III vs. HRET 610 SCRA 53 (January 2010) –
Proceedings in cases of nuisance candidates require prompt
disposition. The declaration of a duly registered candidate as
nuisance candidate results in the cancellation of his COC. In this
case, Celestino Martinez and private respondent Benhur
Salimbangon were among the candidate for member of the HR in
the 4th District of Cebu. Celestino Martinez filed a petition to abate
Edelito C. Martinez as nuisance candidate which was decided one
month after the elections. Salimbangon was proclaimed winner
with 67,277 votes against Martinez 67,173 votes or a difference of
104 votes. Martinez filed an Election Protest Ad Cautelam based
on 300 ballots more less with only “Martinez” or “C. Martinez”
written on the line which was considered stray on the ground that
there was another congressional candidate who had the same
surname. The Comelec and HRET considered the votes stray.
Issue: What then is the legal effect of declaring a nuisance
candidate as such in a final judgment AFTER the elections? Should
ballots containing only the similar surname of two (2) candidates
be considered as stray votes in favor of the bona fide candidate?
The votes should be counted in favor of the bonafide candidate.
The SC ruled that Martinez should not be prejudiced by the
Comelec’s inefficiency and lethargy.
Dela Cruz v. Comelec G.R. No. 192221, 13 November 2012 -
(Should the votes cast for such nuisance candidate be
considered stray or counted in favor of the bona fide
candidate?) – In an automated election, the Supreme Court,
likewise ruled not to consider the votes cast for a nuisance
candidate as stray but to count them in favor of the bona fide
candidate.
“As far as Comelec is concerned, the confusion caused
by similarity of surnames of candidates for the same position and
putting the electoral process in mockery or disrepute, had already
been rectified by the new voting system where the voter simply
shades the oval corresponding to the name of their chosen
candidate. However, as shown in this case, Comelec issued
Resolution No. 8844 on May 1, 2010, 9 days before the elections,
with sufficient time to delete the names of disqualified candidates
not just from the Certified List of Candidates, but also from the
Official Ballot. Indeed, what use will it serve if Comelec orders
the names of disqualified candidates to be deleted from list of
official candidates if the official ballots still carry their name?
The Court holds that the rule in Resolution No. 4116
considering the votes cast for a nuisance candidate declared as
such in a final judgment, particularly where such nuisance
candidate has the same surname as that of the legitimate candidate,
not stray but counted in favor of the latter, remains a good law.
As earlier discuss, a petition to cancel or deny a CoC under Section
69 of the OEC should be distinguished from a petition to disqualify
under Section 68. Hence, the legal effect of such cancellation of a
CoC of a nuisance candidate cannot be equated with a candidate
disqualified on grounds provided in the OEC and the Local
Government Code.
The possibility of confusion in names of candidates if
the names of nuisance candidates remained in the ballot on election
day, cannot be discounted or eliminated, even under the automated
voting system especially considering that voters who mistakenly
shaded the oval beside the name of the nuisance candidate instead
of the bonafide candidate they intended to vote for could no longer
ask for replacement ballots to correct the same.
Joseph Timbol v. Comelec 751 SCRA 456 – On October 5, 2012
Timbol filed a CoC for member of the SP of the 2nd District of
Caloocan City. On January 15, 2013 he received a Subpeona from
the Comelec Election Officer ordering him to appear before the
Comelec Office for a clarificatory hearing in connection with his
CoC. Timbol argued that he was not a nuisance candidate having
ranked 8th in the last elections and that, he has sufficient resources
to sustain his campaign.
He pointed out that notwithstanding the clarificatory
hearing, his name was already among those listed as nuisance
candidate in the Comelec website. The Election Officer
recommended that his CoC be given due course and that his name
be removed in the said list. His name was however not removed
from the list. Comelec contends that the petition is moot and
academic considering that the 2013 elections had already been
conducted; that even assuming the petition is moot and academic,
it maintained that it did not gravely abused its discretion as he was
given the opportunity to be heard during the clarificatory hearing
and that the inclusion of the CoC of Timbol was denied
considering that the ballots had already started to be printed.
Whether moot and academic: A case is moot and academic if it
“ceases to present a justiciable controversy because of supervening
events so that a declaration thereon would be of no practical use or
value. When a case is moot and academic, the SC general declines
jurisdiction over it. Exceptions: The SC has taken cognizance of
moot and academic cases when (1) there was grave violation of the
Constitution; (2) the case involved a situation of exceptional
character and was of paramount public interest, (3) the issues
raised required the formulation of controlling principles to guide
the Bench, the Bar and the public; and (4) the case was capable of
repetition yet evading review.
RULING: while case is moot and academic, does not preclude
from setting forth “controlling and authoritative doctrines” to be
observed by Comelec in motu propio denying due course to or
cancelling CoC of alleged nuisance. This motu propio authority is
always subject to the alleged nuisance candidate’s opportunity to
be heard. – an essential element of due process.
4) Sec. 78 OEC – Petition to Deny due Course or to Cancel a
Certificate of Candidacy. “A verified petition seeking to deny
due course or to cancel a certificate of candidacy may be filed by
the person exclusively on the ground that any material
representation contained therein as required under Section 74
(contents of the COC) of the OEC is false. The petition may be
filed at any time not later than 25 days from the time of the filing
of the certificate of candidacy and shall be decided, after due
notice and hearing, not later than 15 days before election.”
Who may file – by any person through a verified petition
21
On What Grounds – the candidate made material
misrepresentation in his certificate of candidacy.
Section 78 deals “exclusively” with a petition to
deny due course to a COC on the ground that a
material representation in the contents of the
certificate under Sec. 74, is false. (pertains to a
candidate’s eligibility or qualification such as
citizenship, residence or status as a registered voter
Maruhom vs. Comelec 594 SCRA 108)
Period to File – Within 25 days from the last day for the filing of
the certificate of candidacy.
Jurisdiction – Comelec sitting in a division.
Hayudini v. Comelec 723 SCRA 223 – The Court ruled that the
false representation in Section 78 must pertain to a material fact,
not to a mere innocuous mistake. A candidate who falsifies a
material fact cannot run; if he runs and is elected, he cannot serve;
in both cases. He or she can be prosecuted for violation of the
election laws. These facts pertain to a candidate’s qualification for
election office, such as his or her citizenship and residence.
Similarly, the candidate’s status as a registered voter falls under
this classification as it is a legal requirement which must be
reflected in the CoC. The reason for this is obvious: the candidate,
if he or she wins, will work for and represent the local government
under which he or she is running. Even the will of the people, as
expressed through the ballot cannot cure the vice of ineligibility,
especially if they mistakenly believed, as in the instant case, that
the candidate was qualified.
Sergio G. Amora, Jr. vs. Comelec and Arnielo S. Olandria 640
SCRA 473 (2011) - To emphasize, a petition for disqualification
on the one hand, can be premised on Section 12 and 68 of the
OEC, or Section 40 of the LGC. On the other hand, a petition to
deny due course to or cancel a CoC under Sec. 78, can only be
grounded on a statement of a material representation in the said
certificate that is false. The petitions also have different effects.
While a person who is disqualified under Section 68 is merely
prohibited to continue as a candidate, the person whose certificate
is cancelled or denied due course under Section 78 is not treated as
a candidate at all, as if he/she never filed a CoC. Thus in Miranda
v. Abaya, this Court made the distinction that a candidate who is
disqualified under Section 68 can validly be substituted under
Section 77, but a person whose CoC has been denied due course or
cancelled under Section 78 cannot be substituted because he/she is
never considered a candidate.” (also ruled in Fermin v. Comelec
574 SCRA 782)
Mayor Barbara Ruby Talaga vs. Comele/Alcala 683 SCRA 197
(2012) – The High Court reiterated, that a Section 78 petition
should not be interchanged or confused with a Section 68 petition.
The remedies under the two sections are different eventualities. A
person who is disqualified under Section 68 is prohibited to
continue as a candidate, but a person whose CoC is cancelled or
denied due course under Section 78 is not considered as a
candidate at all because his status is that of a person who has not
filed a CoC. Miranda v. Abaya 311 SCRA 617 (1999), has
clarified that candidate who is disqualified under Section 68 can be
validly substituted pursuant to Section 77 because he remains a
candidate until disqualified; but a person whose CoC has been
denied due course or cancelled under Section 78 cannot be
substituted because he is not considered a candidate.
Munder vs. Comelec 659 SCRA 254 (2011) - “Jurisprudence has
clearly established the doctrine that a petition for disqualification
and a petition to deny due course to or to cancel a certificate of
candidacy, are two distinct remedies to prevent a candidate from
entering an electoral race. Both remedies prescribe distinct period
to file the corresponding petition, on which the jurisdiction of the
Commission on Elections over the case is dependent.”
 Munder filed CoC as mayor of
Bubong, Lanao del Sur on 26 November
2009
 Last day for filing of CoC was on 30
November 2009
 Under Comelec Rec. No. 8698, a petition to
deny due course to or to cancel a CoC must
be filed within 5 days from last day of the
filing of the Coc but not later than 25 days
from the filing.
 Atty. Sarip who also filed a CoC for the
same position
 Atty. Sarip on 13 April 2010 filed a Petition
for Disqualification with Comelec on the
ground that Munder was not a RV of
 Bubong and that his CoC was not
accomplished in full.
 Sarip anchored the disqualification on the
Certification of the EO that there was no
Alfais T. Munder born on 07 May 1987 but
there was another Munder Alfais Tocalo
residing in Bubon whose date of birth was
07 May 1984 registering for the first time in
2003 and hence, was only 18 years old at the
time of the said filing. Hence Sarip alleged
that the Munder on record with Comelec is
not Munder who was running for Mayor.
 Munder overwhelmingly won in the
elections with Sarip training second. The
MBC proclaimed Munder on 15 May 2010.
 Munder in his Answer denied any
misrepresentation, dishonesty and mockery
of justice; that these were not grounds for
disqualification of a candidate under
Comelec Resolution NO. 8696. That Sarip
availed himself of the wrong remedy as his
petition should be treated as a Petition to
Deny Due Course or to Cancel COC. That
at the time Sarip filed the petition, the said
period had already lapsed. Hence, Munder
praued for the dismissal of the petition.
 On June 29, 2010, the Comelec 2nd Division
sustained Munder and ruled that the grounds
invoked by Sarip were not proper for a
petition for disqualification under Section
78.
 Comelec En Banc however reversed the
ruling of the second division and
disqualified Munder in its October 4, 2010.
Comelec ruled directly on the substantive
merit of the case, and not on the propriety of
the remedy taken by Sarip.
 Comelec ruled on the question of the
continuing possession of Munder of one of
the qualifications of the Office of the Mayor
– being a RV of the municipality where he
runs as a candidate.
 Comelec disregarded the fact that Munder
had already been proclaimed but still ruled
against him and proceeded to declare him
disqualified. (RTC already has jurisdiction).
 Munder was ordered to vacate the Office
(which further caused confusions and sought
division among the constituents)
 In his Petition, Munder argues that Comelec
acted without or in excess of its jurisdiction
in taking cognizance of Sarip’s petition
which was filed beyond the reglementary
period provided by law. That Comelec
gravely abused its discretion in effectively
ruling upon his right to vote, when it
attacked his status as a RV, in order to
disqualify him.
 Munder alleged that Sarip should have
instead filed a petition for QW after his
proclamation.
Issues: 1) May a petition filed as a Petition for Disqualification
properly invoke, as a ground, that the candidate sought to be
disqualified was not a RV and thus not be barred by the earlier
prescriptive period applicable to Petition to Deny Due Course to or
to Cancel CoC?
2) Did Comelec gravely abuse its discretion in concluding that the
Alfais Munder in the voter’s list is not the same as Alfais Munder
the candidate?
3) Does Sarip have the right to be installed as Mayor for having
placed second in the electoral contest?
Comelec agreed with Munder as to the nature of the
petition filed by Sarip (ground: dishonesty in declaring that
Munder was a RV which in fact he was not) was appropriate for a
Petition to Decny Due Course to or to Cancel CoC. The SC
invoked its ruling in Amora v. Comelec and Fermin v. Comelec
which is applicable to the case and held that the Comelec should
have dismissed the petition outright since it was premised on a
wrong ground.
The SC distinguishing: in Amora it held that the ground
in Section 68 may be categorized into two: First, those comprising
“prohibited” acts of candidates; and second, the fact of their
permanent residency in another country when that fact affects the
residency requirement of a candidate according to the law.
22
In Fermin, it clarified the two (2) remedies availed of
by a candidate to prevent another from running in an electoral race.
Comelec abused its discretion in concluding that
Munder was not the Munder who was the mayoralty candidate.
Registration was in 2003 and present election was in 2010…
Munder already attained eligibility to run for mayor.
Fernando V. Gonzalez vs. Comelec, et. al. 644 SCRA 761 (2011)
- “In order to justify the cancellation of CoC, it is
essential that the false representation mentioned therein pertain to a
material matter for the sanction imposed by Section 78 would
affect the substantive rights of the candidate – the right to run for
the elective post for which he filed the CoC. Material
representation refers to qualifications for elective office
(interpreted to refer to statements regarding age, residence and
citizenship or non-possession of natural-born Filipino status);
Aside from the requirement of materiality, the false representation
must consist of a deliberate attempt to mislead, misinform or hide
a fact which would otherwise render a candidate ineligible; it must
be made with the intention to deceive the electorate as to one’s
qualification for public office.” (also ruled in Salcedo II v.
Comelec 312 SCRA 447 (1999))
Two remedies available for questioning the
qualifications of the candidate: Distinction between the two
proceedings under Section 78 and Section 253 under B.P. 881,
thereof (1) Before elections under Section 78 and (2) After
elections under Section 253. The only difference between the two
proceedings is that, under Section 78, the qualifications for elective
office are misrepresented in the certificate of candidacy and the
proceedings must be initiated before the elections, whereas a
petition for QW under Section 253 may be brought on the basis of
two grounds – (1) ineligibility or (2) disloyalty to the Republic of
the Philippines, and must be initiated within 10 days after
proclamation of the election results. Under Section 253, a
candidate is ineligible if he is disqualified to be elected to office,
and he is disqualified if he lacks any of the qualification for
election office.
Clearly, the ONLY INSTANCE where a petition
questioning the qualifications of a candidate for elective office can
be filed before election is when the petition is filed under Section
78 of the OEC.
Period for filing a petition under Section 78 – In Loong
v. Comelec 216 SCRA 760 (1992), the Court categorically
declared that the period for filing a petition for cancellation of
candidacy based on false representation is covered by Rule 23 and
NOT Rule 25 allowing the filing of a petition at any time after the
last day for filing of CoC’s but not later than the date of
proclamation, is merely a procedural rule that cannot supercede
Section 78 of the OEC.
A petition filed under Section 78 must not be
interchanged or confused with one filed under Section 68 – In
Fermin v. Comelec 574 SCRA 782 (2008), the Court stressed that
a petition which is properly a “Section 78 petition” must therefore
be filed within the period prescribed therein, and a procedural rules
subsequently issue by Comelec cannot supplant this statutory
period under Section 78.
Jurisdiction – Once a winning candidate has been proclaimed,
taken his oath and assumed office as a member of the House of
Representatives, the jurisdiction of the Comelec over election
contests relating to his election, returns and qualifications ENDS
and the HRET own jurisdiction BEGINS.
In Perez v. Comelec 317 SCRA 641 (1999) the Court does not
have jurisdiction to pass upon the eligibility of the private
respondent who was already a Member of the HR at the time of the
filing of the petition for certiorari – considering that by statutory
provision (Article VI, Section 17 of the 1987 Constitution, the
HRET is the sole judge of all contests relating to the election,
returns and qualifications of the members of the HR.
Procedure in filing Motion to Suspend Proclamation: The
suspension of proclamation of a winning candidate is not a matter
which the Comelec Second Division can dispose of motu
propio. Section 6 of RA No. 6646 requires that the suspension
must be upon motion by the complainant or any intervenor.
Second Placer Rule- It is well-settled 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.
Exceptions to the Second Placer Rule – The exception to the
second placer rule is predicated on the concurrence of the
following (1) the one who obtained the highest number of votes is
disqualified; and (2) the electorate is FULLY AWARE in fact and
in law of a candidate’s disqualification so as to bring such
awareness within the realm of notoriety but would nonetheless cast
their votes in favor of the ineligible candidate. These facts
warranting the exception to the rules are not present in the case at
bar.
Ashary M. Alauya (Clerk of Court, Shari’a District Court,
Marawi City vs. Judge Casan Ali L. Limbona 646 SCRA 1
(2011) - Partisan political activity – The filing of a certificate of
candidacy is a partisan political activity as the candidate thereby
offers himself to the electorate for an elective post. “No officer or
employee in the civil service shall engage directly or indirectly, in
any electioneering or partisan political campaign.” The act of the
Judge in filing a certificate of candidacy as a party-list
representative in the May 1998 elections without giving up his
judicial post violated not only the law, but also the constitutional
mandate.
Teodora Sobejana-Condon v. Comelec/Luis Bautista/Robelito
Picar/Wilma Pagaduan 678 SCRA 267 (2012) - Remedy of a
person who fails to file the petition to disqualify a certain
candidate within the twenty-five (25)-day period prescribed by
Section 78 of the OEC is to file a petition for QW within 10 days
from proclamation of the results of the election as provided under
Section 253 of the OEC.
Renunciation of foreign citizenship to be valid under Section 5(2)
of RA 9225 – The language of Section 5(2) of RA 9225 is free
from any ambiguity. In Lopez v. Comelec 559 SCRA 696 (2008),
the Court declared it ‘s categorical and single meaning: a Filipino
American or any dual citizen cannot run for any elective public
position in the Philippines unless he or she personally swears to a
renunciation of all foreign citizenship at the time of filing the CoC.
The Court also expounded on the form of the renunciation and held
that to be valid, the renunciation must be contained in an affidavit
duly executed before an officer of the law who is authorized to
administer an oath stating in clear and unequivocal terms that
affiant is renouncing foreign citizenship.
Casan Macode Maquiling v. Comelec et. al. 700 SCRA 367
(2013) – the declared policy of RA 9225 is that “all Philippine
citizens who become citizens of another country shall be deemed
not to have lost their Philippine citizenship under the conditions of
this Act”. This policy pertains to the reacquisition of Philippine
citizenship. Section 5(2) requires those who have re-acquired
Philippine citizenship and who seek elective public office, to
renounce any and all foreign citizenship. This requirement of
renunciation of any and all foreign citizenship, when read together
with Section 40(d) of the Local Government Code which
disqualifies those with dual citizenship from running for any
elective local position, indicates a policy that anyone who seeks to
run for public office must be solely and exclusively a Filipino
citizen. To allow a former Filipino who reacquires Philippine
citizenship to continue using a foreign passport – which indicates
the recognition of a foreign state of the individual as its national –
even after the Filipino has renounced his foreign citizenship, is to
allow a complete disregard of this policy.
Panlaqui v. Comelec 613 SCRA 573 – Voters’ inclusion/exclusion
proceedings essentially involve the issue of whether a petition shall
be included in or excluded from the list of voters based on the
qualifications required by law and the facts presented to show
possession of these qualifications. On the other hand, the COC
denial/cancellation proceedings involve the issue of whether there
is a false representation of a material fact. The false representation
must necessarily pertain not to a mere innocuous mistake but to a
material fact or those that refer to a candidate’s qualification for
elective office.
NOTE: In Fermin v. Comelec G.R. No. 179695 and G.R. No.
182369, December 18, 2008, the SC clarified that Section 5
(Procedure in cases of Nuisance candidates) and Section 7
(Petition to Deny Due Course To or Cancel a Certificate of
Candidacy under RA 6646, did not in any way amend the period
for filing “Section 78” petitions. While Section 7 of the said law
makes reference to Section 5 on the procedure in the conduct of
cases for the denial of due course to the COC’s of nuisance
candidates (then chief Justice Davide in his dissenting opinion in
Aquino v. Comelec, G.R. No. 120265, September 18, 1995 248
SCRA 400, explains that “the procedure hereinabove provided
mentioned in Section 7 cannot be construed to refer to Section 6
which does not provide for a procedure but to the effects of
disqualification cases, (but) can only refer to the procedure
provided in Section 5 of the said Act on nuisance candidates, “
the same cannot be taken to mean that the 25-day period for
23
filing Section 78 petitions is changed to 5 days counted from
the last day for the filing of COC’s.
The clear language of Section 78 cannot be amended or
modified b y a mere reference in a subsequent statute to the use of
a procedure specifically intended for another type of action.
Cardinal is the rule in statutory construction that repeals by
implication are disfavored and will not be so declared by the Court
unless the intent of the legislators is manifest. Noteworthy in
Loong v. Comelec 216 SCRA 760 (1992), which upheld the 25-
day period for filing Section 78 petitions, was decided long after
the enactment of RA 6646. Hence, Section 23, Section 2 of the
Comelec Rules of Procedure is contrary to the unequivocal
mandate of the law. Following the ruling in Fermin, the Court
declared that “as the law stands, the petition to deny due course
to or cancel a COC may be filed at anytime not later than 25-
days from the time of the filing of the COC.
In Justimbaste v. Comelec 572 SCRA 736 (2008) – Material
misrepresentation as a ground to deny due course or cancel a
certificate of candidacy refers to the falsity of a statement required
to be entered therein as enumerated in Section 74 of the OEC.
Concurrent with materiality is a deliberate intention to deceive the
electorate as to one qualification making reference to Salcedo II
that in order to justify the cancellation of the COC under Section
78, it is essential that the false representation mentioned therein
pertained to a material matter for the sanction imposed by this
provision would affect the substantive rights of a candidate – the
right to run for the elective post for which he filed the COC. There
is also no showing that there was an intent to deceive the electorate
as to the identity of the private respondent, nor that by using his
Filipino name the voting public was thereby deceived.
Disqualification under the Local Government Code R.A. 7160
A candidate for an elective office may likewise be
disqualified on the following grounds –
 those sentenced by final judgment for an offense
involving moral turpitude or for an offense
punishable by one (1) year or more imprisonment,
within 2 years after serving sentence. (Sec. 40)
(Qualifications of local elective candidates under the
LGC was asked
 in the 1999 Bar)
NOTE: The 1st ground for disqualification consists of two (2)
parts, namely: (1) 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.
Sec. 40 of RA 7160 limits the disqualification to two (2) years after
service of sentence. This should now be read in relation to Sec. 11
of RA 8189 which enumerates those who are disqualified to
register as a voter. 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.
In Risos-Vidal vs. Comelec 747 SCRA 2010, a petition for
disqualification was filed against former President Joseph Estrada,
first when he run for President after he was pardoned by then Pres.
Arroyo … three petitions for his disqualification was filed which
were effectively dismissed by Comelec on the uniform grounds
that )1_the Constitutional proscription on reelection applies to a
sitting president; and 2) the pardon granted to former President
Estrada by former President Arroyo restored the former’s right to
vote and be voted for a public office. The subsequent motions for
reconsideration were denied by Comelec. However, after the
conduct of the May 10, 2010 synchronized elections, former Pres.
Estrada only managed to garner the second highest number of
votes.
Again, former Pres. Estrada ventured into the political arena and
filed a COC this time vying for a local elective post, as Mayor of
City of Manila. His disqualification was challenged on the ground
of Sec. 40(a) of RA 7160 (“those sentenced by final judgment for
an offense involving moral turpitude or for an offense punishable
by one (1) year or more of imprisonment….further alleging that
the Pardon granted to him was condition.
Disqualification case was dismissed: Court said that by the
statements in the Pardon, he was granted an absolute pardon that
fully restored all his civil and political rights, which naturally
includes the right to seek public elective office. The grant was
clear and free from ambiguity. The phrase in the presidential
pardon at issue which declares that former President Estrada “is
hereby restored to his civil and political rights” substantially
complies with the requirement of express restoration.
 Those convicted by final judgment for violating the
oath of allegiance to the Republic
 Fugitives from justice in criminal and non-political
cases.
In Marquez, jr. vs. Comelec and Rodriguez 259 SCRA 296, it
was held that fugitives from justice refer to a person who has been
convicted by final judgment. The SC ruled 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
his own country, does not outrightly qualify him as a fugitive from
justice if he does not subject himself to the jurisdiction of the
former state. When Rodriguez left the US, there was yet no
complaint filed and warrant of arrest, hence there is no basis in
saying that he is running away from any prosecution or
punishment.
 Those removed from office as a result of an
administrative charge
Reyes v. Comelec 254 SCRA 514 (1996) – A public officer who
was found guilty in an administrative case and ordered removed in
a decision that became final before the elections is not qualified to
run for re-election.
Rodolfo Aguinaldo v. Luis Santos, 212 SCRA 768 (1992) –
However, if before the petition questioning the validity of the
administrative decision removing a public officer could be
decided, the term of office during which the alleged misconduct
was committed expire, and he is reelected, he can no longer be
removed, because his reelection operates as a condition of the
officer’s previous misconduct to the extent of cutting off the right
to remove him for it.
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.
Those with dual citizenship. The relevant cases under this
provision are the cases of – (Superceded by RA 9225)
 Mercado v. Manzano & Comelec G.R.
No. 135083 May 25, 1999
 Aznar v. Comelec 185 SCRA 703
 Cirilo Valles v. Comelec & Lopez G.R.
#138000 August 9, 2000
In Aznar, it was ruled that the mere fact that respondent Osmeña
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.
Mercado v. Manzano & Comelec, it was held that 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, were just assertions of his nationality before the
termination of his American citizenship.
Valles v. Lopez, the Court held that the mere fact that Lopez was a
holder of an Australian passport and had an ACR are not act
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). Referring to the case of Aznar, an
ACR does not amount to an express renunciation or repudiation of
one’s citizenship. 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.
In reconciling the disqualification under Sec. 40 of RA 7160. The
Court clarified and as ruled in the Manzano case “dual citizenship”
as used in the LGC and reconciled with Article IV Section 5 of
the 1987 Constitution on dual allegiance (Dual allegiance of
24
citizens is inimical to the national interest and shall be dealt
with by law.”) In recognizing situation in which a Filipino citizen
may, without performing any act, as an involuntary consequence of
the conflicting laws of different countries, be also a citizen of
another state (jus sanguinis for the Philippines where the child
follows the nationality or citizenship of the parents regardless of
his/her place of birth as opposed to jus soli which determines
nationality or citizenship on the basis of place of birth), the Court
explained that dual citizenship as a disqualification must refer to
citizens with dual allegiance.
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 declare 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.
Lopez v. Comelec 559 SCRA 696 (2008)– The ruling in Valles
in 2000 has been superseded by the enactment of RA 9225 in
2003. RA 9225 expressly provides for the condition before those
who re-acquired Filipino citizenship may run for a public office in
the Philippines. Section 5 of the said law states: “Civil and
Political Rights and Liabilities. – Those who retain or re-acquire
Philippine Citizenship under this Act shall enjoy full civil and
political rights and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines and the
following conditions xxx (2) Those seeking elective public office
in the Philippines shall meet the qualifications for holding such
public office as required by the Constitution and existing laws and,
at the time of the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign citizenship
before any public officer authorized to administer an oath.
AASJS Member-hector G. Calilung vs. Secretary of Justice
G.R. No. 160869, may 11, 2007, the SC took the opportunity to
set parameters of what constitutes dual allegiance considering that
it only made a distinction between dual allegiance and dual
citizenship in Mercado vs. Manzano.
FACTS: Following the implementation of RA 9225 “An Act
Making the Citizenship of Philippine Citizens Who Acquire
foreign Citizenship Permanent, amending for the purpose CA 63,
as amended, petitioner filed a petition against respondent DOJ
Secretary Simeon Datumanong who was tasked to implement laws
governing citizenship. He prayed for a writ of prohibition to stop
respondent from implementing RA 9225. he avers that RA 9225 is
unconstitutional as it violates Section 5, Article IV of the 1987
Constitution that states “ Dual allegiance of citizens is inimical
to the national interest and shall be dealt with by law”. He
contends that the Act cheapens the Philippine citizenship since the
Act allows all Filipinos, either natural-born or naturalized, who
become foreign citizens, to retain their Philippine citizenship
without losing their foreign citizenship. Section 3 permits dual
allegiance because said law allows natural-born citizens to regain
their Philippine by simply taking an oath of allegiance without
forfeiting their foreign allegiance. The Constitution however, is
categorical that dual allegiance is inimical to the national interest.
HELD: The intent of the legislature in drafting RA 9225 is to do
away with the provision in CA 63, which takes away Philippine
citizenship from natural-born Filipinos who become naturalized
citizens of other countries. RA 9225 allows dual citizenship to
natural-born Filipino citizens who have lost Philippine citizenship
by reason of their naturalization as citizens of a foreign country.
On its face, it does not recognize dual allegiance. By swearing to
the supreme authority of the Republic, the person implicitly
renounces his foreign citizenship. Plainly, Section 3, RA 9225
stayed clear out of the problem of dual allegiance and shifted the
burden of confronting the issue of whether or not there is dual
allegiance to the concerned foreign country. What happens to the
other citizenship was not made a concern of RA 9225. (Note:
Section 5, Article IV of the Constitution is a declaration of a
policy and it is not a self-executing provision. The legislature
still has to enact the law on dual allegiance.)
In De Guzman v. Comelec, G.R. No. 180048 June 19, 2009, it
was held that “where the Oath of allegiance and certificate of
candidacy did not comply with Section 5(2) of RA 9225 which
further requires those seeking elective public office in the
Philippines to make a personal and sworn renunciation of foreign
citizenship as where the candidate for VM of Guimba, Nueva Ecija
failed to renounce his American citizenship, it was held that he was
disqualified from running for VM in the May 14, 2007 elections.
Teodora Sobejana-Condon v. Comelec/Luis Bautista et. al. 678
SCRA 267 (2012) - Renunciation of foreign citizenship to be valid
under Section 5(2) of RA 9225 – The language of Section 5(2) of
RA 9225 is free from any ambiguity. In Lopez v. Comelec 559
SCRA 696 (2008), the Court declared it ‘s categorical and single
meaning: a Filipino American or any dual citizen cannot run for
any elective public position in the Philippines unless he or she
personally swears to a renunciation of all foreign citizenship at the
time of filing the CoC. The Court also expounded on the form of
the renunciation and held that to be valid, the renunciation must be
contained in an affidavit duly executed before an officer of the law
who is authorized to administer an oath stating in clear and
unequivocal terms that affiant is renouncing foreign citizenship.
Maquiling vs. Comelec 700 SCRA 367 (2013) – If we allow dual
citizens who wish to run for public office to renounce their foreign
citizenship and afterwards continue using their foreign passports,
we are creating a special privilege for these dual citizens, thereby
effectively junking the prohibition in Section 40(d) of the Local
Government Code. It must be stressed that what is at stake here is
the principle that only those who are exclusively Filipinos are
qualified to run for public office.
Frivaldo v. Comelec 174 SCRA 245 (1989). Frivaldo was
proclaimed governor elect of the Province of Sorsogon and
subsequently assumed office. A disqualification was filed against
him by the League of Municipalities, Sorsogon Chapter 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 the candidate was
qualified.
Republic v. dela Rosa 232 SCRA 785. The disqualification of
Frivaldo was again at issue. Frivaldo opted to reacquire his
Philippine citizenship thru naturalization but however failed to
comply with the jurisdictional requirement of publication, thus, the
Court never acquired jurisdiction to hear the naturalization of
Frivaldo. He was again disqualified.
In Frivaldo v. Comelec 257 SCRA 72 (1996), Frivaldo later
reacquired Philippines citizenship and 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 lack of citizenship
requirement. He claimed to have re-acquired his Filipino
citizenship thru repatriation. It was established that he took his
oath of allegiance under the provision of PD 725 at 2pm on 30
June 1995, much later than the time he filed his certificate of
candidacy.
The Court held that the “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
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 17 August 1994 and
being a former Filipino who has served the people repeatedly
and at the age of 81, Frivaldo deserves liberal interpretation of
the Philippine laws and whatever defects there were in his
nationality should now be deemed mooted by his repatriation.
 3 term limit or having served 3 consecutive terms.
Article X, Section 8, 1987 Constitution and Section 43(b)
of RA 7160 provides “No local elective official shall serve for
more than 3 consecutive terms in the same position. Voluntary
renunciation of 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.
In Laceda Sr., vs. Limena & Comelec 571 SCRA 603 – the
Court held that the rationale behind Section 2 of RA 9164, like
Section 43 of RA 7190 (Local Government Code) from which the
3-term rule was taken, is primarily intended to broaden the choices
25
of the electorate of the candidates who will run for office, and to
infuse new blood in the political arena by disqualifying officials
from running for the same office after a term of 9 years.
The case of Laceda Sr. involved a similar question in Latasa vs.
Comelec 417 SCRA 601 where the Court held that where a person
has been elected for 3 consecutive terms as municipal mayor and
prior to the end or termination of such 3-year term the municipality
has been converted by law into a city, without the city charter
interrupting his term until the end of the 3-year term, the
prohibition applied to prevent him from running for the 4 th time as
city mayor thereof, there being no break in the continuity of the
terms. Comelec did not err nor commit any abuse of discretion
when it declared Laceda disqualified and cancelled his COC.
Adormeo v. Comelec & Talaga, Jr. G.R. No. 147927 04
February 2002 and citing Borja v. Comelec 295 SCRA 157 and
Lonzanida v. Comelec 311 SCRA 602, it was ruled that the term
limit for elective local officals 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 (3)
consecutive terms in the same local government post;
and
 that the has fully served the three (3) consecutive terms.
In this case, respondent Talaga, Jr., was elected mayor of
Lucena City in May 1992. He served the full term, was re-elected
in 1995-98 but lost in the 1998 election to Tagarao. In the recall
elections of May 2000, Talaga, Jr. won and served the unexpired
term of Tagarao until 30 June 2001. Talaga Jr. filed his certificate
of candidacy for the same position in the 2001 elections which
candidacy was challenged by petition Adormeo on the ground that
Talaga, Jr. is already barred by the 3-term limit rule.
Adormeo contends that Talaga’s candidacy violated Section 8,
Article X of the Constitution which states that the term of office of
local elective officials shall be three (3) years and no such official
shall serve for more than three (3) consecutive terms citing the
case of Lonzanida v. Comelec To further support 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.”
The Comelec en banc ruled in favor of Talaga which reversed the
ruling of the 1st division and held that – 1) Talaga was not elected
for 3 consecutive terms because he did not win the 11 May 1998
elections; 2) that he was installed only as mayor by reason of his
victory in the recall elections; 3) that his victory in the recall
elections was not considered a term of office and is not included in
the 3-term disqualification rule and finally 4) that he did not fully
serve the 3 consecutive term. His loss in the 11 May 1998
elections is considered an interruption in the continuity of his
service as Mayor of Lucena City. ISSUE: Was Talaga disqualified
to run for Mayor of Lucena City in the 14 May 2001 elections?
In holding the qualifications of Talaga, the Court reiterated its
ruling in Borja that 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 the defeat in the 1998 elections
which is considered as an interruption in the continuity of service.
The Court further held that the comment of Fr. Bernas is
pertinent only to member of the HR there being no recall
elections provided for members of Congress.
In Lonzanida v. Comelec and Lu 28 311 SCRA 602 (July 1998),
Lonzanida was elected and served 2 consecutive terms as
municipal mayor of San Antonio, Zambales, prior to the 08 May
1995 elections. In the May 1995 elections, Lonzanida ran for the
same elective post and was again proclaimed winner. He assumed
office and discharged the duties thereof. His proclamation in 1995
was contested by his then opponent Juan Alvez who filed an
election protest before the RTC of Zambales which rendered a
decision declaring a failure of elections rendering the result for the
office as null and void. The office of the mayor was then declared
vacant. Both parties appealed to the Comelec and on 13 Nov.
1997, it resolved the election protest filed by Alvez in his favor
after determining that Alvez garnered the plurality of votes. The
Comelec issued a writ of execution ordering Lonzanida to vacate
the post to which he obeyed and Alvez assumed for the remainder
of the term.
Lonzanida again filed his certificate of candidacy for Mayor in the
11 May 1998 and his opponent timely filed a petition to disqualify
him for the same post. ISSUE: Whether Lonzanida’s 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-term limit
for elective local government officials. It was held that Lonzanida
is still qualified to run for mayor and held that the 2-rquisites for
the application of the 3-term limit is 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.
As repeatedly ruled by the SC, 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.”
Another issue raised in Lonzanida is that the Comelec already
lost jurisdiction over the disqualification case when he was
proclaimed as winner and that jurisdiction is already with the
RTC for QW. The SC reiterated its ruling in Trinidad v. Comelec
288 SCRA 76 (1998) that pursuant to Sec. 6 of RA 6646, 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. (Also ruling in Dizon v. Comelec
577 SCRA 589).
Borja v. Comelec 295 SCRA 157 (1998), the SC ruled on the
issue on whether a VM who succeeds to the office of mayor by
operation of law and serves the remainder of the term is considered
to have served a term in that office for the purpose of the 3-term
limit. The SC upheld the decision of the Comelec that succession
for the expired term is not the service contemplated as would
disqualify the elective official from running for the same elective
post. 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 as he was 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 his expiration. (Asked in the 2001 BAR)
Angel Naval v. Comelec and Nelson B. Julia 729 SCRA 299
(2014) – Naval had been elected and had served as a member of
the Saggunian 2nd District, Province of Camarines Sur from 2004-
2007, 2007-2010, 2010-2013. Pursuant to RA 9716, the legislative
districts in Camarines Sur was reapportioned wherein 8 out of 10
towns were taken from the old 2nd district to form the present 3 rd
district. The present 2nd district is composed of 2 remaining towns
which was merged with 4 towns from the old 1st district.
In 2013, Naval ran and was re-elected. A petition to deny due
course or to cancel the CoC of Naval was filed in 2012 by Julia
invoking Section 78 for having served 3 consecutive terms. Naval
alleges that the 1st, 2nd, and 3rd districts of Camarines Sur are not
merely renamed but are composed of new sets of
municipalities. With separation of the 2 towns from the other 8
towns which used to comprise the 2 nd district, the voters from
the 3rd legislative districts are no longer the same one as those
who had elected him to office in 2004 and 2007. The cases of
Latasa, Lonzanida, Borja, Aldovino and Bandillo, were cited which
all involve the application of the 3-term limit rule. The Court
however, considered the case as one of first impression and held
that while the said cases involve the application of the 3-term limit
rule, the factual and legal circumstances in those cases are different
and the doctrinal values there do not directly address the issued of
said case.
In Latasa, the issue arose as a result of the conversion
of a municipality into a city wherein it was declared that there was
no interruption of the incumbent’s mayor continuity of service
(municipal mayor to city mayor).
In Lonzanida, a candidate ran for mayoralty post and
won for 3 consecutive terms but was ousted from office as a result
of an election protest case. Lonzanida did not serve the full term.
In Borja, the mayor of Pateros died and was succeeded
in office by the VM. Was not voted for the same office.
In Aldovino, the public office was preventively
suspended which however did not interrupt the elective official’s
term. Although he was barred from exercising the functions of the
position during the period of suspension, his continued stay and
entitlement to the office remain the same.
26
In Bandillo, a case decided by the Comelec, two towns
were added to five of the 10 towns, which used to comprise
Camarines Sur’s and 1st District, to form the new 2 nd District. The
Comelec declined to apply the 3-term limit rule against the elected
Provincial Board member on the ground that the addition of the 2
towns distinctively created a new district, with an altered territory
and constituency.
The Naval case pertained to the application of the 3-
term limit rule upon local elective official whose district was
RENAMED and/or REAPPORTIONED. The Court noted that
pursuant to said RA 9716, the district which elected him for the 3 rd
and 4th time is the same one which brought him to office in 2004
and 2007.
In applying said policy, the following situations
(tenures in office) are NOT considered service of term for purpose
of applying the 3-term limit –
 officer fills up a higher office by succession/operation
of law
 officer is suspended from office (failed to serve full
term/involuntary)
 officer unseated, ordered to vacate by reason of an
election protest case
 officer serving unexpired term after winning in the
recall elections;
 officer elected to a newly created legislative district
(Bandillo case)
In Ong vs. Alegre 479 SCRA 473 – A petition for disqualification
was filed against Francis Ong for having violated the 3-term limit
rule for having served as mayor of San Vicente Camarines Norte in
the May 1995, 1998 & 2001 elections. The controversy revolves
around the 1998-2001 mayoral term wherein the election protest
filed by Alegre was promulgated after the term of the contested
office has expired.
The question for consideration is whether or not the assumption of
Francis Ong as Mayor from July 1, 1998 to June 30, 2001, may be
considered as one full term service in the context of the
consecutive term limit rule. The Court declared that such
assumption of office constitutes, for Francis, “service for the full
term” and should be counted as a full term served in contemplation
of the 3-term limit prescribed by the constitutional and statutory
provisions, barring elective officials from being elected and
serving for more than 3-consecutive terms.
The Court debunked the claim of Francis Ong that he was only a
presumptive winner in view of the ruling of the RTC that Alegre
was the real winning candidate in the light of his being proclaimed
by the MBOC coupled by his assumption of office and his
continuous exercise of the functions thereof from start to finish of
the term, should legally be taken as service for a full term in
contemplation of the 3-term rule. Lonzanida from which Ong
sought refuge is not applicable in view of the involuntary
relinquishment of office before the expiration of his term. (Same
ruling in Rivera III vs. Comelec 523 SCRA )
Aldovino Jr., vs. Comelec 609 SCRA 234 (2009) – Effect of a
preventive suspension. Article X, Section 8 – both by structure
and substance – fixes an elective official’s term of office and limits
his stay in office to 3 consecutive terms as an inflexible rule that is
stressed, no less, by citing voluntary renunciation as an example of
a circumvention. The provision should be read in the context of
interruption of term, NOT in the context of interrupting the full
continuity of the exercise of the power of the elective position.
The “voluntary renunciation” it speaks of refers only to the elective
official’s involuntary relinquishment of office and loss of title to
this office. It does not speak of the temporary “cessation of the
exercise of power or authority” that may occur for various
reasons, with preventive suspension being only one of them.
Quoting Latasa – the law contemplates a rest period during
which the local elective official steps down from office and
ceases to exercise power or authority over the inhabitants of
the territorial jurisdiction of a particular government unit.”
DISQUALIFICATION CASES (EFFECTS)
Sec. 72 of the OEC and Section 6 of 6646 states: “any candidate
who 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 is voted for and received the
winning number of votes in such election, the Comelec 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 guilt is strong.”
CAMPAIGN AND ELECTION PROPAGANDA
Election period is 120 days - 90 days before the date of the
election and 30 days thereafter. Campaign period for Pres., VP
and Senators starts 90 days before the date of the election, 45 days
for members of the HR and local candidate and 15 days for
barangay official, which excludes the day before and the day of the
elections.
Prohibited Activities – Section 80 BP881 – Election campaign or
partisan political activity outside campaign period. It shall be
unlawful for any person whether or not a voter or candidate, or for
any party or association of persons, to engage in an election
campaign or partisan political activity except during the campaign
period: Provided, That political parties may hold political
convention or meetings to nominate their official candidates within
30 days before the commencement of the campaign period and 45
days for President and Vice-President.
RA 9006 (Fair Election Law), Section 3. Election propaganda
whether on television, cable television, radio, newspapers or any
other medium is hereby allowed for all registered political parties,
national, regional, sectoral parties or organizations participating
under the party-list elections and for all bona fide candidates
seeking national and local positions subject to the limitation on
authorized expenses of candidates and political parties, observance
of truth in advertising and to the supervision and regulation by the
Comelec.
Requirements for Published or Printed Broadcast Election
Propaganda. RA 9006 now allows paid political advertisements
for print and broadcast media provided the said advertisement shall
bear and be identified by reasonably legible or audible words “
Political advertisement paid for” followed by the true and
correct name and address of the candidate or party for whose
benefit the election propaganda was printed or aired.
Free of charge – if broadcast is given free of charge the radio and
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 whether by purchase or donation – Print
advertisements shall not exceed ¼ page in broadsheet and ½ page
in tabloids 3 x a week per newspaper, magazine or other
publications during the campaign period. (Section 6, RA 9006).
Television/Radio Advertisements – nation candidates/registered
political party shall be entitled to not more than 120 minutes of TV
advertisement and 180 minutes of radio. Local candidates 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 allocate free of charge to the
national candidates. Broadcast network (radio and TV) free of
charge to Comelec. (Section 8, RA 9006)
Limitations In Broadcasting of Election Accounts – Comelec
shall ensure that radio and television or cable television
broadcasting entities 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 news worthy events and views on
matter of public interest.
Restrictions on Media Practitioners – any mass media
columnist, commentator, reporter 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 from
his/her work as such during the campaign period. Any media
practitioner who is an official of a political party or member of the
27
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.
RA 9006, Section 5 Election surveys – refers to the measurements
of opinions and perceptions of the voters as regards a candidate’s
popularity, qualifications, platforms or matter of public discussion
in relation the election, including voters’ preference or candidates
or publicly discussed issues during the campaign period. The
person or entity who publishes a survey is required to include the
following information:
 Name of the person, candidate, party or organization
who commissioned or paid the survey;
 Name and address of the person or polling firm from
who conducted the survey
 Period during which the survey was conducted,
methodology used, including the number or individual
respondents and the areas from which they were
selected and the specific questions asked
 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 citizen arm.
Posting of Campaign Materials – political parties and party-list
groups may be authorized by the Comelec common poster areas
for their candidates in not more than 10 public places such as
plazas, markets, barangay centers and the like, wherein, candidates
can post, display or exhibit election propaganda. The size of the
poster areas shall not exceed 12 x 16 feet or it 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. (Section 9, RA 9006)
RA 9189, Section 15 – Regulation of Campaign Abroad – The use
of campaign materials, as well as the limits on campaign spending
shall be governed by the laws and regulations applicable to the
Philippines.
Social Weather Station, Inc. and Pulse Asia, Inc. petitioners vs.
Comelec 755 SCRA 124 - Comelec in its Resolution No. 9674
direct SWS and Pulse Asia as well as other survey firms of similar
circumstance, to submit to Comelec the names of all
commissioners and payors of all surveys published from Feb. 12,
2013 to April 23, 2013, including those of their “subscribers. UNA
wrote SWS to be furnished with the identity of persons who paid
for the pre-election survey… SWS replied but did not disclose the
names. Hence, UNA wrote Comelec to direct SWS of furnish him
with the names pursuant to its Comelec Resolution 9674.
Rationale behind the power of Comelec under RA 9006 –
implements the constitutional desire to “guarantee equal access to
opportunity for public service…”The Fair Elections Act represents
the legislature’s compliance with the requirement of Article X111,
Section 1..the mandate for Congress to give highest priority to the
enactment of measures that reduce political inequalities by
equitably diffusing wealth and political power for the common
good. Further, the constitutional desire to “guarantee equal access
to opportunities for public service is the same intent that animates
the Constitution’s investiture in Comelec of the power to
“supervise or regulate the enjoyment or utilization of all franchises
or permits for the operation of transportation and other public
utilities, media of communication or information, all grants,
special privileges, or concessions granted by the Government or
any subdivision….
The inclusion of Election Surveys in RA 9006 in the list of items
regulated is a recognition that ES are not a mere descriptive
aggregation of data. Publishing surveys are a means to shape the
preference of voters, inform the strategy of campaign machineries,
and ultimately, affect the outcome of elections. Election surveys
have a similar nature as election propaganda. They are expensive,
normally paid for by those interested in the outcome of the
elections, and have tremendous consequences on election results.
Effects (although conflicting) of survey on voters behavior have
been postulated: 1) BANDWAGON effect where the “electors rally
to support the candidate leading in the polls. This assumes that
knowledge of a popular tide will likely change voting intentions in
favor of the frontrunner, that many electors feel more comfortable
supporting a popular choice or that people accept the perceived
collective wisdom of other as being enough reason for supporting a
candidate. 2) UNDERDOG effect were electors rally to support
the candidate trailing in the polls. This shift can be motivated by
sympathy for the perceived underdog. 3) MOTIVATING effect
where individuals who had not intended to vote are persuaded to
do so. 4) DEMOTIVATING effect where voters abstain from
voting out of certainty that their candidate or party will win. 5)
another behavior known as STRATEGIC voting, where voting is
influenced by the chances of winning. And 6) FREE-WILL effect
where voters cast their ballots to prove the polls wrong. Voters act
in accordance with what is perceived to be an existing or emerging
state of affairs with respect to how candidates are faring.
I-United Transport Koalisyon (1-UTAK), vs. Comelec 755
SCRA 441 – Section 9 of RA 9006 (Fair Elections Act) was passed
which reads: (Read above)… On January 15, 2013, the Comelec
promulgated for the rules implementing RA 9006 in connection
with the May 13, 2013 national and local elections and subsequent
elections. Section 7 thereof, which enumerates the prohibited
forms of election propaganda provides – “To post, display or
exhibit any election campaign or propaganda material outside of
authorized common poster areas, in public places or in private
properties without the consent of the owner thereof.
(g) Public place referred to in the previous section (f) include any
of the following: 5. Public utility vehicles such as buses, jeepneys,
trains, taxi cabs, ferries, pedicabs and tricycles, whether motorized
or not; and 6. Within the premises of public transport terminals,
such as buss terminals, airports, seaports, docks, piers, train
stations and the like. ….Any violation shall cause the revocation of
the public utility franchise and will make the owner and/or jeepney
operator of the transportation service liable for an election offense.
In a letter, petitioner 1-Utak through its president sought
clarification from Comelec as regards the application of Section 7
(g) items 5 and 6, of Comelec Resolution No. 9615 in connection
with privately-owned public utility vehicles (PUV’s) and transport
terminals. Petitioner requested Comelec to reconsider the
implementation of the assailed provisions and allow private owners
of PUV’s and transport terminals to post election campaign
materials on their vehicles and transport terminals.
Comelec denied asserting that privately-owned PUVs and transport
terminals are public places that are subject to its regulation
pursuant to the powers vested in it. Comelec points out that
PUV’s and private transport terminals hold a captive audience –
“the commuters, who have no choice but be subject to the blare of
political propaganda.
Issues raised before the Supreme Court 1) Whether the Resolution
9615 violates the right to free speech of the owners of PUVs and
transport terminals. Ruling: Violative.. It is basic that if a law or an
administrative rule violates any norm of the Constitution, that
issuance is null and void and has no effect. 2) Whether the
Resolution is void as a restraint to free speech and expression for
failure to satisfy the O’Brien Test. Ruling: Resolution constitute as
prior restraint and unduly infring on the fundamental right of the
people to freedom of speech. Comelec’s supervisory power does
not extend to the very freedom of an individual to express his
preference of candidates in an election by placing election
campaign stickers on his vehicle (Adiong). 3) Whether the
Constitutional objective to give an equal opportunity to inform the
electorate is not impaired by posting political advertisements on
PUVs and transport terminals. 4) Whether ownership of facilities
is different and independent from the franchise or operation of the
public utility, the former being beyond the power of regulation by
the Comelec. Ruling: The Comelec’s constitutionally delegated
powers of supervision and regulation do not extend to the
ownership per se of PUVs and transport terminals, but only to the
franchise or permit to operate the same. There is a marked
difference between the franchise or permit to operate transportation
for the use of the public and the ownership per se of the vehicles
used for public transport.
Captive-audience doctrine states that when a listener cannot, as a
practical matter, escape from intrusive speech, the speech can be
restricted. The doctrine recognizes that a listener has a right not to
be exposed to an unwanted message in circumstances in which the
communication cannot be avoided. The prohibition under the
assailed provision of the Comelec Resolution is not justified under
the captive audience doctrine…the commuters are not forced or
compelled to read the election campaign materials posted on the
PUVs and transport terminals. Nor are they incapable of declining
28
to receive the message contained in the posted election campaign
materials since they may simply avert their eyes if they find the
same unbearably intrusive.
BP881, Section 95 – Prohibited Contributions. No contribution
for purposes of partisan political activity shall be made directly or
indirectly by any of the following:
(a) Public or private financial institutions: Provided,
however, That nothing herein shall prevent the
making of any loan to a candidate or political
party by any such public or private financial
institutions legally in the business of lending
money, and that the loan is made in accordance
with laws and regulations and in the ordinary
course of the business;
(b) Natural and juridical persons operating a public
utility or in possession of or exploiting any
natural resources of the nation;
(c) Natural and juridical persons who hold contract
or sub-contract to supply the government or any
of its divisions, subdivisions or instrumentalities,
with goods or services or to perform construction
or other works;
(d) Natural and juridical persons who have been
granted franchises, incentives, exemptions,
allocations or similar privileges or concessions
by the government or any of its divisions,
subdivisions or instrumentalities, including
government-owned or controlled corporations.
(e) Natural and juridical persons who, within the one
year prior to the date of the election, have been
granted loans or other accommodations in excess
of 100K by the government or any of its
divisions, subdivisions or instrumentalities
including government owned or controlled
corporations.
(f) Educational institutions which have received
grants of public funds to no less than 100K;
(g) Officials or employees in the Civil Service, or
members of the Armed Forces of the Philippines;
(h) Foreigners and foreign corporations.
It shall be unlawful for any person to solicit or receive
any contribution from any of the persons or entities enumerated
herein.
ABS-CBN 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 officially cast
their ballots. 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.
Section 5.5 of RA 9006 (Fair Elections Law) provides
for the requirements for the taking of an exit polls:
 pollsters shall not conduct their survey within 50 meters
from the polling place whether said survey is taken in a
home, dwelling place and other places;
 pollsters shall wear distinctive clothing;
 pollsters shall inform the voters that they may refuse to
answer; and
 the result of the exit 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 STATION vs. COMELEC 357 SCRA 496
– This case involved the issue on election surveys. 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
candidate’s 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.
PREMATURE CAMPAIGNING
In Francisco Chavez v. Comelec et. al. G.R. No. 162777 31
August 2004, Chavez brought before the SC a Petition for
Prohibition with prayer for the issuance of a writ of preliminary
injunction as taxpayer and citizen asking the Court to enjoin the
Comelec from enforcing Section 21 of its Resolution No. 6520
dated 06 January 2004. (Sec. 32 provides: All propaganda
materials such as posters, streamers, stickers or paintings on walls
and other materials showing the picture or name of a person and all
advertisements on print, in radio or on television showing the
image or mentioning the name of a person, who subsequent to the
placement or display thereof becomes a candidate for public office
shall be immediately removed by said candidate and radio station,
print media or television station within 3 days after the effectivity
of these implementing rules; otherwise, he and the said radio
station, print media or television station shall be presumed to have
conducted premature campaigning in violation of Sec. 80 of the
OEC)
Chavez on various dates entered in formal agreement
with certain establishment to endorse their products and pursuant
thereto, 3 bill boards were set up on some strategic areas in Metro
Manila. Subsequently on 30 December 2003, Chavez filed his
certificate of candidacy for the position of Senator. On 06 January
2004, Comelec issued Resolution No. 6520 which contained
Section 32. Comelec directed Chavez to comply with the said
provision and replied how he may have violated the assailed
provision. Another letter was sent seeking exemption from the
application of Section 32, considering that the billboard adverted to
are mere product endorsements and cannot be construed as
paraphernalia for premature campaigning under the rules.
Comelec replied by informing him to remove or cover
the said billboards pending the resolution of the Comelec on his
request for exemption. Aggrieved, Chavez sent to the SC via a
petition for prohibition seeking the said provision as
unconstitutional based on the following grounds –
 It was a gross violation of the non-impairment clause
 An invalid exercise of police power
 In the nature of an ex post facto law
 Contrary to the Fair Elections Act
 Invalid due to overbreadth
As to the 1st issue – is Section 32 of Comelec Resolution No. 6520
an invalid exercise of police power? Petitioner argues: the
billboards (even if it bears his name) do not at all announce his
candidacy for any public office nor solicit for such candidacy from
the electorate; they are mere product endorsements and not
election propaganda. Prohibition is not within the scope of power
of the Comelec.
RULING – police power is an inherent attribute of sovereignty, is
the power to prescribe regulations to promote the health, morale,
peace, education, good order or safety of the general welfare of the
29
people. The primary objective of the provision is to prohibit
premature campaigning and to level the playing field for
candidates of public office, to equalize the situation between
popular or rich candidates, on one hand and lesser-known or
poorer candidates, on the other, by preventing the former from
enjoying undue advantage in exposure and publicity on
account of their resources and popularity. This is a valid
reason for the exercise of police power as held in the
Philippines Press Institute v. Comelec case.
It is true that when petitioner entered into the contract or
agreements to endorse certain products, he acted as a private
individual and had all the right to lend his name and image to these
products. However, when he filed his COC for senator, the
billboards featuring his name and image assumed partisan political
character because the same directly promoted his candidacy. If
subject billboards were to be allowed, candidates for public office
whose name and image are used to advertise commercial products
would have more opportunity to make themselves known to the
electorate, to the disadvantage of other candidates who do not have
the same chance of lending their faces and names to endorse
popular commercial products as image models. Similarly, an
individual intending to run for public office within the next few
months, could pay private corporations to use him as their image
model with the intention of familiarizing the public with his name
and image even before the start of the campaign period. This,
without doubt, would be a circumvention of the rule against
premature campaigning..
Section 32 neither violated the non-impairment clause as this must
yield to the loftier purposes targeted by the Government.
Equal opportunity to proffer oneself for public office,
without regard to the level of financial resources one may
have at his disposal, is a vital interest to the public. The SC
has stressed that contracts affecting public interest contain
an implied reservation of the police power as a postulate of
the existing legal order. This power can be activated at
anytime to change the provisions of the contract, or even
abrogate it entirely, for the promotion or protection of the
genera; welfare. Such an act will not militate against the
impairment clause. Which is subject to and limited by the
paramount police power.
On the issue that Sec. 32 of the Comelec Resolution is in the nature
of an ex post facto law. Not ex post facto – the offense as expressly
prescribed in Section 32, is the non-removal of the described
propaganda materials three (3) days after the effectivity of the said
Resolution. If the candidate for public office fails to remove such
propaganda materials after the given period, he shall be liable
under Section 80 of the OEC for premature campaigning.
Nowhere is it indicated in the said provision that it shall operate
retroactively.
On the issue that the provision was a violation of the Fair Elections
Act as billboards are already permitted as lawful election
propaganda. It was ruled that the provision does not prohibit
billboards as lawful election propaganda. It only regulates their
use to prevent premature campaigning and to equalize, as much as
practicable, the situation of all candidates by preventing popular
and rich candidates from gaining undue advantage in exposure and
publicity on account of their resources and popularity. Comelec
was only doing its duty under the law (Sec. 3 and 13 of the Fair
Elections Act on lawful propaganda)
Section 80 of the OEC provides “it shall be unlawful for any
person, whether or not a voter or candidate or for any party, or
association of persons, to engage in an election campaign or
partisan political activity, except during the campaign period.”
In Lanot v. Comelec, 507 SCRA 114 (2006) , the Supreme Court
explained premature campaigning as follows:
“Thus, the essential elements for violation of Section 80
of the OEC are: (1) the person engages in an election campaign
or partisan political activity; (2) the act is designed to promote
the election or defeat of a particular candidate or candidates;
(3) the act is done outside the campaign period.”
The second element requires the existence of a
“candidate”. Under Section 79(a), a candidate is one who “has
filed a certificate of candidacy” to an elective public office. Unless
one has filed his CoC, he is not a “candidate.” The third element
requires the campaign period has not started when the election
campaign or partisan political activity is committed.
Assuming that all candidates to a public office file their
CoC on the last day, which under Section 75 of the OEC is the day
before the start of the campaign period, then no one can be
prosecuted for violation of Section 80 for acts done prior to such
last day. Before such last day, there is no “particular candidate or
candidates” to campaign for or against. On the day immediately
after the last day of filing, the campaign period starts and Section
80 ceases to apply since Section 80 covers only acts done
“outside” the campaign period.
In this case, there is no dispute that Eusebio’s acts of
election campaigning or partisan political activities were
committed outside the campaign period. The only question is
whether Eusebio, who filed his CoC on 29 December 2003, was a
“candidate” when he committed those acts before the start of the
campaign period on 24 March 2004.
Section 11 of RA 8436, moved the deadline for the
filing of CoC to 120 days before election day. Thus, the original
deadline was moved from 23 March 2004 to 2 January 2004 or 81
days earlier. The crucial question is: Did this change in the
deadline for the filing the CoC make one who filed his
certificate of candidacy before 2 January 2004 immediately
liable for violation of Section 80 if he engaged in election
campaign or partisan political activities prior to the start of the
campaign period on 24 March 2004?
Thus, because the early deadline of 2 January 2004 for
purposes of printing of official ballots, Eusebio filed his CoC on 29
December 2003. Congress, however, never intended the filing of a
CoC before 2 January 2004 to make the person filing to become
immediately a “candidate” for purposes other than the printing of
ballots. This legislative intent prevent the immediate
application of Section 80 of the OEC to those filing to meet the
early deadline. The clear intention of Congress was to preserve
the “election periods as. . . . . fixed by existing law” prior to RA
8436 and that one who files to meet the early deadline “will still
NOT be considered as a candidate.”
In the resolution of the motion for reconsideration in Penera v.
Comelec 599 SCRA 609, the Supreme Court further explained the
Lanot ruling on premature electioneering:
“The campaign period for local officials began on 30
March 2007 and ended on 12 May 2007. Penera filed her CoC on
29 March 2007. Penera was thus a candidate on 29 March 2007
only for purposes of printing the ballots. On 29 March 2007, the
law still did not consider Penera a candidate for purposes other
than the printing of ballots. Acts committed by Penera prior to 30
March 2007, the date when she became a “candidate”, even if
constituting election campaigning or partisan political activities,
are not punishable under Section 80 of the OEC. Such acts are
within the realm of a citizen’s protected freedom of expression.
Acts committed by Penera within the campaign period are not
covered by Section 80 as Section 80 punishes only acts outside the
campaign period.”
Penera v. Comelec 599 SCRA 609. The issue on
premature campaigning was raised. Facts show that Penera and
Andanar were mayoralty candidates in Sta. Monica in the last May
14, 2007 elections. Andanar filed before the Office of the
Regional Election Director, Caraga Region, Region XIII, a petition
for disqualification against Penera for unlawfully engaging in
election campaigning and partisan political activity prior to the
commencement of the campaign period.
The Petition alleged that on 29 March 2007, a day before the start
of the authorized campaign period on 30 March 2007, Penera and
her partymates went around the different barangays in Sta. Monica,
announcing their candidacies and requesting the people to vote for
them on the day of the elections. Penera alleged that the charge
was not true although having admitted that a motorcade did take
place which was simply in accordance with the usual practice in
nearby cities and provinces, where the filing of COC was preceded
by a motorcade, which dispersed soon after the completion of such
filing. Penera in her defense cited Barroso v. Ampig (385 Phil
2237; 328 SCRA 530) wherein the Court ruled that a motorcade
held by candidates during the filing of their COC’s was not a form
of political campaigning. Pending the disqualification case, Penera
was proclaimed as winner and assumed office.
Comelec ruled that Penera engaged in premature campaigning in
violation of Section 80 and disqualified Penera from continuing as
a mayoralty candidate. The SC ruled no abuse of discretion on the
part of the Comelec and held that the conduct of a motorcade is a
form of election campaign or partisan political activity which fall
squarely under of Section 79 of the OEC.
Penera moved for reconsideration arguing that she was not yet a
candidate at the time of the supposed premature campaigning,
since under Section 15 of RA 8436 (the law authorizing the
Comelec to use an automated election system for the process of
voting, counting of votes, and canvasing/consolidating the results
30
of the national and local elections), as amended by RA 9369, is not
officially a candidate until the start of the campaign period.
In granting Penera’s MR, the SC En Banc held that Penera did
not engage in premature campaigning and should thus, not be
disqualified as a mayoralty candidate. The Court said-
(a) The Court’s 11 September 2009 Decision (or
the assailed Decision) considered a person who files a certificate of
candidacy already a “candidate” even before the start of the
campaign period. This is contrary to the clear intent and letter of
Section 15 of RA 8436, as amended, which stated that a person
who files his certificate of candidacy will only be considered a
candidate at the start of the campaign period, and unlawful
acts or omission applicable to a candidate shall take effect only
upon the start of such campaign period. In applying the said
law –
(1) The effective date when partisan
political acts become unlawful
as to a candidate is when the campaign
period starts. Before the start of the
campaign period, the same partisan
political acts are lawful.
(2) Accordingly, a candidate is
liable for an election offense
only
for acts done during the campaign period,
not before. In other words, election
offenses can be committed by a candidate
only upon the start of the campaign period.
Before the start of the campaign period, such
election offenses cannot be committed.
Since the law is clear, the Court has no recourse but to
apply it. The forum for examining the wisdom of the law, and
enacting remedial measures, is not the Court but the Legislature.
(b) Contrary to the assailed Decision, Section
15, of RA 8436, as amended, does not provide that partisan
political acts done by a candidate before the campaign period are
unlawful, but may be prosecuted only upon the start of the
campaign period. Neither does the law state that partisan political
acts done by a candidate before the campaign period are
temporarily lawful, but becomes unlawful upon the start of the
campaign period. Besides, such a law as envisioned in the
Decision, which defines a criminal act and curtails freedom of
expression and speech, would be void for vagueness.
© That Section 15 of RA 8436 does not
expressly state that campaigning before the start of the campaign
period is lawful, as the assailed decision asserted, is no moment. It
is a basic principle of law that any act is lawful unless expressly
declared unlawful by law. The mere fact that the law does not
declare an act unlawful ipso facto means that the act is lawful.
Thus, there is no need for Congress to declare in Section 15 of RA
8436 that partisan political activities before the start of the
campaign period is lawful. It is sufficient for Congress to state that
“any unlawful act or omission applicable to a candidate shall take
effect only upon the start of the campaign period.” The only
inescapable and logical result is that the same acts, if done before
the start of the campaign period, are lawful.
(d) The Court’s 11 September 2009 Decision
further explained it’s ruling in Lanot v. Comelec (G.R. No.
164858, 16 November 2006). Lanot was decided on the ground
that one who files a certificate of candidacy is not a candidate until
the start of the campaign period. This ground was based on the
deliberations of the legislators who explained that the early
deadline for filing COC under RA 8436 was set only to afford time
to prepare the machine readable ballots, and they intended to
preserve the existing election period, such that one who files his
COC to meet the early deadline will still not be considered as a
candidate.
When Congress amended RA 8436, Congress decided to expressly
incorporate the Lanot doctrine into law, thus, the provision in
Section 15, of RA 8436 that a person who files his certificate of
candidacy shall be considered a candidate only at the start of
the campaign period. Congress wanted to insure that no person
filing a certificate of candidacy under the early deadline required
by the automated election system would be disqualified or
penalized for any partisan political act done before the start of the
campaign period. This provision cannot be annulled by the Court
except on the sole ground of its unconstitutionality. The assailed
Decision, however, did not claim that this provision is
unconstitutional. In fact, the assailed Decision considered the
entire Section 15 good law. Thus, the Decision was self-
contradictory – reversing Lanot but maintaining the
constitutionality of the said provision.
In Lanot vs. Comelec 507 SCRA 114, the Court ruled that there
are two aspects of a disqualification case:
1) Electoral aspect determines whether the offender
should be disqualified from being a candidate or from
holding office. Proceedings are summary in character
and require only clear preponderance of evidence. An
erring candidate may be disqualified even without prior
determination of probable cause in a PI. The electoral
aspect may proceed independently of the criminal
aspect and vice-versa.
2) Criminal aspect determines whether there is probable
cause to charge a candidate for an election offense. If
there is probable cause, the Comelec through its Law
Department, files the criminal information before the
proper court. Proceedings before the proper court
demand a full-blown hearing and require proof beyond
reasonable doubt to convict. A criminal conviction
shall result in the disqualification of the offender, which
may even include disqualification from holding a future
public office.
CANVASSING BODIES
Manual Canvassing
Section 221, BP 881/RA 6646, Section 20 - Boards of Canvassers
(Local Boards). There shall be a board of canvassers for each
province, city and municipality as follows:
(a) Provincial Board of Canvassers – The provincial
board of canvassers shall be composed of the
provincial election supervisor or a lawyer in the
regional office of the Commission, as chairman,
the provincial fiscal, as vice-chairman, and the
provincial superintendent of schools as member.
(b) City Board of Canvassers – The city board of
canvassers shall be composed of the city election
registrar or a lawyer of the Commission, as
chairman, the city fiscal, as vice-chairman, and
the city superintendent of schools, as member. In
cities with more than one election registrar, the
Commission shall designate the election registrar
as chairman.
(c) Municipal Board of Canvassers. – The municipal
board of canvassers shall be composed of the
election registrar or a representative of the
Commission, as chairman, the municipal
treasurer, as vice-chairman and the most senior
district school supervisor or in his absence a
principal of the school district or the elementary
school, as member.
FOR AES Electronic Canvassing – 1)CBOC and MBOC shall
canvass the votes for the president VP, senators and parties,
organization or coalitions participating under the party-list system
by consolidating the electronically transmitted results contained in
the data source devices used in the printing of the ER. Upon
completion of the canvass, it shall print the certificate of canvass of
votes for Pres, VP, senators and members of the HR and elective
provincial officials and thereafter, proclaim the elected city or
municipal officials, as the case may be.
“xxx xxx The municipal, city, district and provincial
certificate of canvass of votes shall each be supported by a
SOV.”
“Within 1-hour after canvassing, the Chairman of the
district or provincial Board of Canvassers or the city board of
canvassers of those cities which comprise one or more legislative
districts shall electronically transmit the COC to the
Commission sitting as the national board of canvassers for
senators and party-list rep and to the Congress as the NBOC for the
president and VP directed to the President of the Senate.
“The certificate of canvass transmitted
electronically and digitally signed shall be considered as official
election results and shall be used as the basis for the
proclamation of a winning candidate”. (RA 9369).
3) Comelec – as NBOC for Senators and Party-List
Representatives – Chairman and members of the
Commission sitting en banc. It shall canvass the results
by consolidating the certificates of canvass
electronically transmitted and thereafter proclaim the
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winning candidates for senators and party-list rep.
(Section 27, RA 9369)
4) Congress – Senate and HR in joint public session as
NBOC for President and VP. Senate President shall
open all the certificates not later than 30 days after the
day of the election. (Section 28, RA 9369)
Each of the BOC shall be assisted by an Information
Technology – capable person authorized to operate the
Consolidation and Canvass System (CCS), to be known as CCS
operators who shall be deputized by the Commission. (Section 7,
RA 9369)
BP881, Section 222. Relationship with Candidates and other
members of the Board. The chairman and the members of the
boards 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 the said board, or to any member of the same
board.
BP881, Section 224. Feigned Illness. Any member of the board of
canvassers feigning illness in order to be substituted on election
day until the proclamation of the winning candidates shall be guilty
of an election offense.
Section 30, RA 7166 – Congress as the National Board of
Canvassers for the election of President and Vice-President:
Determination of Authenticity and Due Execution of Certificates of
Canvass. –
1) Congress for Pres. & VP (Sec. 4, Article VII)
2) Comelec – Senators and Regional Officials –
3) PBC – Members of the HR and provincial officials
(composed of the PES, Provincial Prosecutor and
provincial official of the DepEd
4) District BOC in each legislative district in MM –
members of the HR and municipal officials
5) City and MBOC – member of the HR, city and
municipal officials composed of the city or municipal
EO, City Prosecutor and DepEd Superintendent
RA 9189, Section 18(4) – A Special Board of Canvassers
composed of a lawyer preferably of the Commission as chairman,
a senior career office from any of the government agencies
maintaining a post abroad and, in the absence of another
government officer, a citizen of the Philippines qualified to vote
under this Act deputized by the Commission, as vice-chairman and
member secretary, respectively, shall be constituted to canvass
election returns submitted to it by the Special Boards of Elections
Inspectors. Xxx xxx “The Certificates of Canvass and the
accompanying Statements of Votes as transmitted via facsimile,
electronic mail and any other means of transmission equally safe,
secure and reliable shall be the primary basis for the national
canvass.
CERTIFICATE OF VOTES, STATEMENT OF VOTES,
ELECTION RETURNS AND DISTRIBUTION
Certificate of Votes – is an election document issued by the BEI’s
after the counting and announcement of the results and before
leaving the polling place upon request of the accredited watcher.
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 marked by each member of the
board.
Typoco vs. Comelec 614 SCRA 391 – In Garay v. Comelec 261
SCRA 222 (1996) the Court held that “(a) certificate of votes does
not constitute sufficient evidence of the true and genuine results of
the election; only election returns are, pursuant to Sections 231,
233-236 and 238 of BP881.” Again in De Guzman v. Comelec 426
SCRA 698 (2004) the Court stated that, in an election contest
where the correctness of the number of votes is involved, the best
and most conclusive evidence are the ballots themselves; where the
ballots can nor be produced or are not available, the election
returns would be the best evidence.”
Doromal vs. Biron/Comelec 613 SCRA 160 (2010) – the
certificate of votes, which contains the number of votes obtained
by each candidate, is issued by the BEI upon the request of the
duly accredited watcher pursuant to Section 16 of RA 6646.
Relative to its evidentiary value, Section 17 of RA 6646 provides
that Sections 235 and 236 of BP 881 notwithstanding, the
Certificate of Votes 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.
Purpose of requiring authentication of at least 2 members of the
BOC – to safeguard the integrity of the certificate from the time it
is issued by the BEI to the watcher after the counting of votes at
the precinct level up to the time that it is presented to the board of
canvassers to proved tampering.
FUNCTIONS OF THE CERTIFICATE OF VOTES
 Prevent or deter the members of the BEI or other
official from altering the statement because they know
of the existence of such certificate
 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 copies of the same
be used for the canvass
 To serve as evidence of fraud in election protest 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 or reflected in the ER.
Certificate of Canvass – is based on the SV and which serves as
basis for proclamation.
DISPOSITION OF ELECTION RETURNS
Under Manual Elections
Election Returns and Distribution – Section 27 of RA 7166, as
amended by RA 8045 and RA 8173, provides that in the election
for Pres., VP, Senators and members of the HR, the ER shall be
distributed as follows -
 1st CBO or MBOC
 2nd posted on a wall within the premises of the polling
place
 3rd copy congress, directed to the Pres. of the Senate
 4th to Comelec
 5th to Dominant majority party as may be determined
by the Comelec in accordance with law
 6th to Dominant minority party as may be determined by
Comelec in accordance with law
 7th Citizens Arms authorized by the Comelec to
conduct an unofficial count to be deposited inside the
ballot box.
 8th deposited inside the compartment of the ballot box
for valid ballots.
For Local officials – (1) CBOB or MBOC (2) posted on the wall
(3) Comelec (4) PBOC (5) DMajorityP (6) DMinorityP (7)
Citizen’s Arms for unofficial count (8) inside ballot box.
The 30 certified printed copies for national positions –
14 to 14 accredited major and national parties in accordance with a
voluntary agreement among them. Otherwise Comelec shall
decide. Next 3 copies to the 3 accredited major local parties (same
provision). Next 5 copies to the national broadcast or print media
entities as may equitably be determined by the Commission. Next
2 copies to local broadcast & print media and next 4 copies to
major citizen arms and accredited citizen arm. Next copy to be
place inside the ballot box and last copy to the PBC.
Electronic Returns for AES – Section 19 RA 6369 amended Sec.
18 of RA 8436. “Sec. 22” – Electronic Returns – each copy of the
printed election returns shall bear the appropriate control marks to
determine the time and place of printing. Each copy shall be
signed and thumbmarked by all the members of the BEI and
watchers present. Xxx xxxx xxx . The chairman of the boards
shall then publicly read and announce the total number of
registered voters who actually voted and the total numbers of votes
obtained by each candidate based on the election returns.
“Thereafter, the copies of the election returns shall be
sealed and placed in the proper envelopes for distribution.”
“Immediately after the 8th copy is printed, the poll clerk
shall announce the posting of said copy on the wall within the
premises of the polling place or counting center, which must
sufficiently be lighted and accessible to the public. Any person
may view or capture an image of the election return by means
of any data capturing device such as, but not limited to cameras
at any time of the day for 48 hours following its posting. After
32
such period, the chairman of the BEI shall detach the ER from the
wall and keep the same in his custody to be produced as may be
requested by any voter for image or data capturing or for any
lawful purpose as may be ordered by competent authority.”
“Within one (1) hour after the printing of the ER,
the chairman of the BEI or any official authorized by the Comelec
shall, in the presence of watchers and representatives of the
accredited citizens arm, political parties/candidates, if any,
electronically transmit the precinct results to the respective
levels of the BOC, the dominant majority and minority party, to the
accredited citizen’s arm, and to the Kapisanan ng mga Broadcaster
ng Pilipinas (KBP).”
The election results at the city/municipality
canvassing centers shall be transmitted in the same manner by
the election officer or any official authorized by the
commission to the district or provincial canvassing centers.
“The election returns transmitted electronically and digitally
signed shall be considered as official election results and shall
be used as the basis for the canvassing of votes and the
proclamation of a candidate.”
After the electornic results have been transmitted
additional copies not to exceed 30 may be printed and given to
requesting parties at their own expenses. (RA 9369)
Petition to Declare a postponement, failure or annulment of
elections and call for a special elections in accordance with
Sections 5,6, & 7 of the OEC as amended by Sec. 4 of RA 7166.
Sec. 5 of the OEC provides for the grounds for
declaring a postponement of elections that is when for -
 any serious cause such as violence,
 terrorism,
 loss or destruction of election paraphernalia or records,
 FM and other analoguous circumstances of such a
nature that the holding of a HOPE-FRECRE should
become impossible in any political subdivision.
Jurisdiction - 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.
Sec. 6 on the other hand, prescribes the conditions for
the exercise of the power to declare a Failure of Elections. As
reiterated in Dibaratun vs. Comelec 611 SCRA 367, citing
Banaga Jr. v. Comelec 336 SCRA 701 (2000) also in Canicosa v.
Comelec 282 SCRA 517 - to declare a failure of elections,
either of these three (3) instances should be present
conformably with Section 6 of the OEC –
 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;
 the election in any polling place has been suspended
before the hour fixed by law for the closing of voting
on account of FM, terrorism, fraud or other analogous
causes
 after the voting and during the preparation and
transmission of the ER or in the custody of canvass
thereof, such election results in a failure to elect on the
same grounds.
Based on the foregoing provisions, two (2) conditions must
concur to declare a failure of elections –
 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
 the votes not cast would affect the results of the
elections (Carlos. V. Angeles)
In the same case of Coquilla v. Comelec, 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
canvas of the election returns cause a failure to elect. And, the
term failure to elect means nobody emerged as a winner.”
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 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.
Sec. 4 of RA 7166 (An Act Providing for the Synchronized
National and Local Elections) provides 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 as ruled in the
case of Sanchez v. Comelec 193 SCRA 849.
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 RV 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 its 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 the 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.
Pasandalan vs. 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 the petition must
specifically allege the essential grounds that would justify the
same. Otherwise, the Comelec can dismiss the petition
outright for lack of merit and no grave abuse of discretion can
be attributed to it. The Comelec is mandated to exercise this
power with utmost circumspect to prevent disenfranchising voters
and frustrating the electorate’s well.”
In this case, Pasandalan filed a petition for declaration
of failure of election on the ground that while voting was going on
Cafgu’s indiscriminately fired their firearms causing the voters to
panic and leave the polling places without casting their votes and
taking advantage of the situation, the supporters of his opponent
took the official ballots and filled them up with his name, the BEI’s
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 SC held that 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, petitioner 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 copies 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, the fact that an election is actually held prevents as
a rule, a declaration of failure of elections, 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 in Brgy. Maidan,
Municipality of Tugaya, Lanao del Sur during the 1997 Brgy.
Elections, the election was reset to 30 August 1997. Due to the
33
prevailing tension in the locality, the voting started only at around
9 p.m. and lasted until the early morning of the following day.
Basher filed a petition for the nullification of the election which
was 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.
Banaga Jr. vs. Comelec 336 SCRA 701, the fact that a verified
petition has been filed does not mean that a hearing on the case
should first be held before Comelec can act on it. The petition
must show on its face that the conditions necessary to declare a
failure of elections are present.
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 in
Maguindanao. During the pendency of the hearing of said petition,
the Comelec proclaimed 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 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 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: It
was ruled that the fact that the 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 election
results and/or declaration of failure of elections. The cases relied
upon by 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 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 technical
examination of election documents and compare and analyze
voters’ signatures and thumbprints in order to determine whether
or not the elections had indeed been free, honest and clean.
PRE-PROCLAMATION CONTROVERSY
BP 881, Section 242 – The Commission shall have exclusive
jurisdiction of all pre=proclamation controversies. It may motu
propio and after due notice and hearing, order the partial or total
suspension of the proclamation of any candidate-elect or annual
partially or totally any proclamation, if one has been made, as the
evidence shall warrant in accordance with the succeeding sections.
Matalam v. Comelec 271 SCRA 733/BP 881 – a pre-proclamation
controversy is defined, as a general rule, any question pertaining to
or affecting the proceedings of the BOC which may be raised by
any candidate or any registered political party or coalition of
political before the board or directly with the Comelec, on any
matter raised under Sections 233 (when ER are delayed, lost or
destroyed), 234 (material defects in the ER), 235 (when ER
appear to be tampered with or falsified) and 236 (discrepancies
in the ER) of the OEC in relation to the preparation,
transmission, receipt, custody and appreciation of the ER and
Certificate of Canvass.
Section 17, RA 6646, 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.
Authority of the Comelec in PPC – the Commission exercises
authority to decide PPC in two instances –
 in appeals from the ruling of the BOC which is
generally of two types first type are on questions
contesting its composition or proceedings and appeal
therefrom must be taken by the contestant adversely
affected within 3 days from such ruling .and the second
type refers to ruling on questions contesting ER. 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, and within an unextendible
period of 5 days thereafter, he has to take the appeal to
the Comelec
 in petitions directly filed with it.
EXCEPTIONS: Section 15 of RA 7166 provides that for purposes
of the elections for Pres. and VP, Senators and members of the HR,
no Ppcases shall be allowed on matters relating the P,T,R,C, and A
of the ER or the certificate of canvass, as the case may be.
HOWEVER, this does not preclude the authority of the appropriate
canvassing body motu proprio or upon written complaint of an
interested person to correct manifest error in the certificate of
canvass or ER before it.
In the case of Pimentel v. Comelec, Section 68 of RA
9369 significantly amended Section 15 of RA 7166 by adding an
excepting phrase to the general prohibition against pre-
proclamation controversies in elections for Pres., VP, Senators and
members of HR. According to the amended Section 15, “pre-
proclamation cases involving the authenticity and due execution of
COC are now allowed” pursuant to Section 30 of RA 9369. The
general rule is still, that “pre-proclamation cases on matter relating
to the preparation, transmission, receipt, custody and appreciation
of ER or COC are still prohibited. The recognize exceptions to
the said prohibition are: 1) correction of manifest error; 2)
question affecting the composition or proceedings of the BOC
and 3) determination of the authenticity and due execution of
the COC.
Sano Jr. vs. Comelec 611 SCRA 475 – It is settled that a pre-
proclamation controversy is summary in character; indeed, it is a
policy of the law that pre-proclamation be promptly decided, so as
not to delay canvass and proclamation. The board of canvassers
will not look into allegations of irregularity that are not apparent
on the face of ER’s that appear otherwise authentic and duly
accomplished.
Macabago v. Comelec 392 SCRA 178 – it was held that issues in
a PPC is properly limited to challenges aimed against the BOC and
proceedings before said board relative to particular ER to which
respondent should have made particular verbal objections
subsequently reduced in writing.
BP 881 Section 243.Comelec Rules of Procedure Rule 27 (4) -
SCOPE/ISSUES that may be raised in a PRE-
PROCLAMATION CONTROVERSY
 Illegal composition or proceedings of the BOC
 The canvassed ER 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 mentioned in Sec. 233-236
 The ER were prepared under duress, threats, coercion
or intimidation or they are obviously manufactures or
not authentic – in Ocampo v. Comelec 235 SCRA 436,
it was held that this fact must be evident from the face
of the said document. In the absence of a strong
evidence establishing spuriousness of the returns, the
basic rule is that the ER shall be accorded prima facie
status as bona fide reports of the results of the count of
the votes which shall prevail for purposes of
canvassing and proclamation.
 When substitute or fraudulent returns in controverted
polling places are canvassed, the result of which
materially affect the standing of the aggrieved
candidate. (Sec. 243)
34
Under the AES in 2010 Elections – same scope and coverage.
PROCEDURAL REQUIREMENTS IN A Pre-
PROCLAMATION CONTROVERSY
Sec. 20 of RA 7166 (repealing Sec. 245 OEC)
provides for the mandatory two-step rule or requirement of verbal
objection to the inclusion of the ER and to be formalized in writing
within 24 hours. Failure to observe such rule is fatal to a
candidate’s cause, leaving him with no other remedy except an EP.
This cannot be cured by instituting a petition directly filed with the
Comelec under Sec. 241
Sandoval v. Comelec 323 SCRA 407, it was stressed that
Comelec exercises exclusive jurisdiction and may motu propio or
upon verified 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. It
was ruled that 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 as to mean
ex-parte proceedings.
In Velayo case, respondent objected to the inclusion of two (2)ER’s
which did not contain a vote for respondent being statistically
improbable which was overruled by the BOC. It was ruled that it is
possible for a candidate to get zero votes in one or few precincts.
The bare fact that a candidate receive zero votes in 1 or 2 precincts
can not support a finding that the ER are statistically improbable.
(Exception to the Lagumbay Doctrine)
Lagumbay v. Comelec 16 SCRA 175 (1966) - The
Lagumbay doctrine is the prevailing case on statistical
improbability which states that where there exists uniformity of
tallies in favor of candidates belonging to one party and the
systematic blanking out of the opposing candidates as when all the
candidates of one party received all the votes, each of whom
exactly the same number, and the opposing candidates got zero
votes, the election returns are obviously manufactures, contrary to
al statistical improbabilities and utterly improbable and clearly
incredible.
In Ocampo v. Comelec 325 SCRA 636, it was reiterated that if
only one candidate obtained all the votes in some precincts, this is
not sufficient to make the election returns statistically improbable.
Imelda Dimaporo vs. Comelec/Vicente Belmonte 544 SCRA
381 - (Sec. 15 of RA 7166) provides that for the purpose of the
elections for president, VP, senator & member of the HR, no pre-
proclamation cases shall be allowed on matters relating to the
preparation, transmission, receipt, custody and appreciation of ER
or the certificate of canvass, as the case may be, except as provided
for in Sec. 30 hereof. However, this does not preclude the
authority of the appropriate canvassing body motu propio or upon
written complaint of an interested person to correct manifest errors
in the certificate of canvass or ER before it).
Rommel Munoz vs. Comelec, Carlos Balido Jr. 495 SCRA 407 -
“Results of the Elections” Defined – the phrase “results of the
election” is not statutorily defined. However, as explained in
Lucero v. Comelec it means “the net result of the election the rest
of the precincts in a given constituency, such that if the margin of a
leading candidate over that of his closest rival in the latter
precincts is less than the total number of votes in the precinct
where there was failure of election, than such failure would
certainly affect “the results of the elections.”
EFFECT OF ASSUMPTION OF OFFICE OF CANDIDATE
ELECT/WHEN PPC IS NOT DEEMED TERMINATED – A
pre-proclamation controversy is no longer viable after the
proclamation of the winning candidates as the issues raised therein
may be more closely examined and better resolved in an EP. (RA
7166, Section 16 (2)).
However, this is only true where the proclamation is based on a
complete canvass and on the assumption that the proclamation is
valid where a proclamation is null and void, the proclamation is
no proclamation at all and the proclaimed candidate’s assumption
of office cannot deprive the Comelec of the power to declare such
nullity and annul the proclamation.
 Section 16 of RA 7166 provides that all-pre-
proclamation cases pending before the Commission shall be
deemed terminated at the beginning of the term of office involved
and the rulings of the boards of canvassers concerned shall be
deemed affirmed, without prejudice to the filing of a regular
election protest by the aggrieved party. HOWEVER, proceedings
may continue when on the basis of the evidence thus far presented,
the Commission determines that the petition appears meritorious
and accordingly issued an order for the proceedings to continue or
when appropriate order has been issued by the SC in a petition for
certiorari
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 as to who actually obtained the majority of the
legal votes and therefore, is entitled to hold office.
NATURE OF PROCEEDING - It is a formal judicial
proceedings that goes into the correctness of the counting and
appreciation of ballots at the precinct level were the parties are
allowed to present and examine evidence in detail.
WHO CAN FILE – can only be filed by a candidate who has duly
filed a certificate of candidacy and has been voted for.
PERIOD TO FILE – within 10 days from proclamation
GROUNDS – fraud, vote-buying, terrorism, presence of flying
voters, misreading and misappreciation of the ballots,
disenfranchisement of voters, other election irregularities.
Jaime C. Regio vs. Comelec and Ronnie C. Co. 711 SCRA 448
citing Rosal v. Comelec 518 SCRA 473 (2007) on the standards
to be observed in an election contest – In Rosal, the SC
summarized the standards to be observed in an election contest
predicated on the theory that the election returns do not accurately
reflect the will of the voters due to alleged irregularities in the
appreciation and counting of ballots. These guiding standards are:
1) Ballots cannot be used to overturn the official as
reflected in the election returns unless it is first shown
affirmatively that the ballots have been preserved with a
care which precludes the opportunity of tampering and
suspicion of change, abstraction or substitution.
2) The burden of proving that the integrity of the ballots
has been preserved in such a manner is on the
protestant;
3) Where a mode of preserving the ballots is enjoined by
law, proof must be made of such substantial compliance
with the requirements of that mode as would provide
assurance that the ballots have been kept inviolate
notwithstanding slight deviations from the precise
mode of achieving that end;
4) It is only when the protestant has shown substantial
compliance with the provisions of law on the
preservation of ballots that the burden of proving actual
tampering or likelihood thereof shifts to the protestee;
and
5) Only if it appears to the satisfaction of the court of
Comelec that the integrity of the ballots has been
preserved should it adopt the result as shown by the
recount and not as reflected in the election returns.
Rosal was promulgated precisely to honor the presumption of
regularity in the performance of official functions. Following
Rosal, it is presumed that the BEI and the BOC had faithfully
performed the solemn duty reposed onto them during the day of
the elections. Primacy is therefore accorded to the official results
of the canvassing, even in cases where there is a discrepancy
between such results and the results of the revision proceedings. It
is only when the protestant successfully discharged the burden of
proving that the recounted ballots are the very same one counted
during the revision proceedings, will the court or the Commission,
as the case may be, even consider the revision result.
The Rosal doctrine ensures that in election protest cases, the
supreme mandate of the people is ultimately determined. In laying
down the rules in appreciating the conflicting results of the
canvassing and results of a revision later made, the Court has no
other intention but to determine the will of the electorate.
The Rosal doctrine is also supplemented by A.M. No. 07-4-
15-SC (Rules of Procedure in Election Contests Before The Courts
Involving Elective Municipal and Barangay Officials which took
effect May 15, 2007), establishing the following disputable
presumptions:
35
Sec. 6. Disputable presumptions. – The following
presumptions are considered as facts, unless contradicted and
overcome by other evidence:
(a) On the election procedure:
a. The election of candidates was held on the
date and time set and in the polling place
determined by the Comelec;
b. The BEI were duly constituted and
organized;
c. Political parties and candidates were duly
represented by poll watchers;
d. The Minutes of Voting and Counting
contains all the incidents that transpired
before the BEI;
(b) On election paraphernalia:
a. Ballots and ER that bear the security
markings and features prescribed by the
Comelec are genuine;
b. The data and information supplied by the
members of the BEI in the accountable
forms are true and correst; and
c. The allocation, packing and distribution of
election documents or paraphernalia were
properly and timely done. Xxxx xxx
Fact: Go challenged the proclamation of Regio. Go
filed an election protest and ballots were subject to revision. Go
won in the revision and now claims to have won on the basis
thereof. Comelec upon MR reversed MeTC and 2 nd and declared
Go. Go did not submit any evidence that the integrity of the ballots
were preserved except for the allegation that there were no news
report as to the manner the ballot boxes were delivered etc.
Lucy Marie Torres-Gomez v. Eufrocino C. Codilla/ 668 SCRA
600 (2012)
Verification – (Defective verification) The verification of a
pleading is only a formal, not jurisdictional requirement. The
purpose of requiring the verification is to secure an assurance that
the allegations in the petition are true and correct, not merely
speculative. This requirement is simply a condition affecting the
form of pleadings, and non compliance therewith does not
necessarily render the pleading fatally defective.
Nature of Election controversy – An election controversy, by its
nature, touches upon the ascertainment of the people’s choice as
gleaned from the medium of the ballot. For this reason, an election
protest should be resolved with utmost dispatch, precedence and
regard of due process. Obstacles and technicalities that fetter the
people’s will should not stand in the way of a prompt
determination of election contests. Thus, rules on the verification
of protests should be liberally construed. (Statutory Rules on
Construction)
Court upheld the jurisdiction of HRET as the sole judge of all
contests relating to the election, returns and qualifications of the
member of the HRET.
Salvador D. Viologo, Sr., v. Comelec 658 SCRA 516 (2011)
Facts: Motion for reconsideration was denied by Comelec en banc
for lack of verification as required by Section 3, Rule 20 of the
Comelec Rules of Procedure on Disputes in an Automated Election
System and Section 3, Rule 19 of CRP.
Comelec Rules of Procedure are subject to liberal construction.
In Quintos v. Comelec (440 Phil. 1045; 392 SCRA 489 (2002)),
this Court held that “the lack of verification of private respondent’s
Manifestation and Motion for Partial Reconsideration is merely a
technicality that should not defeat the will of the electorate. The
Comelec may liberally construe or even suspend its rules of
procedure in the interest of justice, including obtaining a speedy
disposition of all matter pending before the Comelec.”
Nature of Election Protest: In Pacanan v. Comelec 597 SCRA
189 (2009), the Court, in clarifying the mandated liberal
construction of election laws held: An election contest, unlike an
ordinary civil action, is clothed with a public interest. The
purpose of an election protest is to ascertain that the candidate
proclaimed by the board of canvassers is the lawful choice of
the people. What is sought is the correction of the canvass of
votes, which was the basis of proclamation of the winning
candidate. An election contest therefore involves not only the
adjudication of private and pecuniary interests of rival candidates
but paramount to their claims is the deep public concern involved
and the need of dispelling the uncertainty over the real choice of
the electorate. And the court has the corresponding duty to
ascertain, by all means within its command, who is the real
candidate elected by the people.
Moreover, the CRP are subject to a liberal construction. This
liberality is for the purpose of promoting the effective and
efficient implementation of the objectives of ensuring the
holding of free, orderly, honest, peaceful and credible elections
and for achieving just, expeditious and inexpensive
determination and disposition of every action and proceeding
brought before the Comelec.
This principle was reiterated in the more recent consolidated cases
of Tolentino v. Comelec 617 SCRA 575 (2010) and De Castro vs.
Comelec 617 SCRA 575, where the Court held that in exercising
its powers and jurisdiction, as defined by its mandate to protect the
integrity of elections, the Comelec “must not be straitjacketed by
procedural rules in resolving election disputes.”
Douglas R. Cagas v. Comelec/Bautista 663 SCRA 644 (2012) -
The Court has no power to review on certiorari an
interlocutory order or even a final resolution issued by a
Division of the Comelec. The governing provision is Section 7,
Article IX of the 1987 Constitution, which provides: Section 7.
Each Commission shall decide by a majority vote of all its
Members any case or matter brought before it within sixty days
from the date of its submission for decision or resolution. A case or
matter is deemed submitted for decision or resolution upon the
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 by law, any
decision, order, or ruling of each Commission may be brought
to the Supreme Court on certiorari by the aggrieved party
within 30 days from receipt of a copy thereof. This provision,
although it confers on the Court the power to review any decision,
order or ruling of the Comelec, limits such power to a final
decision or resolution of the Comelec en banc and does not extend
to an interlocutory order issued by a Division of the Comelec.
Otherwise stated, the Court has no power to review on certiorari an
interlocutory order or even a final resolution issued by a Division
of the Comelec.
Maria Laarni L. Cayetano v. Comelec/Dante Tinga 648 SCRA
561 (2011) – The Supreme Court has no jurisdiction to review
an order, whether final or interlocutory even a final resolution
of a division of the Comelec – the Court can only review via
certiorari a decision, order, or ruling of the Comelec en banc in
accordance with Section 7, Article IX-A of the Constitution, a rule
which admits of exceptions as when the issuance of the assailed
interlocutory order is a patent nullity because of the absence of
jurisdiction to issue the same. (Court made reference to the case of
Repol v. Comelec 428 SCRA 321 (2004) which was affirmed in
Soriano Jr. v. Comelec 520 SCRA 88 (2007) and Blanco v.
Comelec 554 SCRA 755. Ruling in Soriano. . . “In the 2004 case
of Repol v. Comelec, the Court cited Ambil and held that this
Court has no power to review via certiorari an interlocutory order
or even a final resolution of a division of the Comelec. However,
the Court held that an exception to this rule applies where the
commission of grave abuse of discretion is apparent on its face. In
Repol, what was assailed was a status quo ante Order without any
time limit, and more than 20 days had lapsed since its issuance
without the Comelec First Division issuing a writ of preliminary
injunction. The Court held that the status quo ante Order of the
Comelec First Division was actually a temporary restraining order
because it ordered Repol to cease and desist from assuming the
position of municipal mayor of Pagsanghan, Samar and directed
Ceracas to assume the post in the meantime. Since the status quo
ante Order, which was qualified by the phrase “until further orders
from this Commission.” Had a lifespan of more than 20 days, this
Order clearly violates the rule that a temporary restraining Order
has an effective period of only 20 days and automatically expires
upon the Comelec’s denial of preliminary injunction.”
Ceriaco Bulilis v. Victorino Nuez, Presiding Judge of MCTC,
Ubay Bohol, Presiding Judge of RTC Branch 52, Talibon,
Bohol 655 SCRA 241 (2011) - Facts: Bulilis was proclaimed
winner for the elections for punong barangay. Opponent Victorino
Nuez filed an EP (for judicial recount and annulment of
proclamation) with MCTC. The counsel of Bulilis filed his brief at
1:45pm on the date of preliminary conference and when the case
was heard at 2pm, Nuez moved in open court to be allowed to
present evidence ex parte since Bulilis only filed his brief on the
date of the preliminary conference which is contrary to Section 4,
Rule 9 of A.M. No. 08-4-15-SC which provides that the brief
should be filed at least one (1) day before the date of the
preliminary conference. Judge Garces granted the motion.
36
Bulilis filed MR which was denied by MCTC. Bulilis filed
certiorari with RTC which was dismissed on the ground that it is
Comelec that has exclusive jurisdiction in election cases involving
municipal and barangay officials. Hence, the petition for certiorari
with the SC.
(Rule 28, Sections 1 and 2 of CRP/Section 12 Amendments to
Rules 41, 45, 58 and 65 of the Rules of Court/Section 8, Rule 14 of
Comelec CRP ). Based on these rules, the Court recognizes the
Comelec’s appellate jurisdiction over petitions for certiorari
against all acts or omissions of courts in election cases. Indeed, in
the recent case of Galang, Jr. v. Geronimo 643 SCRA 631 (2011),
the Court had the opportunity to rule that a petition for certiorari
questioning an interlocutory order of a trial court in an electoral
protest was within the appellate jurisdiction of the Comelec.
Since it is the Comelec which has jurisdiction to take cognizance
of an appeal from the decision of the RTC in election contests
involving elective municipal officials (Sec. 8 Rule 14 CRP), then it
is also the Comelec which has jurisdiction to issue a writ of
certiorari in aid of its appellate jurisdiction.
Although Galang involved a petition for certiorari of an
interlocutory order of the RTC in a municipal election contest, the
rationale for the above ruling applied to an interlocutory order
issued by a municipal trial court in a barangay election case.
Under Rule 14, Section 8 of A.M. No. 07-4-15-SC, decisions of
municipal trial courts in election contests involving barangay
officials are appealed to the Comelec. Following the Galang
doctrine, it is the Comelec which has jurisdiction over petitions
for certiorari involving acts of the municipal trial courts in
such election contests.
ROMEO M. JALOSJOS, JR v. COMELEC AND DAN
ERASMO, SR. 674 SCRA 530 (2012)
Demarcation line between the jurisdiction of the Comelec and
the House of Representatives: Facts: In May 2007 Jalosjos ran
for Mayor of Tampilisan, Zamboanga del Norte and won. While
serving as Tampilisan Mayor, he bought a residential house and lot
in Barangay Veterans Village, Ipil, Zamboanga Sibugay and
occupied it in September 2008. Eight months after, he applied
with the ERB of Ipil, Zamboanga Sibugay for the transfer of his
voters registration record which application was opposed by
Erasmo in a petition for exclusion before the MCTC of Ipil-
Tungawan. RTC ruled to exclude Jalosjos on the ground that
Jalosjos did not abandon his domicile im Tampilisan since he
continue even then to serve as its Mayor. Jalosjos appealed his
case to the RTC of Pagadian City which affirmed the MCTC
decision on September 11, 2009. Jalosjos elevated the matter to
the CA through a petition for certiorari with an application for the
issuance of a writ of preliminary injunction which was granted and
enjoined the courts below from enforcing their decisions, with the
result that his name was reinstated in the Barangay Veterans
Village’s list pending the resolution of the petition.
On November 28, 2009, Jalosjos filed his CoC for the position of
representative of the Second District of Zamboanga Sibugay for
the May 10, 2010 elections. Erasmo filed a Petition to deny due
course to or cancel his CoC before the Comelec, claiming that
Jalosjos made material misrepresentations in his CoC when he
indicated in it that he resided in Ipil, Zamboanga Sibugay. The
Second Division of the Comelec issued a joint reso dismissing the
petition of Erasmo for insufficiency in form and substance. While
Erasmo’s MR was pending before the Comelec En Banc, the May
10, 2010 elections took place resulting in Jalosjos winning the
elections and was proclaimed on May 13, 2010.
In June 2, 2010, the CA rendered judgment in the voter’s exclusion
case before it holding that the lower courts erred in excluding
Jalosjos since he was qualified under the Constitution and RA
8189. Erasmo filed a petition for review of the CA decision before
the SC. On the other hand, Comelec en banc granted the MR of
Erasmo and declared Jalosjos ineligible as he did not satisfy the
residency requirement since, by continuing to hold the position of
Mayor in Tampilisan, he should be deemed not to have transferred
his residence form that place to Ipil, Zamboanga Sibugay.
While the Constitution vests in the Comelec the power to decide
all questions affecting elections, such power is not without
limitation. It does not extend to contests relating to the election,
returns, and qualifications of members of the HR and the Senate.
The Constitution vests the resolution of these contests solely upon
the appropriate Electoral Tribunal of the Senate or the HR.
The Court has already settled the question of when the
jurisdiction of the Comelec ends and when that of the HRET
begins. The proclamation of a congressional candidates
following the election divests Comelec of jurisdiction over
disputes relating to the election, returns and qualifications of
the proclaimed Representative in favor of HRET.
QUO WARRANTO
A petition for Quo Warranto refers to questions of disloyalty or
ineligibility of the winning candidate. It has the effect of
disqualifying a candidate to hold office to which he is elected. Its
primordial objective is to prevent an elective official from
assuming office grounded on ineligibility. (Sec. 253 OEC). In
Velasco v. Belmonte 780 SCRA 81, the SC defined QW as a
proceeding to determine the right of a person to the use or exercise
of a franchise or office and to oust the holder from its enjoyment, if
his claim is not well-founded, or if he has forfeited his right to
enjoy the privilege. So, where the action is filed by a private
person, he must prove that he is entitled to the controverted
position; otherwise, the respondent has a right to the undisturbed
possession of the office.
NATURE OF PROCEEDING – it is a proceeding to unseat the
ineligible person from office, but not to install the protestant in his
place.
WHO CAN FILE – any voter.
PERIOD TO FILE - within 10 days from proclamation
In Velasco v. Belmonte Jr. 780 SCRA 81 – In this case
ruled on whether the special civil action is really one for
mandamus and not a quo warranto case. Court resolved the
propriety of issuing a writ of mandamus to compel Speaker
Belmonte Jr. and the Sec. General to perform the specific acts
sought by Velaso in this petition. In this case, Reyes, the opponent
of Velasco, was subject of a Petition under Section 78 for making
material representation in her COC which was declared final by the
Comelec (Reyes failed to raised the Comelec En Banc Resolution
within 5 days from receipt of the ruling). Notwithstanding, the
BOC proclaimed Reyes as the winning candidate for the position
of Rep of the lone District of the Province of Marinduque… the
said proclamation was subsequently declared null and void and
instead after the BOC was ordered reconvened, Velasco was
declared winner. In the meantime Reyes already took her oath and
assumed office in the HR.
Based on these supervening event, Velasco wrote the
Speaker to administer his oath of office and register his name in
the Roll of members of the HR and remove Reyes. First, at the
time of Reyes proclamation, her COC was already cancelled by the
Comelec en banc (Reyes did not avail the prescribed remedy
..TRO from the SC..after 5 days Comelec Resolution became final
and executor).. Second..Cancellation of COC was final and
executor…Third…proclamation was cancelled and Velasco elected
(Reyes did not challenge or question the proclamation of Velasco).
4th.. when Reyes took her oath in open session.. Reyes had no valid
COc nor a valid proclamation and 5th.. Reyes has no legal basis to
serve as member and no legal personality to be recognized as a
party-respondent at a QW proceeding before the HRET. Not
considered a candidate. Earlier case Reyes v. Comelec 708 SCRA
197.
Republic v. dela Rosa 232 SCRA 785, a QW assailing the public
official’s title and seeking to prevent him from holding office for
alienage is not covered by the 10-days period for appeal prescribed
in Section 253 of the OEC.
The distinction been an EP and QW as a remedy is not
the label given to it but the allegations therein stated. If a petition
alleges 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, an EP and QW cannot be availed of
jointly in the same proceeding. They may be filed separately with
the second and later case suspended until the earlier is resolved.
An action for QW cannot be converted into an EP.
Penera vs. Comelec 599 SCRA 609, is the well-established
principle that the ineligibility of a candidate receiving majority
votes does not entitle the candidate receiving the next highest
number of votes to be declared elected. In this case, the rules on
succession under Section 44 of the Local Government Code shall
apply which states that” if a permanent vacancy occurs in the
office of the Mayor, the Vice-Mayor concerned shall become the
mayor. A permanent vacancy arises when an elective local official
fills a higher vacant office, refuses to assume office, fails to qualify
or is removed from office, voluntarily resigned, or is otherwise
37
permanently incapacitated to discharge the functions of his
office.”
(Virgnio Villamor vs. Comelec & Amytis de Dios-Batao 496
SCRA 334) As a general rule, the proper remedy after the
proclamation of the winning candidate for the position contested
would be to file a regular election protest or a petition for QW.
The filing of an EP or a petition for QW precludes the subsequent
filing of a pre-proclamation controversy or amounts to the
abandonment of one earlier filed, thus, depriving the Comelec of
the authority to inquire into and pass upon the title of the protestee
or the validity of his proclamation. The reason is that once the
competent tribunal has acquired jurisdiction of an EP or a petition
for QW, all questions relative thereto will have to be decided in the
case itself and not in another proceedings. This procedure is to
prevent confusion and conflict of authority.
Basarte vs. Comelec 523 SCRA 76 – The prevailing rule that as
long as the returns appear to be authentic and duly accomplished
on their face, the BOC cannot look beyond or behind them to
verify allegations of irregularities in the casting or the counting of
the votes as it presupposes that the returns “appear to be authentic
and duly accomplished on their face”. This principle does not
apply in cases like the one at bar where there is a prima facie
showing that the return is not genuine, several entries having been
omitted in the assailed return.
JURSIDCITON OVER ELECTION PROTESTS AND QUO
WARRANTO
1) SUPREME COURT – sitting en banc as Presidential
Electoral Tribunal as sole judge of all contests relating to the
election, returns and qualification of Pres. and VP. Protest to
be filed 30 days from proclamation. Not subject to judicial
review (1987 Constitution).
2) SENATE ELECTORAL TRIBUNAL – for members of
senate as sole judge over all contest relating to the election,
returns and qualifications 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 lack
or excess of jurisdiction. (1987 Constitution)
3) HOUSE OF REPRESENTATIVES ELECTORAL
TRIBUNAL – for members of HR to be filed within 10 days
from proclamation.
Composition - Each electoral tribunal shall be composed of
nine members,
a) three of whom shall be justices of the SC to be
designated by the CJ and
b) the remaining 6 members of the senate or HR, 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,.
c) Senior justice shall be chairman (Art. VI, Sec. 17, 1987
Constitution) .
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.
Article IX-C, Section 2(2) 1987 Constitution, Comelec
shall “Exercise exclusive jurisdiction over all contests
relating to the elections, returns and qualifications of all
a) elective, regional,
b) provincial and city officials, and
APPELLATE JURISDICTION over all contests involving
a) municipal officials decided by trial courts of general
jurisdiction, or involving
b) elective barangay officials decided by courts of limited
jurisdictions.
c) Decisions, final order, or rulings of the Commission, on
election contests involving elective municipal and
barangay offices shall be final, executory and not
appealable.”
Mendoza v. Comelec 616 SCRA 443 – There is a difference in the
result of the exercise of jurisdiction by the Comelec over election
contests. The difference inheres in the kind of jurisdiction
invoked, which in turn, is determined by the case brought before
the Comelec. When a decision of a trial court is brought before the
Comelec for it to exercise appellate jurisdiction,
  the division decides the appeal but,
 if there is a MR, the appeal proceeds to the banc where
the majority is needed for a decision.
 If the process ends without the required majority at the
banc, the appealed decision stands affirmed.
Upon the other hand, and this is what happened in the instant case,
if what is brought before the Comelec is an original protest
involving the original jurisdiction of the Commission,
 the protest, as one whole process, is first decided by the
division, which process is continued in the banc if there
is a MR of the division ruling.
 If no majority decision is reached in the en banc, the
protest, which is an original, shall be dismissed.
There is no first instance decision that can be
deemed affirmed.
Hence, if no decision is reached after the case is reheard, there are
two different remedies available to the Comelec, to wit
(1) dismiss the action or proceeding, if the case was originally
commenced in the Comelec; or
(2) consider as affirmed the judgment or order appealed from, in
appealed cases. This rule adheres to the constitutional
provision that the Comelec must decide by a majority of all
its members.
Maliksi v. Comelec and Saquilayan (March 12, 2013) – The
petitioner assailed the use by the Comelec 1 st Division of the ballot
images in the CF cards. He alleged that the best and most
conclusive evidence are the physical ballots themselves, and when
they cannot be produced or when they are not available, the
election returns would be the best evidence of the votes cast. The
Supreme Court ruled that the ballot images in the CF cards, as
well as the printouts of such images, are the functional
equivalent of the official physical ballots filled up by the voters,
and may be used in an EP.
In the succeeding Maliksi v. Comelec 11 April 2013, where the SC
granted the Extremely Urgent Motion For Reconsideration against
the March 2013 Decision, it was explained – “That the 2
documents – the official ballot and its picture image- are
considered “original documents” simply means that both of them
are given equal probative weight. In short, when either is presented
as evidence, one is not considered weightier than the other.
But this judicial reality does not authorize the courts, the Comelec
and Electoral Tribunals to quickly and unilaterally resort to the
printouts of the picture images of the ballots in the proceedings
before them without notice to the parties. Despite the equal
probative weight accorded the official ballots and the printouts of
the picture images, the rules for the revision of ballots adopted
for their respective proceedings still consider the official ballots
to be the primary or best evidence for the voter’s will. In that
regard, the picture images of the ballots are to be use only when it
is first shown that the official ballots are lost or their integrity has
become compromised. (Sam ruling in Vinzons Chaot v. HRET &
Panotes January 23, 2013).
POWER TO ISSUE WRITS OF CERTIORAI.
PROHIBITION, AND MANDAMUS
Relampagos v. Cumba 243 SCRA 690 (1995) and in Carlos v.
Angeles 346 SCRA 571 (2000), 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 881
and Article 2(1) of the Constitution. These ruling abandoned the
earlier ruling in Garcia vs. de Jesus 206 SCRA 779. It was also
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)
Section 7, Article IX-A and Rule 3 of the Comelec Rules of
Procedure. The Comelec in the exercise of its QJ
functions to transact business “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.”
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The authority to hear and decide election cases, including pre-
proclamations controversies is vested with a division and the
Comelec sitting en banc does not have the authority over it in the
first instance.
The Comelec en banc can exercise jurisdiction only on MR 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 (Sec. 3 Art.
IX-C).
Sec. 2 Rule 19 of the Comelec Rules of Procedure a motion to
reconsider a decision, resolution, order or ruling of a Division shall
be filed within five (5) days from the promulgation thereof. 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).
5) REGIONAL TRIAL COURT – exclusive jurisdiction over
all contests relating to the election, qualifications and returns
for municipal officials. Protest to be filed 10 days from date
of proclamation. Subject to appeal with Comelec within five
(5) days from receipt of decision. Decisions of the Comelec
en banc on contest on appeal involving municipal and
barangay officials are final and executory except on grounds
of grave abuse of discretion within 30 days.
6) MUNICIPAL TRIAL COURT – exclusive jurisdiction over
all contests relating to the election, returns and qualifications
for barangay officials. Protest to be filed within 10 days
from proclamation. Appeal to the Comelec within 5 days
from receipt of the decision.
Calo v. Comelec 610 SCRA 342/Pecson v. Comelec 575 SCRA
634 – decisions of the courts in election protest cases, resulting as
they do from a judicial evaluation of the ballots and a full blown
adversarial proceedings, should at least be given similar worth and
recognition as decisions of the board of canvassers. This is
especially true when attended by other equally weighty
circumstances of the case, such as the shortness of the term of the
contested elective office, of the case.
Mananzala vs. Comelec and Julie Monton 523 SCRA 31. -
Decisions, final orders or rulings of the Commission on Election
contests involving elective municipal and barangay offices shall be
final, executory and not appealable; All such election cases shall
be heard and decided in division, provided that motions for
reconsideration of decisions shall be decided by the Commission
en banc.
A decision of the RTC was raised on appeal which was heard by
the 2nd division which reversed the decision of the RTC. In his MR
petitioner argues that the MR filed with the former 2 nd division
“has thrown the whole case wide open for review as in a trial
de novo in a criminal case” yet Comelec en banc failed to
conduct a thorough review of the contested ballots. Election cases
cannot be treated in a similar manner as criminal cases where,
upon appeal from a conviction by the trial court, the whole case is
thrown open for review and the appellate court can resolve issues
which are not even set forth in the pleadings.
Coquilla vs. Comelec, et. al. 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 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 petitioner’s
motion for reconsideration for being pro-forma and conformably
with Sec. 4 of Rule 19 of the CRP, 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 new matters raised that would
sufficiently warrant a reversal of the assailed resolution of the
Second Division.
The SC ruled however that the mere reiteration in a motion for
reconsideration of the issues raised by the parties and passed upon
by the court does not make a motion pro-forma; otherwise, the
movant’s 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. If 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: SSSCN
1) it was a second MR;
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 errors;
4) it merely alleged that the decision in question was contrary to
law
5) or the adverse party was not given due notice thereof.
Rule 13 - Prohibited Pleadings
Section 1. What Pleadings are not Allowed. - The following
pleadings are not allowed:
(a) motion to dismiss;
(b) motion for a bill of particulars;
(c) motion for extension of time to file memorandum or brief;
(d) motion for reconsideration of an en banc ruling, resolution,
order or decision except in election offense cases;
(e) motion for re-opening or re-hearing of a case;
(f) reply in special actions and in special cases; and
(g) supplemental pleadings in special actions and in special
cases.
Angelia v. Comelec 332 SCRA 757, the SC addressed the issue on
whether a party can go to the SC via a Petition on Certiorari under
Rule 65 of the Rules of Court during the pendency of the MR filed
with the Comelec en banc. Angelia filed before the SC a Petition
for Certiorari to set aside the resolution of the Comelec en banc
annulling his proclamation alleging that he was not given due
notice and hearing. Without waiting for the resolution on his
motion, Angelia filed the instant petition on the sole assignment of
error that Comelec violated his constitutional right to due process.
Comelec raised that the petition should be dismissed for being
premature considering that the MR of petitioner was still pending
with the Comelec en banc and that he should have first withdrawn
the MR before raising the said resolution with the SC.
SC held that petitioner acted correctly in filing the petition because
the resolution of the Comelec en banc is not subject to
reconsideration, and therefore, any party who disagrees with it had
only one recourse, that was to file a petition for certiorari under
Rule 65 of the Rules of Civil Procedure. The filing of the petition
would in effect constitute as an abandonment of his MR with the
Comelec.
What is contemplated by the term “final orders, rulings and
decisions of the Comelec that may be reviewable by the SC on
Certiorari? The SC in Garces v. Court of Appeals 259 SCRA 99
(1996) and Filipinas Engineering & Machine Shop v. Ferrer 135
SCRA 25 (1985), the interpreted the term ”final orders, rulings
and 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 quasi-judicial powers.
PRINCIPLES COMMON TO
ALL ELECTION CONTESTS
How Election protests are initiated heard and finally resolved –
in order to confer jurisdiction on the tribunals, Comelec and the
Courts, an EP of officer-elect, it is necessary to allege in the
petition the following facts: CPD-j
1) that the protestant is a candidate voted for in said election and
has presented a certificate of candidacy
2) That the protestee has been proclaimed in said election; and
3) That the date when the proclamation of the result of the
election was made so that it may be seen that the protest was
filed within the term fixed by law.
39
WHO MAY FILE – a candidate who has duly filed a COC
and has been voted for.
4) Jurisdiction Allegations – (1) protestant was a candidate who
had duly filed a COC and had been voted for the same office
(2) that the protestee has been proclaimed (3) that the petition
was filed within 10 days after proclamation (4) that fraud and
election irregularities vitiated the conduct of the elections and
affected the legality thereof.
Miguel v. Comelec 335 SCRA 172, the SC ruled that it is the
ministerial duty of the trial court to order the opening of the ballot
boxes, examination and counting of ballots deposited thereunder
whenever there is averment in an election protest that requires the
examination, scrutiny or counting of ballots as evidence. The
purpose of opening the BB is to determine, with the minimum
amount of protracted delay, the truthfulness of the allegations of
fraud and anomalies in the conduct of electoral exercise.
CERTIFICATE OF FORUM SHOPPING
The SC in Loyola v. CA 245 SCRA 477 (1995) and Lomarong v.
Dubguban 269 SCRA 624 (1997), it was 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, non-
compliance therewith may warrant the dismissal of the election
case.
PAYMENT OF APPEAL/FILING FEES
Pacanan, Jr. vs. Commission on Elections, 597 SCRA 189
Aguilar v. Comelec 591 SCRA 491 - This requirement in the
payment of appeal fees had caused much confusion, which the
Comelec addressed through the issuance of Comelec Res. No.
8486 on July 15, 2008. The salient feature of the said resolution
provide that “the appeal to the Comelec of the trial court’s decision
in election contests involving municipal and barangay officials is
perfected upon the filing of the notice of appeal and payment of the
1K appeal fee to the court that rendered the decision within the 5-
day reglementary period. The non-payment or the insufficient
payment of the addition appeal fee of 3.2K to the Comelec Cash
Division in accordance with Rule 40, Section 3 of the CRP, as
amended, does not affect the perfection of the appeal and does not
result in outright or ipso facto dismissal of the appeal.
Comelec 1st division gravely abused its discretion in
issuing the order dismissing the appeal taking notice that the notice
of appeal and the 1K appeal fee were, respectively filed and paid
with the MTC on April 21, 2008 which date the appeal was
perfected. Comelec Res. 8486 clarifying the rule on the payment
of appeal fees was issued only on July 15, 2008, or almost 3-
months after the appeal was perfected. Yet on July 31, 2008 or
barely two weeks after the issuance of Comelec Res. 8486, the
Comelec 1st division dismissed the appeal for non-payment of the
3.2K appeal fee.
Considering that petitioner filed his appeal months
before the clarificatory resolution on appeal fees, the appeal
should not be unjustly prejudiced by Comelec Res. No. 8486.
Fairness and prudence dictate the 1 st division should have first
directed petitioner to pay the additional appeal fee in accordance
with the clarificatory resolution. Instead it hastily dismissed the
appeal on the strength of the clarificatory resolution which had
taken effect only a few days earlier. (This unseemly haste is an
invitation to outrage.) Court further stressed the liberal
construction policy.
Villagracia v. Comelec 513 SCRA 655 (2007), while it is true that
a court acquires jurisdiction over a case upon complete payment of
the prescribed filing fee, the rule admits of exceptions, as when a
party never raised the issue of jurisdiction in the trial court.
Gomez-Castillo v. Comelec 621 SCRA 499 – The period of
appeal and the perfection of appeal are not mere technicalities to
be so lightly regarded, for they are essential to the finality of
judgments, a notion underlying the stability of our judicial system.
The short period of 5-days as the period to appeal recognizes the
essentiality of time in election protests, in order that the will of the
electorate is ascertained as soon as possible so that the winning
candidate is not deprived of the right to assume office, and so that
any doubt that can cloud the incumbent of the truly deserving
winning candidate is quickly removed.
Zanoras v. Comelec G.R. No. 158610 November 12, 2004, the
mere filing of the notice of appeal was not enough. It should be
accompanied by the payment of the correct amount of appeal fee.
The payment of the full amount of the docket fee is an
indispensable step for the perfection of an appeal. (Rulloda v.
Comelec 245 SCRA 702)
Loyola v. Comelec 337 SCRA 134 (1997), the Court stressed that
there is no longer any excuse for shortcoming in the payment of
filing fees. The Court held that in the case at bar “any claim of
good faith, excusable negligence or mistake in any failure to pay
the full amount of filing fees in election cases which may be filed
after the promulgation of this decision is no longer acceptable
(March 25, 1977). The Loyola doctrine was reiterated in the
subsequent cases of Miranda v. Castillo 274 SCRA 503, Soller v.
Comelec 339 SCRA 684 hold that a court acquires jurisdiction
over any case only upon the payment of the prescribed docket fees
and errors in the payment of the filing fee is no longer allowed.
EXECUTIONS PENDING APPEAL
TEODORA SOBEJANA-CONDON V. COMELEC/LUIS
BAUTISTA/ROBELITO V. PICAR/WILMA P. PAGADUAN
678 SCRA 267 (2012)
Executions Pending Appeal - There is no reason to dispute the
Comelec’s authority to order discretionary execution of judgment
in view of the fact that the suppletory application of the Rules of
Court is expressly sanctioned by Section 1, Rule 41 of the Comelec
Rules of Procedure. Under Section 2, Rule 39 of the Rules of
Court, execution pending appeal may be issued by an appellate
court after the trial court has lost jurisdiction. In Batul v. Bayron
424 SCRA 26 (2004), the Court stressed the import of the
provision vis-à-vis election cases when we held that judgments in
election cases which may be executed pending appeal includes
those decided by trial courts and those rendered by the Comelec
whether in the exercise of its original or appellate jurisdiction.
Saludaga vs. Comelec 617 SCRA 601 – The discretion to allow
execution pending reconsideration belongs to the division that
rendered the assailed decision, order or resolution, or the Comelec
en banc, as the case may be – not to the presiding Commissioner. A
writ of execution pending resolution of the MR of a decision of the
division is not granted as a matter of right such that its issuance
becomes a ministerial duty that may be dispensed even just by the
Presiding Commission.
Calo v. Comelec 610 SCRA 342 – The relevant rule provides that
a motion for execution pending appeal filed by the prevailing party
shall contain a 3-day notice to the adverse party and execution
pending appeal shall not issue without prior notice and hearing.
The purpose of these requirements is to avoid surprises that may
sprung upon the adverse party who must be given time to study
and meet the arguments in the motion before a resolution by the
court. Where a party had the opportunity to be heard, then the
purpose has been served and the requirement substantially
complied with. In this case, even the Comelec admitted that
respondent was heard and afforded his day in court; hence, it
should not have annulled the RTC special order on said ground.
San Miguel vs. Comelec 609 SCRA 424 – The law provides that
the court “may” issue execution pending appeal. Evident from the
usage of the word “may”, the language of the subject provision
denotes that it is merely directory, not mandatory, for the trial court
to issue the special order before the expiration of the period to
appeal. The trial court may still thereafter resolve a motion for
execution pending appeal, provided:
i. the motion is filed within the 5-day reglementary
period; and
ii. the special order is issued prior to the transmittal of the
records of the Comelec.
Malaluan v. Comelec 254 SCRA 397, this was the first case
where a judge, acting without a precedent, granted the motion for
execution of its decision in an election protest case, pending
appeal. It was ruled that Sec. 2 Rule 39 of the Rules of Court
which allowed 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 contest decided by it. The
posting of the supersedeas bond was considered good reasons by
the judge.
40
Camlian v. Comelec 271 SCRA, executions 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 286 SCRA 189, what may constitute “good
reasons’ for execution pending appeal
a) The public interest involved or the will of the electorate
b) The shortness of the remaining period of the term of the
contested office
c) The length of time that the election contest has been pending.
The filing of a bond alone does not constitute good reasons.
Nevertheless, the trial court may require the filing of a bond as
condition for the issuance of the corresponding writ of execution to
answer for the payment of damages which the aggrieved party may
suffer by reason of the execution pending appeal.
Fernando U. Batul v. Lucilo Bayron, et. al. 424 SCRA 26,
execution pending appeal in the discretion of the courts applies
suppletorily in election cases including those involving city and
provincial officials to forestall a hollow victory for the duly elected
candidate as determined either by the Court or by Comelec. The
Comelec resolution granting execution pending appeal (by virtue
of its original exclusive jurisdiction over all contest relating to the
E, R and Q of provincial and city officials) was raised before the
SC arguing that Sec. 2 Rule 39 cannot be applied and the only
ground that will validly sustain execution of a decision by a
Comelec division pending reconsideration is when the MR is not
pro forma.
Case of Ramas did not declare that such remedy is exclusive only
to election contests involving elective municipal and barangay
officials. Sec. 1 of Rule 41 of the Comelec Rules of Procedure
expressly provides that pertinent provisions of the Rules of Court
shall be applicable by analogy or in a suppletory character.
Navarosa v. Comelec 411 SCRA, the RTC in an election protest
case granted execution pending appeal by Esto after finding that
Esto won in the said election. In the same order the judge allowed
protestee Navaroza to stay the execution of the decision pending
appeal by filing a supersedeas bond in double the amount posted
by the protestant.. A Petition for Certiorari was filed by Esto with
the Comelec where the Comelec 2nd division affirmed the trial
court’s order granting execution pending appeal and nullified the
stay of the execution. The Comelec did not gravely abuse its
discretion as it is for Comelec in the exercise of its appellate
jurisdiction to issue the extraordinary writs of certiorari,
prohibition mandamus and injunction over all contest involving
elective municipal officials decided by the trial court of general
jurisdiction elevate on appeal, and NOT the trial court, that may
order the stay or restrain the immediate execution of the decision
pending appeal granted by the trail court of general jurisdiction in
an election contest.
Except when the trial court reversed itself in a MR of
its order granting immediate execution, it cannot later on stay or
restrain the execution thereof in the guise of allowing the losing
party to file a supersedeas bond. The issue before the trial court
where a motion for execution pending appeal is filed is to
determine whether or not there are “good reasons” to justify the
immediate execution pending appeal. The issue is not whether
there are good reasons to stay the immediate execution of the
decision pending appeal.
LIM VS. COMELEC ET. AL. G.R. NO. 171952 March 08,
2007; Torres vs. Abundo, Sr. 512 SCRA 556; - Before granting a
motion for execution pending appeal in election cases, the SC laid
down the following requisites –
(1) there must be motion by the prevailing party with notice to
the adverse party
(2) there must be good reasons for the execution pending appeal
(3) the order granting execution pending appeal must state the
GOOD REASONS.
a) public interest involved or will of the electorate
b) shortness of the remaining term of the contested office
c) length of time that the election contest has been
pending (Fermo v. Comelec)
Istarul vs. Comelec 491 SCRA 300 (2006) – the length of time
that the election protest has been pending, thus, leaving petitioner
only 21 months as the remaining portion of the term to serve as
mayor, does not constitute “good reasons” to justify execution
pending appeal. Referring to Fermo, the SC held that “shortness of
term”: alone and by itself cannot justify premature execution. It
must be manifest in the decision sought to be executed that the
defeat of the protestee and the victory of the protestant has been
clearly established.”
Trillanes IV. Vs. Pimentel, Sr. 556 SCRA 471 (relate to Rodolfo
Aguinaldo on the condonation issue) – The case against Trillanes is
not administrative in nature. And there is no “prior term’ to speak
of. In a plethora of cases, the Court categorically held that the
doctrine of condonation does not apply to criminal cases. Election,
or more precisely, election to office, does not wipe out a criminal
charge. Petitioners electoral victory only signifies pertinently that
when the voters elected him to the Senate, “they did so with full
awareness of the limitations on his freedom of action and with the
knowledge that he could achieve only such legislative results
which he could accomplish within the confines of prison.
CAN DAMAGES BE AWARDED IN ELECTION PROTEST
CASES
Malaluan vs. Comelec, the Court ruled that damages cannot be
granted in an election protest case ratiocinating that the provision
of law allowing damages under specific circumstances, more
particularly compensatory and actual damages is provided under
Article 2176 of the Civil Code which is appropriate only in
breaches of obligations in contracts and QC and on the occasion of
crimes and QD 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 anchored in contract, QC, or a tortiuos act or
omission of 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.
The bonds or cash deposits required by the Comelec Rules of
Procedure are in the nature of filing fees not damages
SUBSTITUTION OF PARTIES IN AN ELECTION
PROTEST CASE
Public office is personal to the public officer and is not a property
transmissible to his heirs upon death. Thus applying the doctrine of
action personalis moritur cum persona, upon the death of the
incumbent, no heir of his may be allowed to continue holding his
office in his place.
But while the right to a public office is personal and exclusive to
the public officer, an election protest is not purely personal and
exclusive to the protestant or to the protestee such that the death of
either would oust the court for all authority to continue the protest
proceedings.
Death of the Protestee – He should be substituted by his
successor to the public office (the public officer nest lower in rank)
(De la Victoria v. Comelec 1991)
Death of Protestant – he should be substituted by the public
official who would have succeeded him (De Castro v. Comelec.
Fernando Poe v. Arroyo March 29, 2005, the Court resolved the
issue on whether the widow may substitute/intervene for the
protestant who die during the pendency of the latter’s protest case.
The fundamental rule applicable in a presidential
election protest is Rule 14 of the PET Rules which provides “only
the registered candidate for Pres. or VP of the Philippines who
received the 2nd and 3rd highest number of votes may contest the
election of the P and VP, as the case may be, by filing a verified
petition with the Clerk of the PET within 30 days after the
proclamation of the winner.
The Court made reference in its ruling in Vda de Mesa
v. Mencias where it rejected substitution by the widow or the heirs
in election contest where the protestant dies during the pendency of
the protest on the grounds that the heirs are not real parties in
interest and that a public office is personal to the public officer and
not a property transmissible to the heirs upon death. The Court
pursuant to Rule 3, Section 15 of the rules of Court, however,
allowed substitution and intervention upon the death of the
protestee but by a real party in interest, one who would be
benefited or injured by the judgment and entitled to avail of the
suit. In the Mencias and Lumogdnag v. Javier cases, the Court
permitted substitution by the VM since the VM is the real party in
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interest considering that if the protest succeeds and the protestee is
unseated, the VM succeeds to the office of the mayor that becomes
vacant if the one duly elected cannot assume office.
The Court further held, that nobility of intentions is not the point in
reference in determining whether a person may intervene in an
election protest case.
PROSECUTION OF ELECTION CASES
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.
This prosecutorial power of the Comelec is reflected in Section
265 of BP 881. It is well settled that the finding of probable cause
in the prosecution of election offenses rests in the Comelec’s sound
discretion. (Garcia v. Comelec 611 SCRA 55 Jan. 2010)
Section 268 of the OEC provides that the Regional Trial Court
shall have exclusive jurisdiction to try and decide any criminal
action or proceedings for violation of the OEC, except which shall
be under the jurisdiction of the MeTC or MTC:
1) those relating to the offense of failure to register or
2) failure to vote
In Arroyo v. Department of Justice 701 SCRA 753 –While
recognizing the Comelec’s exclusive power to investigate and
prosecute cases under BP 881, the Court pointed out that the
framers of the 1987 Constitution did not have such intention. This
exclusivity (Section 265 of BP 881) is thus a legislative enactment
that can very well be amended by Section 43 of RA 6369.
Therefore, under the present law, the Comelec and other
prosecuting arms of the government, such as the DOJ, now
exercises concurrent jurisdiction in the investigation and
prosecution of election offenses. (No longer deputies but
exercises concurrent jurisdiction Comelec-DOJ Task Force).
Notwithstanding the grant of concurrent jurisdiction, the Comelec
and the DOJ nevertheless included a provision in the assailed Joint
Order whereby the resolutions of the Joint Committee finding
probable cause for election offenses shall still be approved by the
Comelec in accordance with the CRP. With more reason,
therefore, that we cannot consider the creation of the Joint
Committee as an abdication of the Comelec’s independence
enshrined in the 1987 Constitution.
The procedure in conducting PI is governed by Rule 112 of the
Revised Rules on Criminal Procedure and Rule 34 of the Comelec
Rules of Procedure. Under both Rules, the respondent shall submit
his counter-affidavit and that of his witnesses and other supporting
documents relied upon for his defense, within 10 days from receipt
of the subpoena, with the complaint and supporting affidavits and
documents. Also in both Rules, respondent is given the right to
examine evidence, but such right of examination is limited only to
the documents or evidence submitted by complainants which she
may not have been furnished and to copy them at her expense.
Lozano v. Comelec G.R. No. 94521, 28 October 1991 Vote-
Buying – The Court ruled that the traditional gift giving by the
City of Makati during Christmas does not constitute vote-buying.
The Court held that it requires more than a mere tenuous deduction
to prove the offense of vote-buying.
Ong v. Martinez G.R. 87743, 21 August 1990 – Prohibition
against appointment of a government employee within 45 days
before a regular election refers to positions covered by civil service
and does not apply to the replacement of a councilor who died. The
permanent vacancy for councilor exists and its filling up is
governed by the Local Government Code while the appointment
referred to in the election ban provision is covered by the Civil
Service Law.
Regalado v. CA G.R. No. 115962 15 February 2000 – The two
elements of the offense prescribed under Section 262(h) are:
(2) a public officer or employee is transferred or detailed within
the election period as fixed by the Comelec, and
(3) the transfer or detail was effected without prior approval of
the Comelec in accordance with its implementing rules and
regulations.
The fact that the transfer of an employee was needed is not an
excuse for failure to obtain approval from the Comelec. However,
if the transfer was made prior to the publication of the
implementing rules and regulations, it is not an election offense
because the said rules were not yet existent. (People v. Reyes, 14
August 1995)
Electoral Sabotage (Section 27(b) of RA 6646 as amended) –
In addition to the prohibited acts and election enumerated in
Section 262 and 262 of OEC, as amended, the following shall be
guilty of an election offense or a special election offense to be
known as electoral sabotage:
(c) Any person or member of the BEI or BOC who tampers,
increases or decreases the votes received by a candidate in
any election or
(d) any member of the Board who refuses after proper
verification and hearing to credit the correct votes or deduct
such tampered votes;
Provided however, that when the tampering, increase or decrease
of votes or refusal to credit the correct votes and/or deduct
tampered votes are perpetrated on large scale or in substantial
numbers, the same shall be considered not as an ordinary
election offense under Section 261 of the OEC, but a special
election offense to be known as electoral sabotage and the
penalty to be imposed shall be life imprisonment.
Electoral Cheating – There are 3 main types of electoral cheating:
(4) Pre-election: preventing qualified voters from registering;
(5) Election Day: preventing registered voters from casting their
vote freely, or influencing the BEI to cheat;
(6) Post Election: altering the results of the elections by making
it appear that the losing candidate won.
Disputable presumption of conspiracy to bribe voters and of the
involvement of a candidate and of his principal campaign
managers in such conspiracy: BQ 1991
(a) Under Section 28 of RA 6646, proof that at least one 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, give rise to a disputable presumption of
conspiracy to bribe voters.
(b) Under Section 28, if the proof affects at least 20% of the
precincts of the municipality, city or province to which the
public office aspired for by the favored candidate relates,
this shall constitute a disputable presumption of the
involvement of such candidate and of his principal campaign
managers in each of the municipalities concerned, in the
conspiracy.
Comelec v. Noynay, July 9, 1998, 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. RA 7691 can by no
means be considered as a special law on jurisdiction as it is merely
an amendatory law intended to amend specific sections of the
Judiciary Reorganization Act of 1980. Hence, RA No. 7691 does
not have the effect of repealing laws vesting upon RTCs or the SB
exclusive original jurisdiction to hear and decide cases therein
specified.
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.
In People v. Inting, July 25, 1990 , the SC conformably with the
mandate of the Constitution ruled that the Comelec is give
exclusive authority to investigate and conduct preliminary
investigations relative to commission of election offense and
prosecute the same. A preliminary investigation conducted by the
Provincial Election Supervisor involving an election offense does
not have to be coursed through Provincial Prosecutor before the
RTC may take cognizance of the investigation and determine
whether or not probable cause exists 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
(a) where the State Prosecutor, or Provincial or City
Prosecutor exercises the power to conduct PI of election
offense cases and after the investigation submits its
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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.
(b) If the preliminary investigation of the complaint for an
election offence is conducted by the Comelec, the
investigation officer prepares its recommendation to the Law
Department 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
which 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.)
Summary:
 If delegated: Prosecutor conducts PI  prosecutor submits
resolution (PI is already determined here)  appeal to
COMELEC  CEB finding is F&E  Certiorari under R.
65
 If by COMELEC: IO prepares report upon which the
COMELEC  law department makes its recommendation
to the CEB on whether there is probable cause to prosecute
 CEB determines existence of probable cause by
resolution  MFR  Certiorari under R. 65
Herman Tiu Laurel vs. RTC Judge of Manila Br. 10 and
Comelec, the SC upheld the power of Comelec to prosecute cases
of violations of election laws and further explained that there are
two (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.
But in both cases, the complaint shall be filed with the Comelec
Law Department the complaint shall be referred to the Comelec
Law Department for investigation. Upon direction of the
Chairman, the PI may be delegated to any lawyer of the Dept., any
Regional Election Director, or Provincial Election Supervisor, or
any COMELEC lawyer.
Dino vs. Olivares 607 SCRA 251 (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 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 on the argument that it was the Comelec’s
constitutional duty to prosecute election offenses upon any
information of alleged commission of election offenses. The
Comelec dismissed the complaint there being on probable cause
found. The SC rued that it is not the duty of the 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.

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