#1 Joselito R. Mendoza v. Commission on Elections, Roberto Pagdanganan G. R. No.

188308, October 15, 2009 Facts: Joselito Mendoza was proclaimed the winner of the 2007 gubernatorial election for the province of Bulacan besting Roberto Pagdanganan by a margin of 15,732 votes. The respondent filed an election protest anchored on the massive electoral fraud allegedly perpetrated by petitioner. The COMELEC 2nd division rendered a resolution which annulled petitioners proclamation as governor of Bulacan and proclaimed Pagdanganan instead with a margin of 4,321 votes. On MR before the COMELEC en banc, the assailed resolution was affirmed. Petitioner Mendoza asserts that the COMELEC, exercising judicial power, conducted proceedings in the election contest within SET premises for the gubernatorial position of the Province of Bulacan, between him and the respondent Pagdanganan, without due regard to his fundamental due process rights of notice and participation. The COMELEC, claims that its decision-making deliberations are internal, confidential and do not require notice to and the participation of the contending parties. Issue: Whether or not COMELEC has judicial power. Held: No. Judicial power in our country is vested in one Supreme Court and in such lower courts as may be established by law. The COMELECs adjudicative function is quasi-judicial since it is a constitutional body, other than a court, vested with authority to decide election contests, and in the course of the exercise of its jurisdiction, to hold hearings and exercise discretion of a judicial nature; it receives evidence, ascertain the facts from these submissions, determine the law and the legal rights of the parties, and on the basis of all these decides on the merits of the case and renders judgment. Despite the exercise of discretion that is essentially judicial in character, particularly with respect to election contests, COMELEC is not a tribunal within the judicial branch of government and is not a court exercising judicial power in the constitutional sense; hence, its adjudicative function, exercised as it is in the course of administration and enforcement, is quasi-judicial. Under these terms, the COMELEC under our governmental structure is a constitutional administrative agency and its powers are essentially executive in nature (i.e., to enforce and administer election laws), quasijudicial (to exercise original jurisdiction over election contests of regional, provincial and city officials and appellate jurisdiction over election contests of other lower ranking officials), and quasi-legislative (rulemaking on all questions affecting elections and the promulgation of its rules of procedure). #2 DOUGLAS R. CAGAS vs. COMELEC AND CLAUDE P. BAUTISTA G.R. No. 194139 January 24, 2012 BERSAMIN, J.: A party aggrieved by an interlocutory order issued by a Division of the Commission on Elections (COMELEC) in an election protest may not directly assail the order in this Court through a special civil action for certiorari. The remedy is to seek the review of the interlocutory order during the appeal of the decision of the Division in due course. FACTS: Cagas was proclaimed the winner for the gubernatorial race for the province of Davao del Sur. Respondent Claude P. Bautista, his rival, filed an electoral protest alleging fraud, anomalies, irregularities, vote-buying and violations of election laws, rules and resolutions. The protest was raffled to the COMELEC First Division. In his affirmative defense, Cagas argued that Bautista did not make the requisite cash deposit on time and that Bautista did not render a detailed specification of the acts or omissions complained of. The COMELEC First Division denied the special affirmative defences. Thus, Cagas prayed that the matter be certified to the COMELEC En Banc. Bautista countered that the assailed orders, being merely interlocutory, could not be

elevated to the COMELEC En Banc. The COMELEC First Division issued an order denying Cagas motion for reconsideration, prompting him to file a petition for certiorari before the Supreme Court. ISSUE: WON SC has the power to review on certiorari an interlocutory order issued by a Division of the COMELEC RULING:Petition DENIED. Although Section 7, Article IX of the 1987 Constitution confers on the Court the power to review any decision, order or ruling of the COMELEC, it 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. There is no question, therefore, that the Court has no jurisdiction to take cognizance of the petition for certiorari assailing the denial by the COMELEC First Division of the special affirmative defenses of the petitioner. The proper remedy is for the petitioner to wait for the COMELEC First Division to first decide the protest on its merits, and if the result should aggrieve him, to appeal the denial of his special affirmative defenses to the COMELEC En Banc along with the other errors committed by the Division upon the merits. It is true that there may be an exception to the general rule, which is when an interlocutory order of a Division of the COMELEC was issued without or in excess of jurisdiction or with grave abuse of discretion, as the Court conceded in Kho v. Commission on Elections. However, the said case has no application herein because the COMELEC First Division had the competence to determine the lack of detailed specifications of the acts or omissions complained of as required by Rule 6, Section 7 of COMELEC Resolution No. 8804, and whether such lack called for the outright dismissal of the protest. #3:Carmelinda C. Barro, petitioner vs. COMELEC and Elpedio P. Continedas, respondents Facts: Petitioner Barro won by margin of one vote against Continedas during the October 29, 2007 Barangay Election. She was later on proclaimed by the Barangay Board of Canvassers as the duly elected Punong Barangay of Plaridel, Polompon Leyte. Respondent Continedas filed an election protest with the MTC questioning the two precincts. After revision of the ballots, MTC found that both contenders garnered 151 both each. As such, there shall be a drawing of lots for the two and a party favored by luck will be proclaimed duly elected. Petitioner filed an appeal with a Notice of Appeal with the MTC together with a statement in her petition that she paid the appeal fee of Php1,000 under Section 9 Rule 14 of Rules of Procedure in Election Contest. COMELEC First Division dismissed her appeal for failure to pay the appeal fee of Php3,200 based Section 3 and 4, Rule 40 of the COMELEC Rules of Procedure. Petitioner filed a Motion with Postal Money Order to cover the appeal fee which was denied by the COMELEC First Division. Hence, this petition for certiorari. Issue: Whether the COMELEC First Division gravely abused its discretion amounting to lack or excess of jurisdiction in dismissing petitioners appeal and in acting on her motion without elevating the same to the COMELEC en banc? Held: Yes. In this case, the appeal to the COMELEC was perfected when petitioner filed her Notice of Appeal and paid the appeal fee of Php1,000 two months before COMELEC issued Resolution No. 8486 clarifying payment of appeal fee of Php3,200. The First Division should have been more cautious in dismissing her appeal based on mere-technicality of non-payment of additional appeal fee.

Grave abuse of discretion implies a capricious and whimsical exercise of judgment amounting to lack of jurisdiction or an arbitrary and despotic exercise of power because of passion or personal hostility. The grave abuse of discretion must be so patent and gross as to amount an evasion or refusal to perform a duty enjoined by law. As to the issue on Motion, Under Section 7, Article IX-A of the Consitution, decision, ruling or order of COMELEC en banc may be brought on certiorari before the Supreme Court. However, this rule should not apply when a division of COMELEC arrogates unto itself and deprives the en banc of the authority to rule on the motion. Section 3, Article IX-C of the Constitution provides that Motion for reconsideration for decision on election cases SHALL BE decided by the Commission en banc. In this case, COMELEC violated the Constitutional provision which dismissed petitioners appeal. By arrogating unto itself a power constitutionally lodged in the Commission en banc, the First Division exercised judgment in excess or without jurisdiction. Petition granted. #4 NELSON T. LLUZ AND CATALINO C. ALDEOSA v. COMMISSION ON ELECTIONS AND CAESAR O. VICENCIO G.R. No. 172840, 7 June 2007 A misrepresentation in a certificate of candidacy is material when it refers to a qualification for elective office and affects the candidate's eligibility. When a candidate commits a material misrepresentation, he or she may be proceeded against through a petition to deny due course to or cancel a certificate of candidacy under Section 78, or through criminal prosecution under Section 262 for violation of Section 74 of B.P. 881. A misrepresentation of a non-material fact, or a nonmaterial misrepresentation, is not a ground to deny due course to or cancel a certificate of candidacy under Section 78. In other words, for a candidate's certificate of candidacy to be denied due course or canceled by the COMELEC, the fact misrepresented must pertain to a qualification for the office sought by the candidate. FACTS: Vicencio was a candidate for the post of punong barangay of Barangay 2, Poblacion, Catubig, Samar in the July 2002 Synchronized Barangay and Sangguniang Kabataan Elections. In his certificate of candidacy, he stated his profession or occupation as a certified public accountant (CPA). Vicencio won in the elections. Sometime after Vicencio's proclamation, petitioners charged him before the Law Department of the COMELEC (Law Department) with violation of Section 262 in relation to Section 74 of B.P. 881. Petitioners claimed they had proof that Vicencio misrepresented himself as a CPA. Attached to petitioners' complaint was a Certification signed the Regulations Office of the Professional Regulation Commission (PRC), stating that Vicencio's name does not appear in the book which contains the names of those duly authorized to practice accountancy in the Philippines. Vicencio maintained that he was a CPA and alleged that he passed the CPA Board Examinations. He argued that he could not be held liable for an election offense because his alleged misrepresentation of profession was not material to his eligibility as a candidate. The Law Department issued a subpoena requiring the Chief of the PRC's Records Section to appear before it and settle the controversy on whether Vicencio was indeed a CPA. PRC Records Section Officer-in-Charge appeared before the Law Department and produced a Certification showing that Vicencio had taken the October 1993 CPA Board Examinations and obtained a failing mark.

The Law Department, however, recommended the dismissal of petitioners' complaint. Citing the rulings of the Supreme Court in Bomualde~Marcos v. COMELEC and Salcedo II v. COMELEC, the Law Department held that the misrepresentation in Vicencio's certificate of candidacy was not material to his eligibility as a candidate and could not be a ground for his prosecution. Upon motion of petitioners, the COMELEC En Banc by Resolution ordered the Law Department to file an information against Vicencio for violation of Section 262 in relation to Section 74 of B.P. 881. In reversing the resolution of the Law Department, the COMELEC En Banc ruled that Bomualde~-Marcos and Salcedo were disqualification cases not applicable to the case of Vicencio who is sought to be prosecuted for an election offense. As such, the misrepresentation made by Vicencio need not be material to his eligibility as a candidate in order to hold him liable under Section 262. The COMELEC En Banc further ruled that election offenses are mala prohibita, in which case no proof of criminal intent is required and good faith, ignorance, or lack of malice are not valid defenses. Vicencio moved for reconsideration. The COMELEC En Banc reconsidered its earlier Resolution. Petitioners filed a motion for reconsideration, which the COMELEC En Banc denied declaring that while it "condemn[ed] in the strongest possible terms" private respondent's "morally appalling, devious, calculating, and deceitful" act, it could not prosecute private respondent for an election offense, but possibly only for an administrative or criminal offense. Hence, this petition. ISSUE: Whether or not an alleged misrepresentation of profession or occupation on a certificate of candidacy punishable as an election offense under Section 262 in relation to Section 74 of B.P. 881 HELD: The petition is DISMISSED. The En Banc Resolutions of the Commission on Elections is AFFIRMED. In urging the Court to order the COMELEC to file the necessary information against Vicencio, petitioners invoke Sections 262 and 74 of B.P. 881 According to the Supreme Court, the penal coverage of Section 262 is limited. The Court explained that the listing of sections in Section 262 is introduced by the clause: "Violation of the provisions, or pertinent portions, of the following sections shall constitute election offenses: x x x." The phraseology of this introductory clause alerts us that Section 262 itself possibly limits its coverage to only pertinent portions of Section 74. That such a possibility exists must not be taken lightly for two reasons. First, were the phrase not necessary, the law's framers would have instead directly declared that violation of "the provisions" or "any provision" of the enumerated sections without any qualification would constitute an election offense. It is a settled principle in statutory construction that whenever possible, a legal provision, phrase, or word must not be so construed as to be meaningless and a useless surplusage in the sense of adding nothing to the law or having no effect on it. Second, equally well-settled is the rule that a statute imposing criminal liability should be construed narrowly in its coverage such that only those offenses clearly included, beyond reasonable doubt, will be considered within the operation of the statute. Section 74 enumerates all information which a person running for public office must supply the COMELEC in a sworn certificate of candidacy. It does not expressly mention which portion in its provisions is pertinent to Section 262, or which among its provisions when violated is punishable as an election offense. Nothing in Section 74 partakes unmistakably of a penal clause or a positive prohibition comparable to those found in other sections also mentioned in Section 262 that use the words "shall not." The Court is then left to interpret the meaning of Section 74 to determine which of its provisions are penalized under Section 262, and particularly if disclosure of profession or occupation is among such provisions.

The SC rulings in Abella v. Larrazabal and Salcedo clarified the concept of misrepresentation under B.P. 881. From these two cases several conclusions follow. First, a misrepresentation in a certificate of candidacy is material when it refers to a qualification for elective office and affects the candidate's eligibility. Second, when a candidate commits a material misrepresentation, he or she may be proceeded against through a petition to deny due course to or cancel a certificate of candidacy under Section 78, or through criminal prosecution under Section 262 for violation of Section 74. Third, a misrepresentation of a non-material fact, or a non-material misrepresentation, is not a ground to deny due course to or cancel a certificate of candidacy under Section 78. In other words, for a candidate's certificate of candidacy to be denied due course or canceled by the COMELEC, the fact misrepresented must pertain to a qualification for the office sought by the candidate. The SC further explained that profession or occupation is not a qualification for elective office, and therefore not a material fact in a certificate of candidacy. No elective office, not even the office of the President of the Republic of the Philippines, requires a certain profession or occupation as a qualification. For local elective offices including that of punong barangay, Republic Act No. 7160 (R.A. 7160) or the Local Government Code of 1991 prescribes only qualifications pertaining to citizenship, registration as a voter, residence, and language. Profession or occupation not being a qualification for elective office, misrepresentation of such does not constitute a material misrepresentation. Certainly, in a situation where a candidate misrepresents his or her profession or occupation in the certificate of candidacy, the candidate may not be disqualified from running for office under Section 78 as his or her certificate of candidacy cannot be denied due course or canceled on such ground. #5 ROMMEL APOLINARIO JALOSJOS v. COMMISSION ON ELECTIONS and DAN ERASMO, SR. G.R. No. 191970, 24 April 2012, EN BANC (Abad, J.) To insist that the candidate own the house where he lives to establish his residence or domicile in a particular place would make property a qualification for public office; what matters is that a candidate has proven two things: actual physical presence in such place and an intention of making it his domicile. Petitioner Rommel Apolinario Jalosjos was eight years old when he left Quezon City, his place of birth. Subsequently, Jalosjos migrated to Australia where he acquired Australian citizenship. At the age of 35, Jalosjos decided to return to the Philippines and lived with his brother in Zamboanga Sibugay. Jalosjos took an oath of allegiance to the Republic of the Philippines and was issued a Certificate of Reacquisition of Philippine Citizenship by the Bureau of Immigration. Jalosjos also executed a sworn renunciation of his Australian citizenship in compliance with Republic Act (R.A.) 9225. Jalosjos then bought a residential property in the same village and a fishpond in San Isidro, Naga, Zamboanga Sibugay. Acting on Jalosjos' application for registration as a voter in the Municipality of Ipil, the Election Registration Board approved it and included Jalosjos' name in the respondent Commission on Elections' (COMELEC) voters list. Jalosjos filed his Certificate of Candidacy (COC) for Governor of Zamboanga Sibugay for the May 2010 elections. Co-Respondent Dan Erasmo, Sr., the Barangay Captain, filed a petition to cancel Jalosjos' COC on the ground that Jalosjos made material misrepresentation in his COC since he failed to comply with (1) the requirements of R.A. 9225 and (2) the one-year residency requirement of the Local Government Code. After hearing, the COMELEC ruled that while Jalosjos had regained Philippine citizenship by complying with the requirements of R.A. 9225, he failed to present ample evidence of a bona fide intention to establish his domicile in Ipil, Zamboanga Sibugay.

ISSUE: Whether or not Jalosjos failed to present ample evidence of a bona fide intention of making Ipil, Zamboanga Sibugay his domicile HELD: The Local Government Code requires a candidate seeking the position of provincial governor to be a resident of the province for at least one 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 has 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. It is inevitable under these guidelines and the precedents applying them that Jalosjos has met the residency requirement for provincial governor of Zamboanga Sibugay. It is clear from the facts that Quezon City was Jalosjos' domicile of origin, the place of his birth. It may be taken for granted that Jalosjos effectively changed his domicile from Quezon City to Australia when he migrated there at the age of eight, acquired Australian citizenship, and lived in that country for 26 years. Australia became Jalosjos' domicile by operation of law and by choice. On the other hand, when Jalosjos came to the Philippines to live with his brother in Zamboanga Sibugay, it is evident that Jalosjos did so with intent to change his domicile for good. Jalosjos left Australia, gave up his Australian citizenship, and renounced his allegiance to that country. In addition, Jalsojos 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 Bureau of Immigration. 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. To hold that Jalosjos has not establish a new domicile in Zamboanga Sibugay despite the loss of his domicile of origin (Quezon City) and his domicile of choice and by operation of law (Australia) would violate the settled maxim that a man must have a domicile or residence somewhere. Indeed, 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 proven two things: actual physical presence in Ipil and an intention of making it his domicile. #6 SILVERIO R. TAGOLINO, vs. HRET & LUCY MARIE TORRES-GOMEZ, G.R. No. 202202 March 19, 2013 PERLAS-BERNABE, J.: FACTS: Assailed in this Petition for Certiorari and Prohibition R65 is the March 22, 2012 Decision of the HRET w/c declared the validity of private respondent Lucy Marie Torres-Gomezs substitution as the Liberal Partys replacement candidate for the position of Leyte Representative 4th distrcit in lieu of Richard.

Juntilla(opposing candidate) asserted that Richard failed to meet the one (1) year residency requirement under Section 6, Article VI of the 1987 Constitution and thus should be declared disqualified/ineligible to run for the said office. He also prayed that Richards CoC be denied due course and/or cancelled. On February 17, 2010, the COMELEC First Division rendered a Resolution granting Juntillas petition without any qualification. .WHEREFORE, premises considered xxxx RICHARD is DISQUALIFIED as a candidate for Congressman,for lack of residency requirement.xxxxxSO ORDERED.Richard moved for reconsideration (denied May 4, 2010). Thereafter, in a Manifestation of even date, Richard accepted the resolution with finality "in order to enable his substitute to facilitate the filing of the necessary documents for substitution." On May 5, 2010, Lucy filed her CoC with endorsement of Liberal Party as substitute candidate for her. COMELEC Law Dept approved the substitution (May 8, 2010). Juntilla opposed the substitution.The crux of the opposition stemmed from the issue that there should be no substitution because there is no candidate to substitute for. It must be stressed that the resolution of the COMELEC First Division speaks for disqualification of candidate Richard and not of cancellation of his Certificate of Candidacy: The resolution was affirmed En Banc (May 04, 2010). On May 11, 2010, Juntilla filed an Extremely Urgent Motion to resolve the pending May 9, 2010 Motion(Questioning the substitution) The motion remained unacted. (Due to the conduct of election on May 10 Lucy won.) On May 24, 2010, petitioner filed for quo warranto before the HRET. HRET (March 22, 2012) dismissed the quo warranto petition and declared that Lucy was a qualified candidate; that the resolution denying Richards candidacy spoke of disqualification and not of CoC cancellation. Hence, it held that the substitution of private respondent in lieu of Richard was legal and valid. ISSUE: WON substitution made was proper? Ruling: A. Distinction between a petition for disqualification and a petition to deny due course to/cancel a certificate of candidacy The Omnibus Election Code (OEC) provides for certain remedies to assail a candidates bid for public office. Among these which obtain particular significance to this case are: (1) a petition for disqualification under Section 68; and (2) a petition to deny due course to and/or cancel a certificate of candidacy under Section 78. The distinctions between the two are well-perceived. Primarily, a disqualification case under Section 68 of the OEC is hinged on either: (a) a candidates possession of a permanent resident status in a foreign country; or (b) his or her commission of certain acts of disqualification. Anent the latter, the prohibited acts under Section 68 refer to election offenses under the OEC, and not to violations of other penal laws. Accordingly, the same provision (Section 68) states that any candidate who, in an action or protest in which he or she is a party, is declared by final decision of a competent court guilty of, or found by the COMELEC to have committed any of the foregoing acts shall be disqualified from continuing as a candidate for public office, or disallowed from holding the same, if he or she had already been elected. It must be stressed that one who is disqualified under Section 68 is still technically considered to have been a candidate, albeit proscribed to continue as such only because of supervening infractions which do not, however, deny his or her statutory eligibility. In other words, while the candidates compliance with the eligibility requirements as prescribed by law, such as age, residency, and citizenship, is not in question, he or

she is, however, ordered to discontinue such candidacy as a form of penal sanction brought by the commission of the above-mentioned election offenses. On the other hand, a denial of due course to and/or cancellation of a CoC proceeding under Section 78 of the OEC is premised on a persons misrepresentation of any of the material qualifications required for the elective office aspired for. It is not enough that a person lacks the relevant qualification; he or she must have also made a false representation of the same in the CoC. Pertinently, while a disqualified candidate under Section 68 is still considered to have been a candidate for all intents and purposes, on the other hand, a person whose CoC had been denied due course to and/or cancelled under Section 78 is deemed to have not been a candidate at all. B. Valid CoC as a condition sine qua non for candidate substitution Sec. 77. Candidates in case of death, disqualification or withdrawal of another. - If 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. (Emphasis supplied) Evidently, Section 77 requires that there be an "official candidate" before candidate substitution proceeds. Thus, whether the ground for substitution is death, withdrawal or disqualification of a candidate, the said section unequivocally states that only an official candidate of a registered or accredited party may be substituted. C. Divergent effects of disqualification and denial of due course to and/or cancellation of CoC cases vis-vis candidate substitution Proceeding, from the foregoing discourse, it is evident that there lies a clear-cut distinction between a disqualification case under Section 68 and denial of due course to and/or cancellation of COC case under Section 78 vis--vis their respective effects on candidate substitution under Section 77.1wphi1 A candidate who is disqualified under S68 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 to and/or cancelled under S78 cannot be substituted because he is not considered a candidate. On this note, it is equally revelatory that Section 77 expressly enumerates the instances where substitution is permissible, that is when an official candidate of a registered or accredited political party "dies, withdraws or is disqualified for any cause." Noticeably, material misrepresentation cases are not included in the said section and therefore, cannot be a valid basis to proceed with candidate substitution. D. Application to the case at bar it is undisputed that Richard was disqualified comply with the one year residency requirement. The confusion, however, stemmed from the use of the word "disqualified" in the Resolution of the COMELEC First Division, which was adopted by the COMELEC En Banc in granting the substitution of private respondent, and even further perpetuated by the HRET in denying the quo warranto petition. In short, a finding that Richard was merely disqualified and not that his CoC was denied due course to and/or cancelled would mean that he could have been validly substitute by private respondent, thereby legitimizing her candidacy. Yet the fact that the First Divisions Resolution did not explicitly decree the denial of due course to an d/or cancellation of Richards CoC.

It should be stressed that the clear and unequivocal basis for Richards "disqualification" is his failure to comply with the residency requirement under Section 6, Article VI of the Constitution which is a ground for the denial of due course to and/or cancellation a CoC under Section 78 of the OEC, misrepresentation contemplated under a Section 78 petition refers to statements affecting ones qualifications for elective office such as age, residence and citizenship or non-possession of natural-born Filipino status. There is therefore no legal basis to support a finding of disqualification within the ambit of election laws. Obiter: Lest it be misunderstood, the HRET is not bound by previous COMELEC pronouncements relative to the qualifications of the Members of the House. Being the sole judge of all contests relating to the election, returns, and qualifications of its respective members, the HRET cannot be tied down by COMELEC resolutions, else its constitutional mandate be circumvented and rendered nugatory. No proper substitution. HRET Decision reversed. #7: Renato M. Federico,petitioner vs. COMELEC and Osmundo M. Maligaya, respondents Facts: Edna Sanchez (Edna) and respondent Maligaya were candidates for the mayoralty of Sto. Tomas Batangas during the May 10, 2010 Automated National and Local Elections. Several days before the election, Ednas husband who was a gubernatorial candidate for Batangas died. Two days after the death, EDNA withdrew her COC for mayoralty and filed a new COC and Certificate of Nomination and Acceptance (CONA) as a substitute for her deceased husband. Five days before the election, petitioner Federico filed his COC and CONA as substitute for Edna. Respondent file his opposition for the COC of Federico as the period to file for substitute candidates had lapsed already after December 31, 2009. Two days before the election, COMELEC en banc ruled that Edna and Federico were valid substitute. However the official ballots had already been printed retaining the name of Edna as mayor candidate. A First Certificate of Canvass of Votes and Proclamation (COCVP) was issued by the Municipal Board of Canvassers (MBOC) proclaimed Edna as the mayor where respondent filed a petition to annul her proclamation but was later on withdrawn. Later, A Second COCVP was issued by the MBOC bearing the same date, time and same number of votes as with the First COCVP garnered by Edna being credited to petitioner. A petition for Annulment of petitioners proclamation was filed by respondent which was denied by the COMELEC First Division as this was filed out of time. Respondent filed with the COMELEC en banc a Verified Partial Motion that his petition was filed on time and that substitution of petitioner was null and void. Further, he contended that the Second COCVP was questionable and it was impossible for petitioner to be the winner as the canvassing was in the name of Edna. The en banc granted Maligayas motion and declared him as the duly elected mayor. Petitioners proclamation was not proper as his substitution was for Edna invalid. Hence, this petition. Issue: Whether COMELEC gravely abused its discretion when it annulled petitioners proclamation as the winning candidate on the ground that his substitution as mayoralty was void?

Held: No. Under COMELEC Resolution No. 8678, Section 13, the substitute for a candidate who withdrew may file his COC not later than December 31, 2009. The substitute for a candidate who died or suffered permanent incapacity or disqualified by final judgment, may file his COC up to mid-day of election. It is clear from the foregoing that different deadlines were set for substitution by reason of death, disqualification or withdrawal. The reason for the distinction can easily be divined. Unlike death and disqualification, withdrawal is voluntary. In the case, the vacancy in the mayoralty race was due to withdrawal of Edna and not by death of Ednas husband. The Court agrees with OSG that petitioners substitution for Edna was void as it was in contravention of the guidelines set forth under Resolution No. 8678. With respect to Federico, it cannot be regarded as a valid source of any right, like the right to be voted for public office. Indeed, a void judgment can never be final and executory and may be assailed at any time. "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." As to the votes garnered by Edna, it cannot be credited to petitioner as he was never a legitimate candidate. As there was an invalid substitution, there could not be a valid proclamation. There was only one qualified candidate in the mayoralty race. Respondent Maligaya being the only candidate, he is the duly elected mayor. Ruling for the Motion to Intervene by the V-Mayor Silva for Petitioners invalid substitution Respondent was not a second placer but the sole and only placer in the election. #8 G.R. No. 193237 October 9, 2012 DOMINADOR G. JALOSJOS, JR., Petitioner, vs. COMMISSION ON ELECTIONS CARDINO, Respondents. x-----------------------x G.R. No. 193536 AGAPITO J. CARDINO, Petitioner, vs. DOMINADOR G. JALOSJOS, JR., and ELECTIONS, Respondents. and AGAPITO J.

COMMISSION

ON

FACTS: Both Jalosjos and Cardino were candidates for Mayor of Dapitan City, Zamboanga del Norte in the May 2010 elections. Jalosjos was running for his third term. Cardino filed on 6 December 2009 a petition under Section 78 of the Omnibus Election Code to deny due course and to cancel the certificate of candidacy of Jalosjos. Cardino asserted that Jalosjos made a false material representation in his certificate of candidacy when he declared under oath that he was eligible for the Office of Mayor. Cardino claimed that long before Jalosjos filed his certificate of candidacy, Jalosjos had already been convicted by final judgment for robbery and sentenced to prisin mayor by the Regional Trial Court, Branch 18 (RTC) of Cebu City, in Criminal Case No. CCC-XIV-140-CEBU. Cardino asserted that Jalosjos has not yet served his sentence. Jalosjos admitted his conviction but stated that he had already been granted probation. Cardino countered that the RTC revoked Jalosjos probation in an Order dated 19 March 1987. Jalosjos refuted Cardino and stated that the RTC issued an Order dated 5 February 2004 declaring that Jalosjos had duly complied with the order of probation. Jalosjos further stated that during the 2004 elections the COMELEC denied a petition for disqualification filed against him on the same grounds. On 10 May 2010, the COMELEC First Division granted Cardinos petition and cancelled Jalosjos certificate of candidacy. The COMELEC First Division concluded that "Jalosjos has indeed committed material

misrepresentation in his certificate of candidacy when he declared, under oath, that he is eligible for the office he seeks to be elected to when in fact he is not by reason of a final judgment in a criminal case, the sentence of which he has not yet served." The COMELEC First Division found that Jalosjos certificate of compliance of probation was fraudulently issued; thus, Jalosjos has not yet served his sentence. The penalty imposed on Jalosjos was the indeterminate sentence of one year, eight months and twenty days of prisin correccional as minimum, to four years, two months and one day of prisin mayor as maximum. The COMELEC First Division ruled that Jalosjos "is not eligible by reason of his disqualification as provided for in Section 40(a) of Republic Act No. 7160." On 11 August 2010, the COMELEC En Banc denied Jalosjos motion for reconsideration Jalosjos filed his petition on 25 August 2010, docketed as G.R. No. 193237, while Cardino filed his petition on 17 September 2010, docketed as G.R. No. 193536.VOn 22 February 2011, this Court issued a Resolution dismissing G.R. No. 193237. Cardino filed a Manifestation on 17 March 2011 praying that this Court take judicial notice of its resolution in G.R. No. 193237. Jalosjos filed a Motion for Reconsideration on 22 March 2011. On 29 March 2011, this Court resolved to consolidate G.R. No. 193536 with G.R. No. 193237.Jalosjos then filed a Manifestation on 1 June 2012 which stated that "he has resigned from the position of Mayor of the City of Dapitan effective 30 April 2012, which resignation was accepted by the Provincial Governor of Zamboanga del Norte, Atty. Rolando E. Yebes." Jalosjos resignation was made "in deference with the provision of the Omnibus Election Code in relation to his candidacy as Provincial Governor of Zamboanga del Sur in May 2013." These cases are not rendered moot by Jalosjos resignation. In resolving Jalosjos Motion for Reconsideration in G.R. No. 193237 and Cardinos Petition in G.R. No. 193536, we address not only Jalosjos eligibility to run for public office and the consequences of the cancellation of his certificate of candidacy, but also COMELECs constitutional duty to enforce and administer all laws relating to the conduct of elections. ISSUES: 1. Whether Jalosjos made a false statement of a material fact in his certificate of candidacy when he stated under oath that he was eligible to run for mayor. 2. Whether COMELEC properly cancelled Jalosjos certificate of candidacy. HELD: 1. YES. The perpetual special disqualification against Jalosjos arising from his criminal conviction by final judgment is a material fact involving eligibility which is a proper ground for a petition under Section 78 of the Omnibus Election Code. Jalosjos certificate of candidacy was void from the start since he was not eligible to run for any public office at the time he filed his certificate of candidacy. Jalosjos was never a candidate at any time, and all votes for Jalosjos were stray votes. As a result of Jalosjos certificate of candidacy being void ab initio, Cardino, as the only qualified candidate, actually garnered the highest number of votes for the position of Mayor. A false statement in a certificate of candidacy that a candidate is eligible to run for public office is a false material representation which is a ground for a petition under Section 78 of the same Code. Section 74 requires the candidate to state under oath in his certificate of candidacy "that he is eligible for said office." A candidate is eligible if he has a right to run for the public office. If a candidate is not actually eligible because he is barred by final judgment in a criminal case from running for public office, and he still states under oath in his certificate of candidacy that he is eligible to run for public office, then the candidate clearly makes a false material representation that is a ground for a petition under Section 78 (Petition to deny due course to or cancel a certificate of candidacy).

A sentence of prisin mayor by final judgment is a ground for disqualification under Section 40 of the Local Government Code and under Section 12 of the Omnibus Election Code. It is also a material fact involving the eligibility of a candidate under Sections 74 and 78 of the Omnibus Election Code. Thus, a person can file a petition under Section 40 of the Local Government Code or under either Section 12 or Section 78 of the Omnibus Election Code. The pertinent provisions read: Section 40, Local Government Code: Sec. 40. Disqualifications. - The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; (b) Those removed from office as a result of an administrative case; (c) Those convicted by final judgment for violating the oath of allegiance to the Republic; (d) Those with dual citizenship; (e) Fugitives from justice in criminal or non-political cases here or abroad; (f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and (g) The insane or feeble-minded. Section 12, Omnibus Election Code: Sec. 12. Disqualifications. Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he was sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified. Conviction for robbery by final judgment with the penalty of prisin mayor, to which perpetual special disqualification attaches by operation of law, is not a ground for a petition under Section 68 because robbery is not one of the offenses enumerated in Section 68. Insofar as crimes are concerned, Section 68 refers only to election offenses under the Omnibus Election Code and not to crimes under the Revised Penal Code. For ready reference, we quote Section 68 of the Omnibus Election Code: Sec. 68. Disqualifications. Any candidate who, in an action or protest in which he is a party is declared by final decision by a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. There is absolutely nothing in the language of Section 68 that will justify including the crime of robbery as one of the offenses enumerated in this Section. All the offenses enumerated in Section 68 refer to offenses under the Omnibus Election Code. The dissenting opinion of Justice Reyes gravely errs when it holds that Jalosjos

conviction for the crime of robbery under the Revised Penal Code is a ground for "a petition for disqualification under Section 68 of the OEC and not for cancellation of COC under Section 78 thereof." This Court has already ruled that offenses punished in laws other than in the Omnibus Election Code cannot be a ground for a petition under Section 68. In Codilla, Sr. v. de Venecia,19 the Court declared: The jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Section 68 of the Omnibus Election Code. All other election offenses are beyond the ambit of COMELEC jurisdiction.They are criminal and not administrative in nature. (Emphasis supplied) A candidate for mayor during the 2010 local elections certifies under oath four statements: (1) a statement that the candidate is a natural born or naturalized Filipino citizen; (2) a statement that the candidate is not a permanent resident of, or immigrant to, a foreign country; (3) a statement that the candidate is eligible for the office he seeks election; and (4) a statement of the candidates allegia nce to the Constitution of the Republic of the Philippines. The COMELEC and the dissenting opinions all found that Jalosjos was not eligible to run for public office. The COMELEC concluded that Jalosjos made a false material representation that is a ground for a petition under Section 78. The dissenting opinion of Justice Reyes, however, concluded that the ineligibility of Jalosjos is a disqualification which is a ground for a petition under Section 68 and not under Section 78. The dissenting opinion of Justice Brion concluded that the ineligibility of Jalosjos is a disqualification that is not a ground under Section 78 without, however, saying under what specific provision of law a petition against Jalosjos can be filed to cancel his certificate of candidacy. What is indisputably clear is that the false material representation of Jalosjos is a ground for a petition under Section 78. However, since the false material representation arises from a crime penalized by prisin mayor, a petition under Section 12 of the Omnibus Election Code or Section 40 of the Local Government Code can also be properly filed. The petitioner has a choice whether to anchor his petition on Section 12 or Section 78 of the Omnibus Election Code, or on Section 40 of the Local Government Code. The law expressly provides multiple remedies and the choice of which remedy to adopt belongs to the petitioner. 2. YES. The COMELEC properly cancelled Jalosjos certificate of candidacy. A void certificate of ca ndidacy on the ground of ineligibility that existed at the time of the filing of the certificate of candidacy can never give rise to a valid candidacy, and much less to valid votes.21 Jalosjos certificate of candidacy was cancelled because he was ineligible from the start to run for Mayor. Whether his certificate of candidacy is cancelled before or after the elections is immaterial because the cancellation on such ground means he was never a valid candidate from the very beginning, his certificate of candidacy being void ab initio. Jalosjos ineligibility existed on the day he filed his certificate of candidacy, and the cancellation of his certificate of candidacy retroacted to the day he filed it. Thus, Cardino ran unopposed. There was only one qualified candidate for Mayor in the May 2010 elections Cardino who received the highest number of votes. Decisions of this Court holding that the second-placer cannot be proclaimed winner if the first-placer is disqualified or declared ineligible22 should be limited to situations where the certificate of candidacy of the first-placer was valid at the time of filing but subsequently had to be cancelled because of a violation of law that took place, or a legal impediment that took effect, after the filing of the certificate of candidacy. If the certificate of candidacy is void ab initio, then legally the person who filed such void certificate of candidacy was never a candidate in the elections at any time. All votes for such non-candidate are stray votes and should not be counted. Thus, such non-candidate can never be a first-placer in the elections. If a certificate of candidacy void ab initio is cancelled on the day, or before the day, of the election, prevailing jurisprudence holds that all votes for that candidate are stray votes.23 If a certificate of candidacy void ab initio is cancelled one day or more after the elections, all votes for such candidate should also be stray votes because the certificate of candidacy is void from the very beginning. This is the more equitable and logical

approach on the effect of the cancellation of a certificate of candidacy that is void ab initio. Otherwise, a certificate of candidacy void ab initio can operate to defeat one or more valid certificates of candidacy for the same position. Even without a petition under either Section 12 or Section 78 of the Omnibus Election Code, or under Section 40 of the Local Government Code, the COMELEC is under a legal duty to cancel the certificate of candidacy of anyone suffering from the accessory penalty of perpetual special disqualification to run for public office by virtue of a final judgment of conviction. The final judgment of conviction is notice to the COMELEC of the disqualification of the convict from running for public office. The law itself bars the convict from running for public office, and the disqualification is part of the final judgment of conviction. The final judgment of the court is addressed not only to the Executive branch, but also to other government agencies tasked to implement the final judgment under the law. WHEREFORE, the Motion for Reconsideration in G.R. No. 193237 is DENIED, and the Petition in G.R. No. 193536 is GRANTED. The Resolutions dated 10 May 2010 and 11 August 2010 of the COMELEC First Division and the COMELEC En Bane, respectively, in SPA No. 09-076 (DC), are AFFIRMED with the MODIFICATION that Agapito J. Cardino ran unopposed in the May 2010 elections and thus received the highest number of votes for Mayor. The COMELEC En Bane is DIRECTED to constitute a Special City Board of Canvassers to proclaim Agapito J. Cardino as the duly elected Mayor of Dapitan City, Zamboanga del Norte. #9 Casan MacodeMaquiling vs. COMELEC, Rommel Arnado Y. Cagoco, Linog G. Balua G.R. No. 195649,April 16, 2013 Facts:Respondent Arnado is a natural born Filipino citizen. However, as a consequenceof his subsequent naturalization as a citizen of the United States of America,he lost his Filipino citizenship. Arnado applied for repatriation underRepublic Act (R.A.) No. 9225 before the Consulate General of the Philippines inSan Franciso, USA and took the Oath of Allegiance to the Republic of thePhilippines on 10 July 2008. On the same day an Order of Approval of hisCitizenship Retention and Re-acquisition was issued in his favor. He again tookhis oath of allegiance to the republic and executed an affidavit ofrenunciation of his foreign citizenship on April 3, 2009. On November 30, 2009,Arnado filed his Certificate of Candidacy for Mayor of Kauswagan, Lanao delNorte. On April 28, 2010 Linog Balua, another mayoralty candidate filed apetition to disqualify and/or to cancel Arnados certificate of candidacy formunicipal mayor of Kauswagan, Lanao del Norte. Balua contended that Arnado isnot a resident of Kauswagan and that he is a foreigner, attaching thereto acertification from the Bureau of Immigration indicating therein his nationalityas USA-American. Subsequently, Arnado garnered the highest number of votes andproclaimed as the winner. The COMELEC First Division treated the petition as anaction for disqualification. It granted the petition for disqualification filedagainst Arnado, annulled his proclamation as the winning candidate forMunicipal Mayor of Kauswagan, Lanao del Norte and ruled that an order ofsuccession under Sec. 44 of the LGC take effect. Meanwhile, Petitioner CasanMacode Maquiling, another candidate for mayor who got the second highest numberof votes, intervened in the case and filed before the Comelec en banc. Also,Arnado filed a motion for reconsideration. It reversed and set aside theComelec 1st Divisions decision and granted Arnados motion. Hence, thispetition. Issues: May an interventionbe allowed in a disqualification case? Does the use of a foreign passport afterrenouncing foreign undo the latter? Should petitioner be proclaimed the winner? Ruling: Yes.Intervention is proper in a disqualification case when there has not yet beenany proclamation of the winner. The claim of respondent Arnado that the maincase before the COMELEC had attained finality is wrong. The disqualificationcase will only attain finality after the Supreme Court has ruled upon it sinceit was brought to it through rule 64 of the Rules of Court. Yes. While theuse of a foreign passport even after renunciation does not divest respondentArnado of his Filipino citizenship, it is a positive act showing a continuedpossession of a foreign citizenship. The use of a

foreign passport is arepresentation that respondent Arnado was a declaration by the same that he isan American citizen. [Note: he is a dual citizen by virtue of naturalization.He is required to take an oath of renunciation of his foreign citizenship andan oath of allegiance to the Philippines. Compare to a dual citizen jus solis.] Yes. Sincerespondent Arnado, by virtue of the reversal of his renunciation, was not aqualified candidate from the beginning, it was petitioner who garnered thehighest number of votes as a qualified candidate. The votes given to respondentArnado are to be considered as stray votes. #10 Penera vs. COMELEC (DECISION) G.R. 181613; 11 September 2009 (Chico-Nazario) Facts: The COMELEC disqualified petitioner Rosalinda A. Penera (Penera) as a candidate for mayor of the Municipality of Sta. Monica, Surigao del Norte, for unlawfully engaging in election campaign before the start of the campaign period for the 2007 Synchronized National and Local Elections, in violation of Section 80 of Batas Pambansa 881 (the Omnibus Election Code). The COMELEC found that Penera and her party-mates, after filing their CoCs, conducted a motorcade through Sta. Monica and threw candies to onlookers,aboard trucks festooned with balloons and banners bearing their names and pictures and the municipal positions for which they were seeking election, one of which trucks had a soundsystem that broadcast their intent to run in the 2007 elections. COMELEC Commissioner Rene V. Sarmiento dissented. He emphasized that underSection 15 of Republic Act 8436 (the law authorizing the COMELEC to use an automated election system for the process of voting, counting of votes, and canvassing/consolidating the results of the national and local elections), as amended by Republic Act No. 9369, one is now considered a candidate only at the start of the campaign period. Thus, before the start of thecampaign period, there can be no election campaign or partisan political activity because there is no candidate to speak of. Accordingly, Penera could not be disqualified for premature campaigning because the motorcade took place outside the campaign period when Penera was not yet a candidate. Sarmiento posited that Section 15 of R.A. No. 8436, as amended by R.A.9369, has practically made it impossible to commit premature campaigning at any time, and has, thus, effectively repealed Section 80 of the Omnibus Election Code. Penera filed a Petition for Certiorari before the Supreme Court to nullify the disqualification. She argued that the evidence was grossly insufficient to warrant the COMELECs ruling. She maintained that the motorcade was spontaneous and unplanned, and the supporters merely joined her and the other candidates. Issue: Whether or not Penera should be disqualified for engaging in election campaign or partisan political activity outside the campaign period. RULING: (A) SC En Banc dismissed Peneras Petition and affirmed her disqualification because: (1) Penera raised a question of fact. The Supreme Court is not a trier of facts, and the sole function of a writ of certiorari is to address issues of want of jurisdiction or grave abuse of discretion, and does not include a review of the tribunals evaluation of the evidence. (2) The COMELEC did not gravely abuse its discretion. Evidence presented to the COMELEC, including Peneras own evidence and admissions, sufficiently established that Penera and h er partymates, after filing their COCs x x, participated in a motorcade which passed through the different barangays of Sta. Monica, waived their hands to the public, and threw candies to the onlookers. With vehicles, balloons, and even candies on hand, Penera can hardly persuade the Court that the motorcade was spontaneous and unplanned.

(T)he conduct of a motorcade is a form of election campaign or partisan political activity, falling squarely within the ambit of Section 79(b)(2) of the OEC, on [h]olding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate[.] x x The obvious purpose of the conduct of motorcades is to introduce the candidates and the positions, to which they seek to be elected, to the voting public; or to make them more visible so as to facilitate the recognition and recollection of their names in the minds of the voters come election time. Unmistakably, motorcades are undertaken for no other purpose than to promote the election of a particular candidate or candidates. S80 of OEC prohibits any person, whether a voter, a candidate or a party, from engaging in any election campaign or partisan political activity outside the campaign period (except that political parties may hold political conventions or meetings to nominate their official candidates within 30 days before the campaign period and 45 days for Presidential and Vice-Presidential election). And, under S68, a candidate declared by final decision to have engaged in premature campaigning shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Said candidate may also face criminal prosecution for an election offense under Section 262 of the same Code. Thus, Penera, who had been elected Mayor of Sta. Monica before the COMELEC rendered its decision, was disqualified from holding the said office. The proclaimed Vice-Mayor was declared her rightful successor pursuant to Section 44 of the Local Government Code which provides that if the mayor fails to qualify or is removed from office, the vice-mayor shall become the mayor. (B) SC disagreed with COMELEC Commissioner Sarmiento, saying that Section 80 of the Omnibus Election Code remains relevant and applicable despite Section 15 of RA 8436, as amended. The Court gave the following reasons: There is no absolute and irreconcilable incompatibility between S15 RA 8436 and S80 of the OEC, whichprohibits premature campaigning. It is possible to harmonize and reconcile these two provisionsand, thus, give effect to both, to wit: (a) Section 80 of the Omnibus Election Code prohibits any person, whether or not a voter or candidate from engaging in election campaign or partisan political activity outside the campaign period. Thus, prematurecampaigning may be committed even by a person who is not a candidate. Accordingly, the declaration in Lanot vs. COMELEC that what the law prohibits is an election campaign or partisan political activity by a candidate outsideof the campaign period, is erroneous. (b) It is true that S15 RA 8436, a person is not yet officially considered a candidate before the start of the campaign period, even after the filing of his CoC. Nonetheless, upon the filing of his COC, such person already explicitly declares his intention to run as a candidate. When the campaign period starts and he proceeds with his candidacy, his intent turning into actuality, act/s constituting election campaign or partisan activity under Section 79(b) of the Omnibus Election Code (holding rallies or parades, making speeches, etc.), which he may have committed after filing his CoC and before the campaign period, can already be considered as the promotion of his election as a candidate, constituting premature campaigning, for which he may be disqualified. Conversely, if he withdraws his CoC before the campaign period, his act can no longer be viewed as for the promotion of his election, andthere can be no premature campaigning as there is no candidate to begin with. Thus, a person, after filing his/her COC but prior to his becoming a candidate (prior to the start of the campaign period), can already commit the acts described under Section 79(b) of the Omnibus Election Code as election campaign or partisan political activity. However, it is only after said person officially

becomes a candidate, at the beginning of the campaign period, can said acts be given effect as premature campaigning under Section 80 of the OEC. Only after said person officially becomes a candidate, at the start of the campaign period, can his/her disqualification be sought for acts constituting premature campaigning. (c) While a proviso in S15 provides that any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period, this does not mean that the acts constituting premature campaigning can only be committed during the campaign period. Nowhere in the said proviso was it stated that campaigning before the start of the campaign period is lawful. If the Court were to rule otherwise, not only will the prohibited act of premature campaigning be officially decriminalized, the significance of having a campaign period before the elections would also be negated. Any unscrupulous individual with the deepest of campaign war chests could then afford to spend his/her resources to promote his/her candidacy well ahead of everyone else, thus, undermine the conduct of fair and credible elections. Such is the very evil that the law seeks to prevent. Our lawmakers could not have intended to cause such an absurd situation. #10A Penera, Rosalinda A. vs. COMELEC and Edgar T. Andanar Supreme Court En Banc (Resolution) G.R. No. 181613 November 25, 2009 CARPIO FACTS: Petitioner and private respondents were candidates for mayor of the Municipality of Sta.Monica, Surigao del Norte in the last May 2007 elections. The former filed her certificate of candidacy on the day before the prescribed campaign period. When she went to the COMELEC Office for filing she was accompanied by her partymates. Thereafter, they had a motorcade which was consist of two trucks and ten motorcycles running around the municipality convincing the residents to vote for her and the other candidates of their political party. Due to this, private respondent filed a petition against her alleging premature campaigning as provided in the Omnibus Election Code Section 80 which says: Election 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. She argued that she is not guilty since she was not yet a candidate at that time and the campaign period has not yet started when the motorcade was conducted. While the petition was pending in the COMELEC, she was voted as mayor and took her office thereafter. The COMELEC Second Division decided in favor of the complainant and found her guilty of premature campaigning. Likewise, when she appealed in the COMELEC En Banc, the previous decision was affirmed. Subsequently, she filed with the Supreme Court which decided against her. It held that the conduct of the motorcade is a form of election campaign or partisan political activity, falling under Section 79(b)(2) of the Omnibus Election Code which says: [h]olding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate[.] Furthermore, it was held that she should vacate the position. Now, she comes for a motion for reconsideration using the same arguments. ISSUE: Is petitioner guilty of premature campaigning?

Any act is lawful unless expressly declared unlawful by law. It is enough that Congress stated that any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period. So, it is lawful if done before the start of the campaign period. This plain language of the law need not be construed further. Moreover, on the day of the motorcade, she was not yet a candidate for. As what was decided in the Lanot Case which says that prior to the campaign period, even if the candidate has filed his/her certificate of candidacy, he/she is not yet considered as a candidate for purposes other than the printing of ballots. Hence, she cannot be guilty of premature campaigning for in the first place there is no candidate to talk about. What she did was an exercise of her freedom of expression. Dispositive: WHEREFORE, we GRANT petitioner Rosalinda A. Peneras Motion for Reconsideration. We SET ASIDE the Decision of this Court in G.R. No. 181613 promulgated on 11 September 2009, as well as the Resolutions dated 24 July 2007 and 30 January 2008 of the COMELEC Second Division and the COMELEC En Banc, respectively, in SPA No. 07-224. Rosalinda A. Penera shall continue as Mayor of Sta. Monica, Surigao del Norte. DISSENTING OPINIONS: Chico-Nazario, J: It is obvious that the motorcade was planned to gain more votes from their constituents. Even if she was not yet a candidate at that time, she can he held guilty of premature campaigning as an ordinary citizen committing the prohibited act. Abad, J: But the fact that Penera was not yet a candidate before she actually handed in her certificate of candidacy to the designated COMELEC official does not exempt her from the prohibition against engaging in premature election campaign. Section 80 which imposes the ban ensnares any person, even a noncandidate. Penera vs. Commission on Elections (COMELEC), et al. G.R. 181613; 11 September 2009 Facts: The COMELEC disqualified petitioner Rosalinda A. Penera (Penera) as a candidate for mayor of the Municipality of Sta. Monica, Surigao del Norte, for unlawfully engaging in election campaign before the start of the campaign period for the 2007 Synchronized National and Local Elections, in violation of Section 80 of Batas Pambansa 881 (the Omnibus Election Code). The COMELEC found that Penera and her party-mates, after filing their Certificates of Candidacy (CoCs), conducted a motorcade through Sta. Monica and threw candies to onlookers, aboard trucks festooned with balloons and banners bearing their names and pictures and the municipal positions for which they were seeking election, one of which trucks had a sound system that broadcast their intent to run in the 2007 elections. COMELEC Commissioner Rene V. Sarmiento dissented. He emphasized that under Section 15 of Republic Act 8436 (the law authorizing the COMELEC to use an automated election system for the process of voting, counting of votes, and canvassing/consolidating the results of the national and local elections), as amended by Republic Act No. 9369, one is now considered a candidate only at the start of the campaign period. Thus, before the start of the campaign period, there can be no election campaign or partisan political activity because there is no candidate to speak of. Accordingly, Penera could not be disqualified for premature campaigning because the motorcade took place outside the campaign period when Penera was not yet a candidate. Sarmiento posited that Section 15 of R.A. No. 8436, as amended by R.A. 9369, has practically made it impossible to commit premature campaigning at any time, and has, thus, effectively repealed Section 80 of the Omnibus Election Code.

RULING: No, she is not.

Penera filed a Petition for Certiorari before the Supreme Court to nullify the disqualification. She argued that the evidence was grossly insufficient to warrant the COMELECs ruling. She maintained that the motorcade was spontaneous and unplanned, and the supporters merely joined her and the other candidates. Issue: Whether or not Penera should be disqualified for engaging in election campaign or partisan political activity outside the campaign period. Holding: (A) The Supreme Court En Banc dismissed Peneras Petition and affirmed her disqualification because: (1) Penera raised a question of fact. The Supreme Court is not a trier of facts, and the sole function of a writ of certiorari is to address issues of want of jurisdiction or grave abuse of discretion, and does not include a review of the tribunals evaluation of the evidence. (2) The COMELEC did not gravely abuse its discretion. Evidence presented to the COMELEC, including Peneras own evidence and admissions, sufficiently established that Penera and her partymates, after filing their COCs x x, participated in a motorcade which passed through the different barangays of Sta. Monica, waived their hands to the public, and threw candies to the onlookers. With vehicles, balloons, and even candies on hand, Penera can hardly persuade the Court that the motorcade was spontaneous and unplanned. (T)he conduct of a motorcade is a form of election campaign or partisan political activity, falling squarely within the ambit of Section 79(b)(2) of the Omnibus Election Code, on [h]olding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate[.] x x The obvious purpose of the conduct of motorcades is to introduce the candidates and the positions, to which they seek to be elected, to the voting public; or to make them more visible so as to facilitate the recognition and recollection of their names in the minds of the voters come election time. Unmistakably, motorcades are undertaken for no other purpose than to promote the election of a particular candidate or candidates. Section 80 of the Omnibus Election Code prohibits any person, whether a voter, a candidate or a party, from engaging in any election campaign or partisan political activity outside the campaign period (except that political parties may hold political conventions or meetings to nominate their official candidates within 30 days before the campaign period and 45 days for Presidential and VicePresidential election). And, under Section 68 of the Omnibus Election Code, a candidate declared by final decision to have engaged in premature campaigning shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Said candidate may also face criminal prosecution for an election offense under Section 262 of the same Code. Thus, Penera, who had been elected Mayor of Sta. Monica before the COMELEC rendered its decision, was disqualified from holding the said office. The proclaimed Vice-Mayor was declared her rightful successor pursuant to Section 44 of the Local Government Code which provides that if the mayor fails to qualify or is removed from office, the vice-mayor shall become the mayor. (B) The Supreme Court disagreed with COMELEC Commissioner Sarmiento, saying that Section 80 of the Omnibus Election Code remains relevant and applicable despite Section 15 of Republic Act No. 8436, as amended. The Court gave the following reasons:

(1) Republic Act No. 9369, which amended Republic Act No. 8436, did not expressly repeal Section 80 of the Omnibus Election Code. An express repeal may not be presumed. Implied repeals are disfavored, absent a showing of repugnance clear and convincing in character. When confronted with apparently conflicting statutes, courts should endeavor to reconcile the same instead of declaring outright the invalidity of one as against the other. (2) There is no absolute and irreconcilable incompatibility between Section 15 of Republic Act No. 8436, as amended, and Section 80 of the Omnibus Election Code, which prohibits premature campaigning. It is possible to harmonize and reconcile these two provisions and, thus, give effect to both, to wit: (a) Section 80 of the Omnibus Election Code prohibits any person, whether or not a voter or candidate from engaging in election campaign or partisan political activity outside the campaign period. Thus, premature campaigning may be committed even by a person who is not a candidate. Accordingly, the declaration in Lanot vs. COMELEC (G.R. No. 164858; 16 November 2006) that (w)hat Section 80 of the Omnibus Election Code prohibits is an election campaign or partisan political activity by a candidate outside of the campaign period, is erroneous. (b) It is true that under Section 15 of Republic Act No. 8436, as amended, a person is not yet officially considered a candidate before the start of the campaign period, even after the filing of his CoC. Nonetheless, upon the filing of his COC, such person already explicitly declares his intention to run as a candidate. When the campaign period starts and he proceeds with his candidacy, his intent turning into actuality, act/s constituting election campaign or partisan activity under Section 79(b) of the Omnibus Election Code (holding rallies or parades, making speeches, etc.), which he may have committed after filing his CoC and before the campaign period, can already be considered as the promotion of his election as a candidate, constituting premature campaigning, for which he may be disqualified. Conversely, if he withdraws his CoC before the campaign period, his act can no longer be viewed as for the promotion of his election, and there can be no premature campaigning as there is no candidate to begin with. Thus, a person, after filing his/her COC but prior to his becoming a candidate (prior to the start of the campaign period), can already commit the acts described under Section 79(b) of the Omnibus Election Code as election campaign or partisan political activity. However, it is only after said person officially becomes a candidate, at the beginning of the campaign period, can said acts be given effect as premature campaigning under Section 80 of the Omnibus Election Code. Only after said person officially becomes a candidate, at the start of the campaign period, can his/her disqualification be sought for acts constituting premature campaigning. (c) While a proviso in Section 15 of Republic Act No. 8436, as amended, provides that any unlawful or omission applicable to a candidate shall take effect only upon the start of the campaign period, does not mean that the acts constituting premature campaigning can only be committed during campaign period. Nowhere in the said proviso was it stated that campaigning before the start of campaign period is lawful. act this the the

If the Court were to rule otherwise, not only will the prohibited act of premature campaigning be officially decriminalized, the significance of having a campaign period before the elections would also be negated. Any unscrupulous individual with the deepest of campaign war chests could then afford to spend his/her resources to promote his/her candidacy well ahead of everyone else, thus, undermine the conduct of fair and credible elections. Such is the very evil that the law seeks to prevent. Our lawmakers could not have intended to cause such an absurd situation. Ponente: J. Minita V. Chico-Nazario

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#11: Casimira S. Dela Cruz,petitioner vs. COMELEC and John Loyd M. Pacete, respondents Facts: Petitioner filed her COC as V-Mayor of Bugasong, Antique for May, 2010 Election. Prior to that, petitioner was elected member of SB in 2001,204 and 2007 elections. Subsequently, Aurelio N. Dela Cruz (Aurelio) also filed his COC as V-Mayor. Petitioner filed a petition to declare Aurelio as nuisance candidate. The COMELEC declared Aurelio as nuisance but his name was not deleted in the Official Sample Ballot. As such, petitioner also filed an Urgent Motion directing the deletion of Aurelios name as Official Candidate. Further, in the event that his name cannot be deleted, an order directing all votes cast in favour of him be credited in her favour in accordance with COMELEC Resolution No. 4116 dated May 07, 2001. The En Banc issued Resolution No. 8844 that votes for disqualified candidates are considered stray votes if voted upon. During the May 2010 Election, Aurelios name was still included. During the canvassing by the MBOC, petitioner insisted that votes cast in favour of Aurelio be credited in her favour. MBOC refused which resulted to winning of respondent Pacete by margin of 39 votes. Votes garnered by Aurelio totalled to 532 votes. Petitioner filed her protest with the RTC praying that votes cast for Aurelio be in her favour ad annulling the proclamation of respondent. Petitioner contended that Resolution No. 8844 violated her constitutional right to equal protection laws as there is no substantial difference between the previous manual and automated elections for non-observance of Resolution No. 4116 particularly on the votes cast for nuisance candidate with the same name to a bonafide candidate.

Here, Aurelio was declared a nuisance candidate long before May 2010 elections. The Court held that Resolution No. 4116 where votes for nuisance candidate declared in a final judgment where he has the same surname with a bonafie candidate be not considered stray but be credited in favour of a legitimate candidate. A petition to cancel is different from a petition to disqualify. Finally, upholding the former rule in Resolution No. 4116 is more consistent with the rule well-ensconced in our jurisprudence that laws and statutes governing election contests especially appreciation of ballots must be liberally construed to the end that the will of the electorate in the choice of public officials may not be defeated by technical infirmities. Indeed, as our electoral experience had demonstrated, such infirmities and delays in the delisting of nuisance candidates from both the Certified List of Candidates and Official Ballots only made possible the very evil sought to be prevented by the exclusion of nuisance candidates during elections. Petition is hereby GIVEN DUE COURSE and the writ prayed for, accordingly GRANTED. COMELEC Resolution No. 8844 dated May 1, 2010 insofar as it orders that the votes cast for candidates listed therein, who were declared nuisance candidates and whose certificates of candidacy have been either cancelled or set aside, be considered stray, is hereby declared NULL and VOID. Consequently, the 532 votes cast for Aurelio N. Dela Cruz during the elections of May 10, 2010 should have been counted in favor of Casimira S. Dela Cruz and not considered stray votes, making her total garnered votes 6,921 as against the 6,428 votes of private respondent John Lloyd M. Pacete who was the declared winner. #12 BARANGAY ASSOCIATION FOR NATIONAL ADVANCEMENT AND TRANSPARENCY (BANAT) PARTY-LIST, represented by SALVADOR B. BRITANICO, Petitioner, vs. COMMISSION ON ELECTIONS, Respondent. G.R. No. 177508 August 7, 2009 Facts: This is a petition for Prohibition with a prayer for the issuance of a temporary restraining order or a writ of preliminary injunction filed by petitioner Barangay Association for National Advancement and Transparency (BANAT) Party List (petitioner) assailing the constitutionality of Republic Act No. 9369 (RA 9369)and enjoining respondent Commission on Elections (COMELEC) from implementing the statute. RA 9369 is a consolidation of Senate Bill No. 2231 and House Bill No. 5352 passed by the Senate on 7 December 2006 and the House of Representatives on 19 December 2006.On 23 January 2007, less than four months before the 14 May 2007 local elections. On 7 May 2007, petitioner, a duly accredited multi-sectoral organization, filed this petition for prohibition alleging that RA 9369 violated Section 26(1), Article VI of the Constitution. Petitioner also assails the constitutionality of Sections 34, 37, 38, and 43 of RA 9369. According to petitioner, these provisions are of questionable application and doubtful validity for failing to comply with the provisions of the Constitution. Petitioner argues the following: 1. the title of RA 9369 is misleading because it speaks of poll automation but contains substantial provisions dealing with the manual canvassing of election returns. Petitioner also alleges that Sections 34, 37, 38, and 43are neither embraced in the title nor germane to the subject matter of RA 9369. 2. Sections 37 and 38 violate the Constitution by impairing the powers of the Presidential Electoral Tribunal (PET) and the Senate Electoral Tribunal (SET). According to petitioner, under the amended provisions, Congress as the National Board of Canvassers for the election of President and Vice President (Congress), and the COMELEC en banc as the National Board of Canvassers (COMELEC en banc), for the election of Senators may now entertain pre-proclamation cases in the election of the President, Vice President, and

Respondent contended that COMELEC maintains a presumption of validity with respect to supervisory or regulatory authority in the conduct of elections. On the constitutionality of Resolution, there must be a clear and unequivocal showing that there was a clear breach on the Constitution. Petitioner merely invokes a violation of the equal protection and due process without basis. COMELEC contended that there is a substantial distinction between manual and automated election as Resolution 4116 will no longer apply. COMELEC asserts that there is no violation of the right to due process for public office is not a property right and no one has vested right to any public office. Issue: Whether COMELEC gravely abused its discretion amounting to lack or excess of jurisdiction in issuing Resolution No. 8844? Held: Yes. Sections 211 (24) and 72 applies to all disqualification cases and not to petitions to cancel or deny due course to COC such as nuisance candidate. A person disqualified is merely prohibited to continue as a candidate and the person whose certificate is cancelled or denied due course is not treated as a candidate at all, as if he never filed a COC. They have different applications.

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Senators. Petitioner concludes that in entertaining pre-proclamation cases, Congress and the COMELEC en banc undermine the independence and encroach upon the jurisdiction of the PET and the SET. 3. Section 43 is unconstitutional because it gives the other prosecuting arms of the government concurrent power with the COMELEC to investigate and prosecute election offenses. 4. section 34 which fixes the per diem of poll watchers of the dominant majority and dominant minority parties at Pon election day. Petitioner argues that this violates the freedom of the parties to contract and their right to fix the terms and conditions of the contract they see as fair, equitable and just. Petitioner adds that this is a purely private contract using private funds which cannot be regulated by law. Issue/s: Whether or not RA 9369 is unconstitutional. -Sections 37 and 38 violate Section 17, Article VI and Paragraph 7, Section 4, Article VII of the Constitution; -Section 43 violates Section 2(6), Article IX-C of the Constitution -Section 34 violates Section 10, Article III of the Constitution Held: The petition is denied. RA 9369 is constitutional. 1. RA 9369 is an amendatory act entitled An Act Amending Republic Act No. 8436, Entitled An Act Authorizing the Commission on Elections to Use an Automated Election System in the May 11, 1998 National or Local Elections and in Subsequent National and Local Electoral Exercises, to Encourage Transparency, Credibility, Fairness and Accuracy of Elections, Amending for the Purpose Batas Pambansa Blg. 881, as Amended, Republic Act No. 7166 and Other Related Election Laws, Providing Funds Therefor and For Other Purposes. Clearly, the subject matter of RA 9369 covers the amendments to RA 8436, Batas Pambansa Blg. 881 (BP 881),Republic Act No. 7166 (RA 7166),and other related election laws to achieve its purpose of promoting transparency, credibility, fairness, and accuracy in the elections. The provisions of RA 9369 assailed by petitioner deal with amendments to specific provisions of RA 7166 and BP 881, specifically: (1) Sections 34, 37 and 38 amend Sections 26, 30 and 15 of RA 7166, respectively; and(2) Section 43 of RA 9369 amends Section 265 of BP 881.Therefore, the assailed provisions are germane to the subject matter of RA 9369 which is to amend RA 7166 and BP 881, among others. 2. The COMELEC maintains that the amendments introduced by Section 37 pertain only to the adoption and application of the procedures on pre-proclamation controversies in case of any discrepancy, incompleteness, erasure or alteration in the certificates of canvass. The COMELEC adds that Section 37 does not provide that Congress and the COMELEC en banc may now entertain pre-proclamation cases for national elective posts. In Pimentel III v. COMELEC, we already discussed the implications of the amendments introduced by Sections 37 and 38 to Sections 15 and 30 of RA 7166, respectively and we declared: Indeed, this Court recognizes that by virtue of the amendments introduced by Republic Act No. 9369 to Sections 15 and 30 of Republic Act No. 7166, pre-proclamation cases involving the authenticity and due execution of certificates of canvass are now allowed in elections for President, Vice-President, and Senators. The intention of Congress to treat a case falling under Section 30 of Republic Act No. 7166, as amended by Republic Act No. 9369, as a pre-proclamation case is apparent in the fourth paragraph of the said provision which adopts and applies to such a case the same procedure provided under Sections 17, 18, 19 and 20 of Republic Act No. 7166 on pre-proclamation controversies. In sum, in [the] elections for President, Vice-President, Senators and Members of the House of Representatives, the general rule is still that pre-proclamation cases on matters relating to the preparation, transmission, receipt, custody and appreciation of election returns or certificates of canvass are still

prohibited. As with other general rules, there are recognized exceptions to the prohibition, namely: (1) correction of manifest errors; (2) questions affecting the composition or proceeding of the board of canvassers; and (3) determination of the authenticity and due execution of certificates of canvass as provided in Section 30 of Republic Act No. 7166, as amended by Republic Act No. 9369. In the present case, Congress and the COMELEC en banc do not encroach upon the jurisdiction of the PET and the SET. There is no conflict of jurisdiction since the powers of Congress and the COMELEC en banc, on one hand, and the PET and the SET, on the other, are exercised on different occasions and for different purposes. The PET is the sole judge of all contests relating to the election, returns and qualifications of the President or Vice President. The SET is the sole judge of all contests relating to the election, returns, and qualifications of members of the Senate. The jurisdiction of the PET and the SET can only be invoked once the winning presidential, vice presidential or senatorial candidates have been proclaimed. On the other hand, under Section 37, Congress and the COMELEC en banc shall determine only the authenticity and due execution of the certificates of canvass. Congress and the COMELEC en banc shall exercise this power before the proclamation of the winning presidential, vice presidential, and senatorial candidates. 3. Section 2(6), Article IX-C of the Constitution vests in the COMELEC the power to "investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices." This was an important innovation introduced by the Constitution because this provision was not in the 1935 or 1973 Constitutions. The phrase "[w]here appropriate" leaves to the legislature the power to determine the kind of election offenses that the COMELEC shall prosecute exclusively or concurrently with other prosecuting arms of the government. The grant of the "exclusive power" to the COMELEC can be found in Section 265 of BP 881. This was also an innovation introduced by BP 881. The history of election laws shows that prior to BP 881, no such "exclusive power" was ever bestowed on the COMELEC. We also note that while Section 265 of BP 881 vests in the COMELEC the "exclusive power" to conduct preliminary investigations and prosecute election offenses, it likewise authorizes the COMELEC to avail itself of the assistance of other prosecuting arms of the government. In the 1993 COMELEC Rules of Procedure, the authority of the COMELEC w\as subsequently qualified and explained. It is clear that the grant of the "exclusive power" to investigate and prosecute election offenses to the COMELEC was not by virtue of the Constitution but by BP 881, a legislative enactment. If the intention of the framers of the Constitution were to give the COMELEC the "exclusive power" to investigate and prosecute election offenses, the framers would have expressly so stated in the Constitution. They did not. 4. The OSG argues that petitioner erroneously invoked the non-impairment clause because this only applies to previously perfected contracts. In this case, there is no perfected contact and, therefore, no obligation will be impaired. Both the COMELEC and the OSG argue that the law is a proper exercise of police power and it will prevail over a contract. According to the COMELEC, poll watching is not just an ordinary contract but is an agreement with the solemn duty to ensure the sanctity of votes. The role of poll watchers is vested with public interest which can be regulated by Congress in the exercise of its police power. The OSG further argues that the assurance that the poll watchers will receive fair and equitable compensation promotes the general welfare. The OSG also states that this was a reasonable regulation considering that the dominant majority and minority parties will secure a copy of the election returns and are given the right to assign poll watchers inside the polling precincts.

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