ELECTION LAW REVIEW

A. BAUTISTA N. DE VEGA 2ND TRIMESTER, SY 2007-2008 A. Election in General Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code (OEC), is the basic law on elections. While legislations have been enacted every time an election is scheduled, the OEC remains the fundamental law on the subject. Other Pertinent Laws on Election: 1. Republic Act No. 9189 or the Overseas Absentee Voting Act of 2003 2. Republic Act No. 8189, otherwise known as the Voters Registration Act of 1996 3. Republic Act No. 7941, otherwise known as the Party List System Act 4. Republic Act No. 9006, otherwise known as the Fair Election Act 5. Republic Act No. 6646, otherwise known as the Electoral Reform Law of 1987 6. Republic Act No. 7166, providing for Synchronized National and Local Elections 7. Republic Act No. 8436, an Act Authorizing the COMELEC to use Automated Election System Elections: 1. It is the embodiment of the popular will, the expression of the sovereign power of the people. 2. It involves the choice or selection of candidates to public office by popular vote. 3. It refers to the conduct of the polls. 4. As used in the Constitution, it includes all election sin the country. 2 types of Election: 1. Regular Election--- refers to an election participated in by those who possess the right of suffrage and not otherwise disqualified by law and who are registered voters. (Note that the election for Sangguniang Kabataan is NOT a regular election because it is participated in by the youth ages 15- 21, some of whom are NOT qualified to vote in national and local elections. 2. Special Election --- One which is held where there is a failure of election on the scheduled date of regular election in a particular place or which is conducted to fill up certain vacancies, as provided by law. How election laws are construed: ---Election laws should be reasonably and liberally construed to effectuate and safeguard the will of the electorate in the choice of their representatives. Election laws may be divided into 3 parts for purposes of applying the rules of construction: 1. Refers to the provisions for the conduct of elections which election officials are required to follow. The rules are mandatory before the election but when it is sought to enforce them after the elections are held, they are directory only. 2. those provisions which candidates for office are required to do and comply with

This is mandatory. This pertains to the qualifications, filing of certificate of candidacy, defining election offenses. Failure to comply with such provisions is fatal because they are mandatory. 3. those procedural rules which are designed to ascertain, in case of dispute, the actual winner in the elections. Provisions designed to determine the will of the electorate are liberally construed. Election period ---it shall commence 90 days before the day of the election and shall end 30 days thereafter. Campaign Period: 1. Presidential and Vice- Pres elections---90 days 2. Senators and Congressmen and local election--- 45 days 3. Barangay election--- 15 days. 4. Special election--- 45 days NOTE: Campaign period shall NOT include the day before and the day of the election. Campaign period is important because certain partisan political activities are prohibited outside the campaign period. The following political activities are permitted outside the campaign period: 1. those performed for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party, aggroupment or coalition of parties. 2. public expressions or opinions of probable issues in the forthcoming elections or on attributes of or criticisms in a forthcoming political party convention. Grounds of Postponement of election (V-O-T-R- F): 1. violence 2. other analogous causes of such nature that the holding of a free, orderly and honest election should become impossible 3. terrorism 4. loss or destruction of election paraphernalia or records 5. force majeure Based on such grounds, COMELEC may motu proprio or upon petition, after due notice and hearing declare or postpone the election to a date reasonably close but not later than 30 days after the cessation of the cause of the postponement (this period is only directory). Grounds for failure of election (O-F-F T-V): 1. Other analogous cases 2. force majeure 3. fraud 4. terrorism 5. violence These grounds must cause the election to be not held on the date fixed or after voting and during the preparation, transmission of the ER or after the voting and during the preparation and the transmission of the ER or in the custody or canvass thereof, such election results in failure to elect and such failure would affect the result of the election.

COMELEC shall on the basis of the verified petition, after due notice and hearing call for the continuation of the election not held, suspended or which resulted in a failure to elect on a reasonably close date in which case NOT later than 30 days after the cessation of the cause of such failure. NOTE: The postponement or failure of election and calling of special election shall be decided by only COMELEC en banc. Pre-condition for declaring failure of election: 1. that no voting has been held in any precinct because of force majeure, violence or terrorism and 2. that the votes not cast therein are sufficient to affect the results of the election. NOTE: The two must concur to justify a special election. The grounds may occur before or after the casting of votes or on the day of the election. Particulars: 1. There is failure of election when NO actual voting took place, or even if there is, there is failure to elect, as when the ballot box is snatched, burned or lost. The fact that there is very low turnout of voters in certain precincts does NOT justify a declaration of failure of election. All that the law requires is that a winning candidate must be elected by a plurality of valid votes, regardless of the actual number of ballots cast or the number of registered voters in the precinct concerned. 2. Destruction and loss of copies of ER intended for BOC on account of violence is NOT failure of election. 3. There is failure of election only when the will of the electorate has been muted and cannot be ascertained. If the will of the people is determinable, the election must be respected. 4. General rule is that terrorism may NOT justify declaration of failure of election through the misdeeds of only a few. However, where terrorism is so prevalent as to warrant a declaration that no voting actually took place, then there is failure of election. 5. Mere fact hat the transfer of polling place was NOT made in accordance with law does NOT justify failure of election UNLESS the number of uncast votes will affect the results of the election 6. Unlike PPC where COMELEC cannot go beyond the face of the ER, in an action for annulment of ER or for declaration of failure of election, COMELEC is duty bound to investigate the allegations and may even conduct technical examination. Requisites for holding special election: 1. there is a failure of election and 2. that such failure would affect the results of the election Jurisprudence1

1. To annul an election, two conditions must be present:

[a] the illegality must affect more than 50% of the votes cast, and [b} the good votes can be distinguished from the bad votes.

Lifted from Atty. Alberto Agras Election law handouts.

2. If there is failure of elections, no winner can be declared2. If the alleged fraud and
irregularities did not prevent or suspend the holding of the elections, there is no failure of elections3. There is also no failure when 220 out of the 316 registered voters in the questioned precincts were able to vote. There can be failure of election in a political unit only if the will of the majority has been defiled and cannot be ascertained.4 Simply deducting the election results of certain municipalities subject of a petition for failure of elections does not necessarily establish the theory that the over-all election will not change. The possibility that the results of the special elections may still change the standing of the candidates cannot be discounted5.

3. To warrant a declaration of failure of elections, the commission of fraud must be such

that it prevented or suspended the holding of an election, or the preparation and transmission, custody and canvass of the election returns. These essential facts must be established6. In such case, the winner cannot be determined or that nobody emerged as winner. The proper remedy in assailing that election returns were manufactured as they were allegedly prepared by one person is to seek a recount which is a proper subject of an election protest.7

4. There is failure of elections when the venue for counting was transferred without
notice to or conformity of the candidates and watchers and where canvassing was done without their presence. While casting took place, the irregularities that marred the counting and canvassing must result in failure to elect8.

5. There is no failure of elections when after the firing of guns, voting resumed9. There
is also no failure on the grounds that there were ballot box snatching, ballots were filled up with the name of respondent, ballots were not signed at the back by members of the board of election inspectors10, and massive substitution of voters11.

6. Manual Counting of votes when automated machines failed to read the ballots is not
a ground for failure since voters were able to cast their votes freely and votes were counted correctly.12

7. The fact that a candidate for provincial office has been proclaimed and has assumed
office does not deprive the Comelec of its authority to annul any canvass and illegal proclamation13.

8. Only the Comelec en banc has the authority to declare a failure of elections14.
2 3

Carlos v. Angeles, G.R. No. 142907, November 29, 2000 Tan v. COMELEC, G.R. No.148575, December 10,2003 4 Batabor v. COMELEC, 434 SCRA 630 [2004] 5 Alauya v. COMELEC, 395 SCRA 742 6 Banaga v. COMELEC, G.R. No. 134696, July 31, 2000; Sison v. COMELEC, 304 SCRA 170 7 Typoco v. COMELEC, G.R. No. 136191, November 29,1999 8 Soliva v. COMELEC, G.R. No. 141723, April 20,.2001 9 Benito v. COMELEC, 349 SCRA 705 10 Pasandalan v. COMELEC, G.R. No. 150312, July 18,2002 11 Macabago v. COMELEC, G.R. No. 152163, November 18,2002 12 Loong v. COMELEC, 305 SCRA 832 13 Ampatuan v. COMELEC, G.R. No. 149803, January 31,2002 14 Section 4, Republic Act No. 7166

9. The Comelec can set a date after the 30-day period from the cessation of the cause of
the failure of election when the dates for the special election were the nearest dates available from the time the failure was determined15. A special election may also be ordered by the Comelec when the transfer of the polling place was made in blatant disregard of Comelec Resolution No. 4360 specifying the polling places and also Sections 153 and 154 of the Omnibus Election Code. Changes may be initiated by written petition of the majority of the voters of the polling place or agreement of all the political parties or by resolution of the Comelec after notice and hearing16.

10. An action for declaration of failure of elections is different from a pre-proclamation

controversy. The former case involves an examination of election fraud, technical examination of election documents, and comparison of signatures which is not the case in pre-proclamation cases.17 B. Registration & Qualification of Voters Qualifications for Suffrage: Filipino citizen not disqualified by law at least 18 years of age (except in Sangguniang Kabataan elections) has resided in the Philippines for at least 1 year preceding the election has resided in the place wherein they propose to vote for at least 6 months preceding the election * Residence here pertains to domicile A person may be absent from his domicile for a long period of time but so long as he has the intent to return to his domicile and no intent to settle in the place where he is physically present, he is still considered a resident of his original domicile. Republic Act No. 9189 or the Overseas Absentee Voting Act of 2003 All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for president, vice-president, senators and party-list representatives. The following are disqualified from voting under RA 9189: 1. Those who have lost their Filipino citizenship in accordance with Philippine laws; 2. Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country; 3. Those who have committed and are convicted in a final judgment by a court l 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 disability not having been removed by plenary pardon or amnesty; Provided, however, That any person disqualified to vote under this subsection
15 16

Pangandaman v. COMELEC, G.R. No. 134340, November 25,1999 Cawasa v. COMELEC, G.R. No. 150469, July 3,2002 17 Alauya v. COMELEC, G.R. No. 152151-52, January 22,2003

shall automatically acquire the right to vote upon expiration of five (5) years after service of sentence; Provided, further, That the COMELEC 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; 4. 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. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be the cause 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. 5. 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. Republic Act No. 8189, otherwise known as the Voters Registration Act of 1996 Provides for a system of a permanent list of voters as well as continuing registration of voters There shall be a continuing registration of voters. However such registration cannot be conducted during the period starting 120 days before a regular election and 90 days before a special election In Akbayan Youth vs. COMELEC, GR No. 147066 26 March 2001, the Supreme Court upheld the action of the COMELEC in denying petitioners request for 2 additional registration days in order to enfranchise around 4 million youth who failed to register on or before 27 December 2000. Who are disqualified from registering: 1) person sentenced by final judgment to suffer imprisonment of not less than 1 year. BUT any person disqualified under this rule shall automatically reacquire the right to vote upon expiration of 5 years after service of sentence. 2) Person adjudged by final judgment of having committed a crime involving disloyalty to government such as rebellion, sedition, violation of firearms law or crime against national security. BUT any person disqualified under this rule shall automatically reacquire the right to vote upon expiration of 5 years after service of sentence. 3) Insane or incompetent persons declared as such by competent authority UNLESS subsequently declared by proper authority no longer insane. Common rules governing judicial proceedings of inclusion, exclusion and correction of names of voters: 1) Notice of place, date and time of hearing of petition shall be served upon members of the Board and challenged voter upon petition. May be personally or registered mail. If NOT practicable, the notice shall be posted din 2 conspicuous places. 2) Petition shall refer only to 1 precinct and implead Board as respondents.

3) No costs shall be assessed unless the application was made only to harass. 4) Any voter, candidate or political party affected may intervene. 5) Decision shall be based on evidence and in NO case rendered upon stipulation of facts. If question is about the voter being fictitious, his non-appearance for that day shall be prima facie evidence that such voter is fictitious. 6) Petition shall be heard and decided within 10 days from the date of its filing. Cases appealed to Regional Trial Court shall be decided within 10 days from receipt of appeal. In all cases, court shall decide these petitions NOT later than 15 days before the election. Such decision becomes final and executory. Jurisdiction in Inclusion and Exclusion Cases; Municipal Trial Court shall have original and exclusive jurisdiction over all cases of inclusion and exclusion of voters in their respective territorial jurisdiction. Decisions of Municipal Trial Court may be appealed by aggrieved party to Regional Trial Court within 5 days from receipt of notice thereof. Otherwise, such will become final and executory. Regional Trial Court shall decide the appeal within 10 days from time it is received. NO Motion for Reconsideration. Petition for Inclusion of Voters in the List: Any person whose application for registration has been disapproved by Board or whose name was stricken out from the list may file with Municipal Trial Court a petition to include his name in the permanent list of voters EXCEPT 105 days prior to a regular election or 75 days prior to special election. It shall be supported by a certificate of disapproval of his application and proof of service of notice of his petition upon the Board. Petition shall be decided within 15 days after its filing. Petition for Exclusion of Voters from List: Any registered voter, rep of political party or Election Officer, may file with Municipal Trial Court a sworn petition for the exclusion of voter from the permanent list of voters giving the name, address and precinct of the challenge voter at anytime EXCEPT 100 days prior to a regular election or 65 days before a special election. Petition shall be accompanied by proof of service of notice to Board and to the challenged voter. It shall be decide within 10 days from its filing. C. Political Parties Political Party An organized group of persons pursuing the same ideology, political ideas or platforms of government including its branches and subdivisions. The following cannot be registered as political parties: 1. 2. means Religious sects those which seek to achieve their goals through violence or unlawful those which refuse to uphold the Constitution those supported by foreign governments

3.
4.

Forfeiture of a Status of a Registered Political Party

After notice and hearing, the status shall be deemed forfeited if the political party, singly or in coalition with others, fails to obtain at least 10% of the votes cast in the constituency in which it nominated and supported a candidate in the election next following its registration.

Republic Act No. 7941, otherwise known as the Party List System Act The party-list system is a mechanism of proportional representation in the election of representatives to the House of Representatives from national, regional and sectoral parties or organizations or coalitions thereof registered with the COMELEC. Any party already registered need not register anew but instead must file a manifestation not later than 90 days before the election Party-lists receiving at least 2% of the total votes cast for the party-list system shall be entitled to 1 seat each. No party shall be entitled to more than 3 seats The number of party-list seal is determined using this formula: number of district representatives/0.80x0.20. No rounding off allowed Jurisprudence Political Parties may be considered as party-lists if they represent the marginalized and underrepresented sectors, parties and organizations. (Ang Bagong Bayani-OFW Labor Party vs. COMELEC G.R. No. 147589 26 June 2001) Veterans Federation Party et.al v. Commission on Elections, G.R.No. 136781, October 6, 2000 Aklat Asosasyon Para sa Kaunlaran ng Lipunan at Adhikain para sa Tao v. COMELEC, 427 SCRA 712 Citizens Battle Against Corruption v. COMELEC, GR No. 172103, April 13, 2007 Formula in Computing Number of Seats for Party-Lists Votes Cast for Qualifed Party Additional Seats = ------------------------------------Votes Cast for First Party

No. of X Seats Allocated First Party to Additional

The correct formula used in determining the number of additional congressional seats a winning party-list is entitled to should be strictly implemented, consistent with the Supreme Courts decision in the 6 Oct 2000 case of Veterans Federation Party, et al. v. COMELEC, G.R. No. 136781. The Supreme Court rejected the COMELECs application of a simplified formula of one additional seat per additional two percent [of the total party-list votes obtained] that it adopted in COMELEC Resolution No. 06-0248, which denied the motion filed by the Citizens Battle Against Corruption (CIBAC) for the proclamation of its second nominee in the 2004 party-list elections. However, the Court still denied CIBACs petition for a second congressional seat for

failure of the party-list to garner an adequate number of votes even under the correct Veterans formula. Grounds for refusing or canceling registration of Party-List Groups: 1. It is a religious sect or denomination, organization or association, organized for religious purposes; 2. It advocates violence or unlawful means to seek its goal; 3. It is a foreign party or organization; 4. It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes; 5. It violates or fails to comply with laws, rules or regulations relating to elections; 6. It declares untruthful statements in its petition; 7. It has ceased to exist for at least one (1) year; or 8. It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered. Qualifications of a Party-List Nominee: 1. natural-born citizen of the Philippines 2. a registered voter 3. a resident of the Philippines for a period of not less than one (1) year immediately preceding the day of the election 4. able to read and write 5. a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election 6. is at least twenty-five (25) years of age on the day of the election. In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue in office until the expiration of his term. Nomination of party-list reps should 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.

Incumbent sectoral representatives in the House of Representatives who are nominated in the party-list system shall not be considered resigned. Party- list reps constitute 20% of the total number of the members of the House of Representatives, including those under the party list. D. Eligibility of Candidates Qualification Qualifications prescribed by law are continuing requirements and must be possessed for the duration of the officers active tenure. Once any of the required qualifications is lost, his title to the office may be seasonably challenged. (Frivaldo vs. COMELEC, 174 SCRA 245; Labo vs. COMELEC, 176 SCRA 1) Power of Congress to prescribe qualifications and disqualifications: Congress has the power to prescribe additional qualifications and disqualifications. Since the privilege of holding office is a valuable one, it should be liberally construed in favor of eligibility Provisions of the Constitution or law prescribing qualifications and disqualifications are mandatory so that if a candidate who does NOT possess the required qualifications or is disqualified is ineligible, his election to office shall be null and void. Qualifications for president and VP 1. natural born citizen of the Philippines 2. registered voter 3. able to read and write 4. at least 40 years of age on the day of election 5. resident of the Philippines for at least 10 years immediately preceding the election. Qualifications for Senator: 1. natural born citizen of the Philippines 2. at least 35 years old on the day of the election 3. able to read and write 4. registered voter 5. resident of the Philippines for not less than 2 years immediately preceding the day of the election Qualifications for District Representative: 1. natural born citizen of the Philippines 2. on the day of election at least 25 years old 3. able to read and write 4. registered voter in the constituency in which he shall be elected 5. resident thereof for a period of not less than 1 year immediately preceding the day of the election Qualification for Sectoral representative: 1. natural born citizen of the Philippines

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2. able to read and write 3. resident of the Philippines for a period not less than 1 year immediately preceding the ay of the election 4. bona fide member of the sector he seeks to represent 5. on the day of the election is at least 25 years old BUT in case of youth sectoral representative, at least 25 years and not more than 30 years old at the day of the election Qualifications for Local Officials: 1. citizen of the Philippines 2. on the day of election at least 23 years old for Governor, Vice-Governor, member of sangguniang panlalawigan, mayor, vice-mayor, sangguniang panglungsod in highly urbanized cities while at least 21 years old for the said officials in component cities and municipalities; at least 18 years old for members of the sangguniang panglungsod, sangguniang bayan and sangguniang barangay; at least 15 years old and not more than 21 years of age for Sangguniang kabataan 3. able to read and write 4. registered voter in the constituency in the locality 5. resident thereof for a period of not less than 1 year immediately preceding the day of the election Citizenship It must be possessed 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 Residence: means domicile or the individuals permanent home. It includes the twin elements of a) physical presence in a fixed place and b) animus manendi or the intention of returning there permanently DISQUALIFICATIONS Disqualifications under the Omnibus Election Code: 1. Declared as incompetent or insane by competent authority 2. Sentenced by final judgment for subversion, insurrection, rebellion or any offense for which he has been sentenced to a penalty of more than 18 months imprisonment 3. Sentenced by final judgment for a crime involving moral turpitude Villaber vs. COMELEC, GR No. 148326 15 November 2001 (violation of BP 22 is considered as moral turpitude) 4. A permanent resident of or an immigrant to a foreign country, unless he has waived his status as such. Caasi vs. COMELEC, 191 SCRA 229 *The disqualification is lifted after the expiration of 5 years from service of sentence Disqualification as a result of election offenses under Section 68 of the Omnibus Election Code: 1. One who has given money or materials to influence or corrupt voters or public officials performing electoral functions 2. One who has committed acts of terrorism to enhance his candidacy 3. One who has spent in his election campaign an amount in excess of that allowed by law.

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4. One who has solicited, received or made prohibited contributions 5. One who has committed prohibited acts under Sec. 80 (campaign period), Sec 83 (removal, destruction of lawful election paraphernalia, Sec 85 (prohibited forms of propaganda), Sec 86 (regulation of propaganda through mass media) and Dec 261 (election offenses). Pangkat-Laguna vs. COMELEC, GR No. 148075 04 February 2002 (The acts of Laguna Governor Lazaro in ordering the purchase of trophies, basketballs, etc. and the distribution of medals to schools, are not violative of Section 80 as to premature campaigning considering that the Governor was not soliciting votes but in fact was performing her duties imposed by law.) Other disqualifications under the OEC: 1. Nuisance candidate 2. Violation of Section 73 with regard to the certificate of candidacy 3. Violation of Sec. 78 as to material misrepresentations in the certificate of candidacy Nuisance Candidate: A nuisance candidate is one who files a certificate of candidacy: 1. to put the election process in mockery or disrepute 2. to cause confusion among the voters by the similarity of the names 3. in other circumstances which clearly demonstrate that the candidate has NO bona fide intention to run for the office and to prevent a faithful determination of the true will of the electorate. Petition to disqualify a candidate for being a nuisance candidate must be filed within 5 days from last day of filing of certificate of candidacy Disqualifications under the Local Government Code (applicable to local officials only): 1. those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by 1 year or more imprisonment within 2 years after serving sentence Dela Torre vs. COMELEC, GR No. 121592 05 July 1996 (probation simply suspends the execution of sentence but it does not erase the disqualification brought about by the conviction of a crime involving moral turpitude) 2. those removed from office as a result of an administrative case Grego vs. COMELEC, GR No. 125955 19 June 1997 (local officials removed from office as a result of an administrative case prior to the effectivity of the LGC on 01 January 1992, are not disqualified.) 3. those convicted by final judgment for violating oath of allegiance to the Republic 4. those with dual citizenship Mercado vs. Manzano, 307 SCRA 630 (dual citizenship here pertains to dual allegiance. Persons with mere dual citizens are not disqualified.) 5. fugitives from justice in criminal or nonpolitical cases here and abroad Marquez vs COMELEC, 243 SCRA 538 (A fugitive from justice includes not only those who flee after conviction to avoid punishment but also those who, after being charged, flee to avoid prosecution) Rodriguez vs. COMELEC, GR No. 120099 24 July 1996 (One is not a fugitive from justice when his arrival in the Philippines preceded the filing of felony complaints and issuance of arrest warrants by a foreign court) 6. 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

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7.

the insane or feeble-minded

Rules on admin charges: 1. a local official who was dismissed after he was found administratively guilty in a decision that became final PRIOR to the election is NOT qualified to run for reelection. His reelection does NOT remove his ineligibility NOR render the admin charge against him moot and academic 2. It would have been a different situation if at the time of his reelection, the administrative case is still pending, in which case, the reelection or election will operate as a condonation of the officials previous misconduct. 3. If a public official is NOT removed before his term, he can no longer be removed if he is thereafter reelected for another term. Policy on 3-Term Ban for Local Officials18 The 3-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. Consequently, it is not enough that an individual has served three consecutive terms in an elective local office; he/she must also have been elected to the same position for the same number of times before the disqualification can apply19. Thus, the three conditions which must concur for the application of the disqualifications are: [1] that the official concerned has been elected for three consecutive terms in the same local government post; [2] that he/she fully served three consecutive terms 20; [3] that he/she was elected in a regular election.21 Applying said policy, the following situations (tenures in office) are not considered service of term for purposes of applying the 3-term limit:

1. 2. 3. 4. 5.

Officer fills up a higher office (by succession/operation of law)22; Officer suspended from office (failed to serve full term)23; Officer unseated, ordered to vacate by reason of an election protest case24; Officer serving unexpired term after winning in the recall elections25; and Officer assuming a local government post (even is served for three consecutive terms) after winning in a recall election (since not considered an immediate reelection)26.

However, a 3-term municipal mayor cannot seek office as a city mayor in the 1st elections of city officials after the municipality has been converted to a city considering that the area and inhabitants of the locality are the same and that the municipal mayor continued to hold office until such time as city elections are held. While the city acquired a new corporate existence separate and distinct from that of the municipality, this does not mean that for the purpose of

18 19

Lifted from Atty. Alberto Agras Election Law handouts. Borja v. COMELEC, G.R. No.133495. September 3,1998 20 Lonzanida v. Commission on Electing, G.R. No. 135150, July 28, 1999 21 Socrates v. COMELEC, G.R. No. 154512, November 12,2002 22 Borja v. COMELEC, G.R. No. 133495, September 3, 1998 23 Borja v. COMELEC, G.R. No. 133495, September 3, 1998 24 Lonzanida v. Commission on Electing, G.R. No. 135150, July 28, 1999
25 26

Adormeo v. COMELEC, G.R. No. 147927, February 4,2002 Socrates v. COMELEC, G.R. No. 154512, November 12,2002

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applying the constitutional provision on term limitations, the office of the municipal mayor would be construed as different from hat of the office of the city mayor27. The term of all local officials including barangay officials (and sangguniang kabataan officials) 28 is three years. Section 5 of Republic Act No. 9164 which authorizes the hold-over of incumbent barangay officials until their successors are elected is valid.29 E. Certificate of Candidacy Must be filed on any day from the commencement of the lection period but not later than the day before the beginning of the campaign period A person who runs for elective office but did NOT file a certificate of candidacy is NOT a candidate at all. CEC must be under oath. However, the election of a candidate cannot be annulled on the formal defect of lack of oath (De Guzman vs. Board of Canvassers, 48 Phil 211) Where a candidate files his sworn CEC for mayor on a date and thereafter he asked for his CEC and intercalated the word vice: before the word mayor, but later declared in a sworn letter that he is running for mayor, such candidate can validly run for mayor because the intercalation was not made under oath.. Officials holding appointive offices, including members of the AFP and officers of GOCCs shall be considered ipso facto resigned upon their filing of CEC. While officials holding elective positions shall continue to hold office whether he is running for the same or different position.

Rules on Substitution and Withdrawal of Candidacy (Go vs. COMELEC, GR No. 147701 10 May 2001) A candidate may withdraw his candidacy anytime before election day Substitution is only allowed in cases of : death, withdrawal or disqualification No substitution is allowed for an independent candidate No person who has withdrawn his candidacy for a position shall be eligible as a substituted candidate for any position The filing of a withdrawal shall not affect the civil, criminal or administrative liabilities the substituted candidate may have already incurred In case of valid substitutions, votes cast for substituted candidates are considered stray, except if the substitute candidate has the same surname Nuisance Candidate A nuisance candidate is one who files a certificate of candidacy: 1. to put the election process in mockery or disrepute 2. to cause confusion among the voters by the similarity of the names 3. in other circumstances which clearly demonstrate that the candidate has NO bona fide intention to run for the office and to prevent a faithful determination of the true will of the electorate. Procedure:
27 28

Latasa v. COMELEC, G.R. No. 154829, December 12,2003 Section 8, ArticleX, 1987 Constitution; Section 43, Republic Act No. 7160; Republic Act No. 9164, March 19, 2002 29 Sambarani v. COMELEC, 438 SCRA 319 [2004]

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1. It may be filed motu prorio or upon a verified petition 2. verified petition shall be filed personally or through a duly authorized representative with COMELEC by any registered candidate for the same office within 5 days from the last day for the filing of certificate of candidacy. 3. within 3 days from filing the petition, COMELEC shall issue summons to respondent nuisance candidate (NC) 4. NC shall be given 3 days from receipt of summons within which to file his verified answer (not Motion to Dismiss), serving a copy thereof to the petitioner. Grounds for Motion to Dismiss may be raised as affirmative defenses. 5. COMELEC may designate its lawyer to hear and receive evidence. Summary proceeding. In lieu of oral testimonies, parties shall submit affidavits and counteraffidavits. Hearing officer shall submit findings to COMELEC within 5 days from completion of submission of evidence. 6. COMELEC shall render its decision within 5 days from receipt thereof. 7. Decision of COMELEC shall become final and executory after 5 days from receipt of a copy thereof by parties unless stayed by Supreme Court. 8. COMELEC shall within 24 hours disseminate its decision to the election registrars, BEI and public. Petition to Deny Due Course to or cancel a certificate of candidacy Exclusive ground is material representation in the certificate of Candidacy is false The petition should be filed not later than 25 days from the filing of the CEC It should be decided not later than 15 days before the election after due notice and hearing Jurisdiction lies with the COMELEC in division Effects of disqualification If candidate is disqualified before election, he shall not be voted for and any votes cast in his favor shall NOT be counted. BUT, if a candidate has NOT been declared disqualified by final judgment BEFORE the election and he is voted for and won, the court or COMELEC shall continue with the trial and hearing and upon motion of complainant may, during the pendency thereof order the suspension of proclamation. If candidate was disqualified BEFORE the election but was voted for and won, the votes cast in his favor are stray votes, hence the 2nd placer shall be proclaimed. If candidate was disqualified after the election, the 2nd placer will NOT be proclaimed. Instead, the law on succession to office shall apply. A disqualified candidate is NO candidate at all. Since a disqualified candidate is NO candidate at all, his having received the highest number of votes does NOT validate his election. where a petition for disqualification was filed before election but was adversely resolved against said candidate after the election, his having obtained the highest number of votes did NOT make his election valid. A petition for disqualification filed AFTER election does NOT have the same effect as the one filed before the election. It is a petition for QW F. Election Propaganda and Campaign

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Election campaign or partisan political activity refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office. a candidate can only campaign during the 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. It includes: (1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate; (2) Holding 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; (3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office; (4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or (5) Directly or indirectly soliciting votes, pledges or support for or against a candidate. * Acts performed for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party are NOT considered as election campaign. Nomination and selection of official candidates: No political convention or meeting for the nomination or selection of the official candidates of any political party or organization or political groups or coalition thereof shall be held earlier than the following periods: (a) For President, Vice-President and Senators, one hundred sixty-five (165) days before the day of the election; and (b) For Members of the House of Representatives and elective provincial, city or municipal officials, seventy-five (75) days before the day of the election. Foreigners CANNOT: 1. aid candidates 2. influence election 3. contribute Republic Act No. 9006, otherwise known as the Fair Election Act Repealed Sec. 67 of the OEC. Now, elective officers are not considered resigned upon filing of the CEC Lifted the political ad ban Paid political advertisements at discounted rates allowed for national and local candidates in television (120 minutes for nationally elective office/ or 60 for local0, print (1/4th page in broadsheet and page in tabloid 3x a week) and radio (180 minutes for nationally elective office/ 90 for local); The Comelec shall procure free space and airtime to be equally and impartially allocated to candidates; Use of gadgets and billboards allowed considering the repeal of Section 65 of the Omnibus Election Code prohibiting the use of use of billboards and audio-visual

16

units, tin-plate posters, balloons, pens, lighters, fans, hats, wallets, t-shirts, cigarettes, etc. Political parties and partly-list groups can erect common poster areas for their candidates in not more than ten (10) public places such as plazas, markets, barangay centers. Candidates may post any lawful propaganda material in private places with the consent of the owner thereof; Election surveys may be conducted and published; Social Weather Station v. Commission on Elections, G.R. No. 147571, May 5,2001 (The provision in the Act of which bars publication of election survey results within a certain period before election has been declared unconstitutional for violation of the freedom of speech), and Exit polls may be taken

While the Fair Election Act liberalized certain rules on campaign, the law in order to ensure equitable access to media also established and clarified some rules on election propaganda. These are: All registered parties and bona fide candidates shall have the right to reply to charges published against them; No movie, cinematograph or documentary portraying the life or biography of a candidate shall be publicly exhibited in a theater, television station or any public forum during the campaign period30 and no movie, cinematography portrayed by an actor or media personality who is himself/herself a candidate shall be publicly exhibited in a theater, television station or any public forum during the campaign period; All mass media entities shall furnish the Comelec with copies of all contracts for advertising, promoting or opposing any political party or the candidacy of any person for public office within five (5) days after its signing; and Any media personality who is a candidate for any elective public 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 period31. With regards electoral contributions, these are exempt from payment of gift tax under Republic Act No. 7166 provided the same are reported to the Comelec. Abello v. Commissioner of Internal Revenue, G.R No. 120721, February 23, 2005 (However, contributions made prior to the effectivity of such law are not exempt). Lawful Election Propaganda Written and Printed Materials (81/2 W x 14L0 Letters Posters (2 x 3) Rally Streamers (3 x 8) Paid Advertisements and Discounted rates Print: 1/4th page in broadsheet and page in tabloid 3x a week Television: 120 minutes for candidate for nationally elective office and 60 for local Radio: 180 minutes for candidate for nationally elective office and 90 for local
30 31

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Comelec free space (3 national newspapers for nationally elective officials and 1 national newspaper for local) and airtime (3 national television networks for nationally elective officials and 1 station for local0: equal allocation for all candidates for 3 calendar days Billboard, Tinplate-Poster, Balloons (no longer prohibited by law but not expressly allowed by Comelec) Propaganda Gadgets such as pens, lighters, fans, shirts, cigarettes, etc. (no longer prohibited by law but not expressly allowed by Comelec) Mobile units, vehicle motorcades Rules on Prohibited Election Propaganda: The prohibition of certain forms of election propaganda is a valid exercise of police power (Badoy vs. COMELEC, 35 SCRA 285) The evil sought to be avoided in regulating election propaganda does not hold true in cases of plebiscite because the electorate is asked to vote on issues NOT candidates (Sanidad vs. COMELEC, 181 SCRA 529) Propaganda materials including advertisements on print, radio or television showing the image or mentioning the name of a person who subsequent to such ad becomes a candidate can be removed as this is considered as premature campaigning (Chavez vs. COMELEC, GR No. 162777 31 August 2004) The aggregate amount that a candidate or registered political party may spend for election campaign shall be as follows: (a) For candidates. - Ten pesos (P10.00) for President and Vice-President; and for other candidates Three Pesos (P3.00) for every voter currently registered in the constituency where he filed his certificate of candidacy: Provided, That a candidate without any political party and without support from any political party may be allowed to spend Five Pesos (P5.00) for every such voter; and (b) For political parties. - Five pesos (P5.00) for every voter currently registered in the constituency or constituencies where it has official candidates. 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 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 contracts or sub-contracts 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 one year prior to the date of the election, have been granted loans or other accommodations in excess of P100,000 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 amounting to no less than P100,000.00;

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(g) Officials or employees in the Civil Service, or members of the Armed Forces of the Philippines; and (h) Foreigners and foreign corporations. Prohibited raising of funds: 1. holding dances, lotteries, cockfights, etc for the purpose of raising funds for an election campaign or for the support of any candidate from the commencement of the election period up to and including election day; 2. soliciting and/or accepting from any candidate for public office, or from his campaign manager, agent or representative, or any person acting in their behalf, any gift, food, transportation, contribution or donation in cash or in kind from the commencement of the election period up to and including election day; Provided, That normal and customary religious stipends, tithes, or collections on Sundays and/or other designated collection days, are excluded from this prohibition. Prohibited donations by candidates, treasurers of parties or their agents. No candidate, his or her spouse or any relative within the second civil degree of consanguinity or affinity, or his campaign manager, agent or representative shall during the campaign period, on the day before and on the day of the election, directly or indirectly, make any donation, contribution or gift in cash or in kind, or undertake or contribute to the construction or repair of roads, bridges, school buses, puericulture centers, medical clinics and hospitals, churches or chapels cement pavements, or any structure for public use or for the use of any religious or civic organization: Provided, That normal and customary religious dues or contributions, such as religious stipends, tithes or collections on Sundays or other designated collection days, as well as periodic payments for legitimate scholarships established and school contributions habitually made before the prohibited period, are excluded from the prohibition. The same prohibition applies to treasurers, agents or representatives of any political party. Lawful expenditures.: (a) travelling expenses of the candidates and campaign personnel in the course of the campaign and for personal expenses incident thereto; (b) compensation of campaigners, clerks, stenographers, messengers, and other persons actually employed in the campaign; (c) telegraph and telephone tolls, postage, freight and express delivery charges; (d) stationery, printing and distribution of printed matters relative to candidacy; (e) employment of watchers at the polls; (f) rent, maintenance and furnishing of campaign headquarters, office or place of meetings; (g) political meetings and rallies and the use of sound systems, lights and decorations during said meetings and rallies; (h) newspaper, radio, television and other public advertisements; (i) employment of counsel, the cost of which shall not be taken into account in determining the amount of expenses which a candidate or political party may have incurred under Section 100 and 101 hereof; (j) copying and classifying list of voters, investigating and challenging the right to vote of persons registered in the lists the costs of which shall not be taken into account in determining the amount of expenses which a candidate or political party may have incurred under Sections 100 and 101 hereof; or

19

(k) printing sample ballots in such color, size and maximum number as may be authorized by the Commission and the cost of such printing shall not be taken into account in determining the amount of expenses which a candidate or political party may have incurred under Sections 100 and 101 hereof. Statement of Contribution and expenses Every candidate and treasurer of the political party shall, within thirty (30) days after the day of the election, file in duplicate with the offices of the Commission the full, true and itemized statement of all contributions and expenditures in connection with the election. No person elected to any public offices shall enter upon the duties of his office until he has filed the statement of contributions and expenditures herein required. The same prohibition shall apply if the political party which nominated the winning candidate fails to file the statement required herein within the period prescribed by this Act. Except candidates for elective barangay office, failure to file the statements or reports in connection with electoral contributions and expenditures are required herein shall constitute an administrative offense for which the offenders shall be liable to pay an administrative fine ranging from One thousand pesos (P1,000.00) to Thirty thousand pesos (P30,000.00), in the discretion of the Commission. Every candidate is required to file his statement of contributions and expenditures within the prescribed period. It includes one who withdrew his certificate of candidacy. (Pilar vs. COMELEC, 245 SCRA 759) G. Board of Election Inspectors (BEI) Composition of BEI 1) A chairman 2) 2 members (one of whom will be a poll clerk) --all of whom shall be public school teachers Qualifications: 1) good moral character 2) irreproachable reputation 3) registered voter in the city or municipality 4) never been convicted of an election offense or crime punishable by more than 6 months imprisonment OR if he has pending against him an information for any election offense. 5) Must be able to speak and write English or local dialect. Disqualification of BEI: No person shall serve as chairman or member of the board of election inspectors if he is related within the fourth civil degree of consanguinity or affinity to any member of the board of election inspectors or to any candidate to be voted for in the polling place or his spouse. Powers of BEI a. Conduct the voting and counting of votes in their respective polling places;

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b. Act as deputies of the Commission in the supervision and control of the election in the polling places wherein they are assigned, to assure the holding of the same in a free, orderly and honest manner; and c. Perform such other functions prescribed by this Code or by the rules and regulations promulgated by the Commission. Qualifications of Watchers 1. qualified voter of the city or municipality 2. of good reputation 3. shall not have been convicted by final judgment of any election offense or of any other crime 4. must know how to read and write Pilipino, English, or any of the prevailing local dialects, 5. and not related within the fourth civil degree of consanguinity or affinity to the chairman or any member of the board of election inspectors in the polling place where he seeks appointment as a watcher. Rights and Duties of Watchers: 1. Stay in the place reserved for them inside the polling place 2. Witness and inform themselves of the proceedings of the BEI 3. take notes and photographs of the proceedings 4. file protests against any irregularity or violation of the law 5. be furnished with a certificate of the number of votes cast for each candidate duly signed and thumbmarked by the members of the BEI. H. Casting and Counting of Votes Types of Ballots 32 Type Official Ballots Brief Description Form prescribed by the Comelec, ballots prepared by government printing offices, with security markings, serial numbers, printed on special paper; For manual, ballot contains elective offices and across them, sufficient space to be filled by voters; For automated, ovals across names or numbers Similar in from to Official Ballots (no security markings and not in special paper; printed in colored paper), prepared by the Commission; Purpose/ What to do with them To be used by voters in elections Voters place the names of candidates across the elective offices

Official Sample Ballots

To be shown to public and used in demonstrating how to fill out and fold official ballots

32

Lifted from Atty. Alberto Agras Election Law handouts.

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Sample Ballots Emergency Ballots

Non-Official Ballots

Should not contain any name of any candidate Prepared by Political Parties and Candidates showing list of supported candidates Similar in form to Official Ballots, not official ballots, prepared by Local Treasurer; Parties and candidates must be notified and agree in writing to their use Ballots that were used by voter found in the ballot box but are not official ballots

Not to be used in the elections Election Propaganda Promotes Candidates

Spoiled Ballots

Spurious Ballots Unused Ballots

Official Ballots given to a voter which he/she accidentally tears; No voter shall change his/her ballot more than 2x Ballots with different serial numbers than that given before voter prepared ballot Ballots returned by voter without detachable coupon Ballots with separately printed serial numbers Officials ballots not used in the elections at the precinct level

Excess Ballots

Official Ballots in excess of number of voter who actually voted (determined after voting hours and before counting); All ballots are returned in the box, mixed and the poll clerk without seeing the ballots and with his/her back to the box, shall publicly draw out as may ballots as may equal to the excess

To be used in elections in the event of failure to receive the official ballots on time, no sufficient ballots or where they are destroyed Considered as marked ballots Shall not be counted Placed envelop labeled marked ballots, placed in compartment of valid ballots Ballots must be marked by the Board of Election Inspectors as spoiled and signed Chair notes in voting record Ballot deposited in ballot box (compartment for spoiled ballots) Not be used in elections unless Comelec authorizes their use Number of unused ballots will be determined List to be prepared and signed by Board of Election Inspectors Ballots shall be torn halfway Excess ballots placed in an envelope which shall be marked excess ballots and which shall be sealed and signed by the members of the board of election inspectors The envelope shall be placed in the

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Marked Ballots

Ballots used by voters that reveal their identities, those that contain irrelevant identities, those that contain irrelevant markings and nonofficial b allots (except emergency ballots) found in ballot box; At least a majority of the board of election inspectors determine whether or not ballots is marked

compartment for valid ballots, but its contents shall not be read in the counting of votes Shall not be counted Placed envelope labeled marked ballots, placed in compartment of valid ballots

Challenge of illegal voters. Any voter, or watcher may challenge any person offering to vote for not being registered, for using the name of another or suffering from existing disqualification. The BEI shall satisfy itself as to whether or not the ground for the challenge is true by requiring proof of registration or the identity of the voter No voter shall be required to present his voter's affidavit on election day unless his identity is challenged. His failure or inability to produce his voter's affidavit upon being challenged, shall not preclude him from voting if his identity be shown from the photograph, fingerprints, or specimen signatures in his approved application in the book of voters or if he is identified under oath by a member of the BEI. Challenge based on certain illegal acts. Any voter or watcher may challenge any voter offering to vote on the ground that: 1) the challenged person has received or expects to receive, has paid, offered or promised to pay, has contributed, offered or promised to contribute money or anything of value as consideration for his vote or for the vote of another; 2) that he has made or received a promise to influence the giving or withholding of any such vote or 3) that he has made a bet or is interested directly or indirectly in a bet which depends upon the result of the election. The challenged person shall take a prescribed oath before the BEI that he has not committed any of the acts alleged in the challenge. Upon the taking of such oath, the challenge shall be dismissed and the challenged voter shall be allowed to vote, but in case of his refusal to take such oath, the challenge shall be sustained and he shall not be allowed to vote. Rules on Appreciation of ballots (Please see Handouts) Jurisprudence

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Ranilo A. Velasco v. COMELEC and Benigno C. Layesa, Jr., GR No. 166931, February 22, 2007) The Supreme Court drew the line between permissible deviations from the proper way of casting ballots and flagrant disregard of the elementary rules in voting under the present electoral system. The Court said that in appreciating the votes in question, the COMELEC applied the neighborhood rule which refers to an exception to the rule on appreciation of misplaced votes under Section 211 (19) of the Omnibus Election Code which provides that Any votein favor of a candidate for an office for which he did not present himself shall be considered a stray vote. Section 211 (19) is meant to avoid confusion in the minds of the election officials as to the candidates actually voted for and to stave off any scheming design to identify the vote of the elector, thus defeating the secrecy of the ballot which is a cardinal feature of our election laws, explained the Court. It added that the said provision also enforces Section 195 of the Omnibus Election Code which provides that in preparing the ballot, each voter must fill his ballot by writing in the proper place for each office the name of the individual candidate for whom he desires to vote. The Court enumerated the exceptions to Section 211 (19). These are: (1) a general misplacement of an entire series of names intended to be voted for the successive offices appearing in the ballot; (2) a single or double misplacement of names where such names were preceded or followed by the title of the contested office or where the voter wrote after the candidates name a directional symbol indicating the correct office for which the misplaced name was intended; and (3) a single misplacement of a name written (a) off-center from the designated space, (b) slightly underneath the line for the contested office, (c) immediately above the title for the contested office, or (d) in the space for an office immediately following that for which the candidate presented himself. The Court said that the misplaced votes in these cases are credited to the candidates so indicated because the intention of the voters to so vote is unmistakable from the face of the ballots. The Court said that two of the votes contested in Velascos appeal were misplaced votes or votes cast for a candidate for the wrong, orinexistent office, as Layesas name written on the ballots was not found on or near any of the spaces corresponding to the correct position of Punong Barangay. The Court added that such votes did not fall under any of the enumerated exceptions to Section 211 (19) as the two ballots present an unusual case of extremes while respondents name was written way off its proper place, the names of persons who were presumably candidates for Sangguniang Barangay Kagawad were properly placed, without the slightest deviation, in the first seven lines for that office. Appreciation of ballots is the function of the BEI, not the BOC (Sanchez vs. COMELEC, 153 SCRA 67) A ballot should be counted even if it was not signed at the back by the chairperson of the Board of Election inspectors33.

33

De Guzman v. Sison, A.M. No. 99-731-RTJ, March 25, 2001; Pacris v. Pangalaliwan, A.M No. RTJ-981403

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Ballots with detachable coupons (lower portion34) or with the upper stubs deposited in the compartment for valid ballots are valid.

35

used in elections

Ballots that bear the incorrect nickname of a candidate even if such nickname is indicated in the certificate of candidacy are stray votes i.e. not counted in favor said candidate36. There must be a final judgment before the election in order that the votes of a disqualified candidate can be considered stray. When a candidate has not been disqualified by final judgment during Election Day and was voted for, the votes cast in his favor cannot be declared stray37. The use of two or more writings in one ballot does not invalidate the ballot unless it should clearly appear that they were deliberately put by the voter to serve as identification mark38. Appellations of affection and friendship (e.g. Pare ko) do not invalidate a ballot39. The neighborhood rule applies in situations where the name of candidate for punong barangay was written on the first line for barangay kagawad (the space for punong barangay was left vacant). This rule does not apply when name was written on second line40. The vote for Adong should be considered a vote for Acong the registered nickname of a candidate under the idem sonams rule41. Upon termination of the counting, the ballot boxes must be forwarded directly to the local treasurer. A chairperson of a Board of Election Inspectors is liable for an election offense when he/she brought home the election paraphernalia42. The appointment of military personnel as members of the board of election inspectors cannot be done since under Republic Act 6646, the boards of election inspectors are composed of public school teachers. They can only be relieved for cause and after due hearing43. The minutes of voting will show the existence of illiterate or physically disabled voters which necessitated voting by assistors. Thus, several ballots could be prepared by one person, the assistor44. Election Returns (ER) The copies of the election returns shall be distributed as follows: For President, Vice President, Senators and Members of the House of Representatives first copy - city or municipal board of canvasser second copy - to the Congress, directed to the President of the Senate third copy COMELEC
34 35

De Guzman v. Sison, A.M. No. 99-731-RTJ, March 25,2001 Pacris v. Pangalilawan, A.M. No. RTJ-98-1403, August 14,2000 36 Villarosa v. House of Representatives Electoral Tribunal, G.R. No. 143351, September 14,2000 37 Ocampo v. House of Representatives Electoral Tribunal, 432 SCRA 144 [2004] 38 Ong v. COMELEC, G.R. no. 144197, December 13,2000; Section 211.22, Omnibus Election Code 39 Ong v. COMELEC, G.R. no. 144197, December 13,2000; Section 211.13, Omnibus Election Code 40 Ferrer v. COMELEC, 330 SCRA 229 41 Cantoria v. COMELEC, 444 SCRA 538 [2004] 42 Herrera v. Court of Appeals, G.R. No. 14651, February 19, 2002 43 Cawasa v. COMELEC, G.R. No. 150469, July 3,2002 44 De Guzman v. COMELEC, 426 SCRA 698 [2004]

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 count

fourth copy - dominant majority party fifth copy - dominant minority party sixth copy - citizens' arm authorized by the COMELEC to conduct an unofficial seventh copy - deposited inside the compartment of the ballot box for valid ballots

For local officials: first copy - city or municipal board of canvassers second copy COMELEC third copy - provincial board of canvassers fourth copy - dominant majority party fifth copy - dominant minority party sixth copy - citizens' arm authorized by the Commission to conduct an unofficial count seventh copy - deposited inside the compartment of the ballot box for valid ballots Certificates of Votes. After the counting of the votes cast, the BEI shall issue a certificate of votes upon request of the watchers. The certificate shall contain the number of votes obtained by each candidate written in words and figures, the number of the precinct, the name of the city or municipality and province, the total number of voters who voted in the precinct and the date and time issued, and shall be signed and thumbmarked by each member of the board. Certificate of Votes as Evidence. COVs shall be admissible in evidence to prove tampering, alteration, falsification or any anomaly committed in the election returns concerned, when duly authenticated by testimonial or documentary evidence presented to the board of canvassers by at least two members of the board of election inspectors who issued the certificate: Provided, That failure to present any certificate of votes shall be a bar to the presentation of other evidence to impugn the authenticity of the election returns45. Functions of certificate of votes: 1) To prevent or deter the members of the BEI from altering the statements because they know of the existence of such certificates 2) To advise the candidate definitely of the number of his votes, so that in case the election statement submitted to the BOC does not tally with the certificate in his hands, he may proceed to treasurers office or COMELEC and secure the official copy of statements, then present such copy to the BOC and demand appropriate remedy 3) To serve as evidence in the protest and in subsequent prosecution of election inspectors. Rules on COVs

COVs can only serve as evidence to prove tampering or falsification of election returns. It does not constitute sufficient evidence of the results of the election. Only election

45

Balindong vs. COMELEC, 27 SCRA 567.

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returns are. Neither is the certified list of winning candidates sufficient evidence of the results of the elections.46 The Certificate of Votes can only be admissible in evidence to prove tampering, alteration, falsification, or any other anomaly committed in the election returns concerned, when duly authenticated. Neither is the tally board sufficient evidence of the real result to the election. A certificate of votes does NOT constitute sufficient evidence of the true and genuine results of the elections Only election returns are evidence of true and genuine results of the elections. The certificate of votes is also evidence of the votes obtained by the candidates but said certificate must be duly authenticated, signed and thumbmarked by the each member and not just the chairman. Where the issue involves discrepancy in the election return, resort to the certificate of votes is IN ORDER, and NOT when it involves material defects in an election return under Section. 234. I. Board of Canvassers (BOC)

Board of Canvassers Function: 3-Member Collegial Body tasked to Canvass Election Returns or Certificates of Canvass and Proclaim Winning Candidates. Composition of the Board of Canvassers (BOC): A. Provincial BOC: Provincial election supervisor OR a lawyer in the regional office of the COMELEC as chairman Provincial fiscal as vice-chairman Provincial superintendent of schools as member B. City BOC City election registrar or lawyer of COMELEC as chairman City fiscal as vice0chaitman City superintendent of schools as member In cities with more than 1 election registrar, COMELEC shall designate C. Municipal BOC Election registrar or rep of COMELEC as chairman Municipal treasure as vice-chairman Most senior district school supervisor or in his absence a principal in the school district or the elementary school. NOTE: The relationship of the BOC with one another or with a candidate up to the 4th degree is a ground for removal or disqualification of the member of the BOC concerned.

46

Recabo v. COMELEC, G.R. No. 134293, June 21, 1999

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Rules on Substitution: 1. In case of non-availability or disqualification of CHAIRMAN of the BOC, COMELEC shall appoint as substitute a ranking lawyer of COMELEC 2. With respect to other members, the following shall be substitutes IN THE ORDER NAMED: a. provincial BOC: i. provincial auditor ii. Registrar of Deeds iii. Clerk of Court nominated by Executive Judge of RTC iv. Any other available appointive provincial officials b. In case of city BOC, officials corresponding to those enumerated in provincial BOC at the city level. c. Municipal BOC: i. Municipal Administrator ii. Municipal Assessor iii. Clerk of Court nominated by Executive Judge of MTC iv. Any other available municipal officials Functions of the BOC 1. city or municipal BOC shall canvass the ER of President, Vice-Pres, Senators, Congressman and for elective provincial and city or municipal officials. And thereafter shall prepare the certificate of canvass and proclaim the winners. 2. provincial BOC shall canvass the certificate of canvass for President, Vice-Pres, Senators, Congressman and for elective provincial officials as well as plebiscite results as submitted by the BOC of municipalities and component cities. Upon completion of the canvass, it shall prepare a certificate of canvass and proclaim the winners The BOC shall prepare the certificate of canvass duly signed and thumbmarked supported by a statement of votes received by EACH candidate in each polling place and on the basis thereof proclaim the winners. Failure to comply with this is an election offense 1. city or municipal BOC shall prepare a certificate of canvass in 7 copies and distributed as follows: a. 1st copy to provincial BOC for its use in its canvass b. 2nd copy to COMELEC c. 3rd copy shall be kept by chairman of BOC d. 4th copy given to citizens arm e. 5th, 6th and 7th copies shall be given to any 3 of the 6 major political parties 2. Provincial BOC shall prepare 7 copies of certificate of canvass for President, VicePresident and Senators and distributed as follows: a. 1st copy sent to Congress directed to President of Senate for its use in the canvass of election results for President and Vice-President b. 2nd copy to COMELEC for its canvass of election result for Senators c. 3rd copy shall be kept by Chairman of BOC d. 4th copy to citizens arm e. 5th, 6th and 7th copies shall be given to any 3 of the 6 major political parties In the discharge of its function, BOC may constitute a canvassing committee to be composed of 3 members

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Congress shall act as the Board of Canvassers for the election of President and Vice President pursuant to Republic Act No. 7166 Section 18.5 of RA 9189, insofar as it grants sweeping authority to the COMELEC to proclaim all winning candidates is unconstitutional as it is repugnant to Sec. 4, Art VII of the Constitution which vests in Congress the authority to proclaim the winning Presidential and Vice-Presidential candidates. (Makalintal vs. COMELEC ) Congress may validly delegate the preliminary determination of the authenticity and due execution of the Certificates of Canvass to a Joint Congressional Committee (Ruy Elias Lopez vs. Senate of the Philippines, Even after Congress had adjourned its regular session, it may continue to perform the constitutional duty of canvassing the presidential and vice-presidential election results without need of any call for a special session by the President. (Pimentel Jr. vs. Joint Committee of Congress,) FEATURES OF the BOC 1. Canvassing in Public. Only member of BoC and Canvassing Committees and Watchers and Lawyers and Comelec Representatives allowed. General public may be allowed to witness proceedings. Place will be designated. 2. Proceedings are continuous from day to day, without interruption except to adjourn (await ERs). No dilatory moves will be allowed. Canvass shall be completed: 36 hours for municipalities, 48 hours for cities and 72 hours for provinces / districts. 3. BoC is a collegial body. Quorum needed. Majority votes all members (2 of 3) needed to decide disputes. 4. BoC exercise ministerial duty (i.e. Consider only Election Returns, mechanical and mathematical computation addition of votes; Face of Election Returns; Not consider evidence aliunde). 5. BoC exercises quasi-judicial functions (i.e. Resolve pre-proclamation controversies, Suspend canvass of questioned Election Returns / Certificates of Canvass) for Local positions and temporary tally made. Canvass for National positions to proceed. 6. Grounds for Pre-Proclamation Controversies are exclusive: Misappreciation of ballots, padding of voters list, vote-buying, terrorism, duress, intimidation and absence of padlocks are not grounds for pre-proclamation issues. 7. After all election returns/ certificates of canvass canvassed and contested returns/ certificates ruled upon, BoC shall suspend canvass. No proclamation until Comelec rules on appeal made on rulings (pre-proclamation cases) unless results will not be affected. 8. Proceedings before BoCs are summary. 9. BoC can enforce obedience to its lawful orders. May call police officers. 10. Comelec has control over BoC. 11. No police, army or security officer allowed within 50 meters from canvassing room unless called in writing by the BoC to stay right outside room. 12. After proclamation, BoC becomes functus officio. Statement of Votes Tabulation per precint of the votes obtained by the candidates as reflected in the ERs. Prepared by the BOC Nature of the functions of BOC:

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1. BOC is a ministerial body enjoined to canvass votes in the ER submitted to it in due form. Its powers are limited to mechanical or mathematical function of ascertaining and declaring the apparent result of the election by adding or compiling the votes cast for each candidate as shown in the ER 2. BOC is empowered to accept as correct ER which are in due form and to ascertain and declare the results as it appears therefrom. 3. BOC CANNOT open the ballots NOR recount the votes. 4. It has NO juridical power and must depend exclusively upon the statements of returns made by BEI. 5. BOC are to be satisfied of the genuiness of the ER, namely that they are not forged and spurious. When so satisfied, they may NOT reject the ER because of informalities or because of illegal and fraudulent practices in the election. Thus, they CANNOT pass upon the validity of an ER, much less exclude it from the canvass. 6. Accepted rule is that so long as the ER appear to be authentic and duly accomplished, BOC CANNOT look beyond them to verify allegations of irregularities in the casting or counting of votes 7. The duty of the BOC to canvass ONLY authentic or genuine ER implies that it has quasijudicial power to determine whether the ER submitted to it are genuine or not. 8. It is the ministerial duty of BOC to count the results as they appear on the ER which on their face do NOT reveal any irregularities or falsities. A contarario, a canvass based on tampered returns is illegal. Alleged tampering must therefore be ascertained first by BOC and in appropriate cases by COMELEC. 9. In the discharge of its duty to canvass, where objection is made thereto, each ER is examined and BOC should determine whether there are material defects in the ER. The BOC may NOT go beyond the ER to ascertain questions relating to the defects or irregularities. 10. BOC which proclaimed as winners certain candidates on the basis of erroneous ER, with the result that the candidate obtaining the winning number of votes was NOT proclaimed may be held criminally liable. 11. The preparation of incorrect certificate of canvass and erroneous proclamation is punishable 12. The death of a candidate AFTER election does NOT empower BOC to disregard the votes cast in his favor and to count the votes only of the remaining candidates and proclaim the candidate who obtains the winning votes. BOC MUST count the votes in favor of said dead candidate and to proclaim him as winner if he garners the highest number of votes BUT with information that he died, to pave the way for the law on succession, Settled id the rule that the candidate who obtains the highest number of votes or is later declared disqualified or NOT eligible does NOT necessarily entitle the candidate who obtained the second highest to be declared as winner. When BOC may proclaim winners: After BOC makes a ruling as to the existence of defects in the ER, it merely sets the questioned ER aside and does NOT canvass the votes therein. It cannot nullify such ER because it is vested with the COMELEC in an appeal taken by the aggrieved party from the ruling of the BOC. The law requires that the BOC shall continue to canvass the remaining unquestioned ER. If after the canvass, it should be determined that the ER which have been set aside will affect the results of the election, NO proclamation shall be made

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EXCEPT upon order of the COMELEC after due notice and hearing. Any proclamation in violation of which shall be void. If the questioned ER will NOT affect the results of the election, the BOC may legally proceed to make the proclamation even WITHOUT authorization from COMELEC. When proclamation by BOC is VOID: 1. A proclamation made where the questioned returns set aside will affect the result of the election and the BOC proceeded to proclaim without authority from COMELEC. 2. A proclamation made on the basis of falsified returns or returns prepared under duress, where such ER would affect the results of the election. 3. A proclamation made by BOC in defiance of the COMELECs order to use only genuine ER or in defiance of the COMELECs lawful directive to suspend proclamation. 4. Proclamation made on the basis of incomplete ER where the missing ones would affect the result of the lection 5. Proclamation made by BOC which is illegally constituted, where a member NOT disqualified to sit therein has been illegally excluded, where its meeting was unauthorized either because it lacked the quorum or did not meet at all 6. Proclamation made by BOC which was NOT signed by majority of all members thereof 7. Proclamation based on advance copies or Photostat copies of ER NOTE: A proclamation which is null and void is NO proclamation at all. J. Pre-Proclamation Controversies (PPC) A PPC refers to any question pertaining to or affecting: 1. the proceedings of the BOC which may be raised by any candidate or by any registered political party or coalition of political parties before the BOC or COMELEC; or 2. any matter raised under Sec 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the ER 233--234--235--236--when ER are delayed, lost or destroyed Material defects in the ER When ER are tampered or falsified Discrepancies in the ER

Sec 233: When ER are destroyed, lost or delayed If ER is missing, BOC shall obtain such missing returns from BEI If ER are lost or destroyed, BOC, upon prior authority from COMELEC may use any of the authentic ER or certified copy issued by COMELEC Sec 234: Material defects in the ER Material defect if some requisites in form or data have been omitted in the ER. BOC shall call BEI to correct the ER In case of omission of the name or votes of any candidate in the ER, BOC shall require BEI to complete the data PROVIDED that if the omitted ER CANNOT be ascertained except by recount, the COMELEC must first satisfy itself that the integrity of the ballot box has NOT been violated. COMELEC shall then order BEI to open ballot box and do a recount for the omitted candidate with notice to other candidates

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Sec 235: When ER appears to be tampered or falsified The ER must appear to be tampered or falsified AFTYER they have left the hands of the BEI or were prepared by BEI under duress, force, intimidation or prepared by persons other than BEI BOC shall use the copies of ER. If ALL of them are tampered, upon prior authority of COMELEC, BOC shall use the ER inside the ballot box If even the ER inside the ballot box is tampered, COMELEC may order a recount if the integrity of the ballot box has been preserved and prepare a new ER with due notice to other candidates. Sec 236: Discrepancies in the ER: Discrepancies in the other authentic copies of the ER from a polling place or in the votes of any candidate in words and figures in the SAME ER AND the difference affects the result of the election COMELEC, upon motion of the BOC may order a recount for the sole purpose of determining the true result of the count of votes of the candidate concerned, after satisfying itself that integrity of the ballot box has NOT been violated with due notice to other candidates. No PPC in election of President, Vice-President, Senators and Members of the House of Representatives However petition to correct manifest errors or questions affecting the composition or proceedings of the BOC are allowed Scope of PPC: 1. Questions pertaining to the proceedings of the BOC such as: a. illegal composition or proceedings of BOC b. when canvassing was pre-determined and manipulated which resulted into a sham c. lack of sufficient notice to the members of BOC d. disregard of manifest irregularities It may be initiated or filed with BOC whose ruling is subject to appeal to COMELEC within 3 days therefrom OR directly with the COMELEC

2. Issues under Secs 233, 234, 235, 236

It shall be brought in the first instance with BOC only. May be appealed to COMELEC within 48 hours therefrom NOTE: These grounds are EXCLUSIVE and RESTRICTIVE!! Extent of COMELECs jurisdiction: 1. COMELEC has EXCLUSIVE jurisdiction over PPC. IT may motu proprio or upon written petition and after due notice and hearing order partial or total suspension or annul a proclamation. 2. PPC shall be decided by the COMELEC in division. The COMELEC en banc only has jurisdiction only on MFR of the resolution of the COMELEC in division. 3. COMELEC discharges its power in the exercise of : a. its original jurisdiction in cases directly brought before it or b. appellate jurisdiction in appeals from rulings of BOC on any issue under Sec 243

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COMELEC exercises authority to decide PPC in 2 instances: 1. in appeals from rulings of BOC rulings on questions contesting its composition or proceedings. Appeal therefrom must be taken within 3 days from ruling of BOC rulings on questions contesting ER. Adverse party must inform BOC that he intends to appeal and within 48 hours, he must file with BOC a written and verified notice of appeal and within an unextendible period of 5 days, he has to take the appeal to COMELEC. 2. in petitions directly filed with it. On the basis of the records and evidence, the COMELEC shall summarily decide the appeal within 7 days from receipt thereof. The 7 day period is directory. If however, COMELEC fails to decide the appeal by the beginning of the term of office involved, the ruling of the BOC as a rule, is deemed affirmed. Sec 243: the following are proper issues that may be raised in a PPC: 1. Illegal composition or proceeding of BOC 2. 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 thereof as mentioned in Sec 233, 234, 235 and 236 3. The ER were prepared under duress , threats, coercion or intimidation or they are obviously manufactured or not authentic 4. When substitute or fraudulent ER in controverted polling places were canvasses, the results of which materially affected the standing of the aggrieved candidate. Notes on the 1st ground: Illegal composition or proceeding of BOC: 1. where BOC NOT constituted in accordance with law, no quorum and required notice to members thereof. 2. where a candidate objected to canvassing held by BOC, and was overruled by BOC. His recourse would be to appeal the same within 3 days from the time of contested ruling, otherwise it could no longer be entertained. 3. Even if questions on discrepancies between the number of votes appearing in statement of votes and that of ER is NOT a ground for under Sec 243, nonetheless it involves the proceedings of the BOC that may be raised directly with the COMELEC under Sec 241 because the statement of votes supports the COC and is the basis of proclamation. 4. However, the appreciation of votes is NOT a proceeding of BOC but of the BEI, hence subject of election protest and NOT PPC. NOTE: In PPC, COMELEC is NOT to look beyond the ER which is on their face regular and authentic. A party seeking to raise issues beyond the ERs face must file an election protest. A PPC is summary in nature, hence resort to examination of fingerprints or handwriting appearing on the voters list may NOT be allowed. The following are NOT PPC issues: 1. Proceedings of the BEI such as appreciation of ballots 2. the question of padding of the registry list of voters 3. The fact that certain votes were counted by the BEI should have been invalidated 4. Allegations of massive vote buying and terrorism Notes on the 2nd Ground : Material Defects in the ER

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1. ER lacks requisites of form or data. In which case, BOC shall call BEI to correct the returns expeditiously. That duty devolves upon the BOC and NOT the COMELEC. 2. Omission of the signatures or initials of members of BEI in the ER is NOT a requisite form or data that could be corrected because the law requires that the signatures be affixed in public view immediately after the last voter record. Such omissions a substantial defect that makes the ER falsified or manufactured. 3. When mistakes pertain to omission of votes of candidate, which CANNOT be corrected by the BEI except by recount, the candidate concerned may petition COMELEC to reopen the ballot box and do a recount after notice to other candidates and after COMELEC is satisfied that integrity of ballot has NOT been violated Notes on 3rd ground: Obviously manufactured returns 1. Manufactured when NO elections were held or where the BERI stated that they never served or did NOT participate in any election. COMELEC may inquire in a PPC into this question. 2. An obviously manufactured ER is one which is evident from its face that it is so such as when it has NOT been issued by BEI or has been manufactured by some unknown 3 rd party 3. ER is obviously manufactured where they show a great excess of votes that could have been legally cats. BUT, the mere fact that the registry list of voters was padded does not render the ER obviously manufactured where the votes cast for a candidate do NOT exceed the number of voters in the padded list. 4. The padding of list is a ground for election protest, not PPC> 5. It is NOT enough that there is duress, force, etc, . There must also be showing that the same affected the regularity or genuiness of the ER or that the true results of the voting have been altered. 6. Where the ER is NOT signed by BEI, it raises serious doubts as to the authenticity of the ER. Such fatal omission stamps the ER with the mark of falsity and justifies their exclusion from canvass. Notes on manifest errors in the ER: 1. A proclamation based on faulty tabulation of votes is flawed and a petition to correct such errors, even if filed out of time may sometimes be considered by COMELEC. 2. Where the proclamation was flawed because it was based on a clerical or mathematical error, there can be NO valid proclamation. The same may be challenged even after the candidate has assumed office. 3. The order for correction must be made in writing and must be promulgated. It may be appealed within 24 hours from promulgation. 4. Once a timely appeal was made, BOC shall NOT proclaim winner unless the votes are NOT affected by the appeal. 5. Appeal must implead the BOC as respondents and all parties concerned. 6. Upon receipt of appeal, Clerk of Court shall issue summons and set it for hearing 7. appeal shall be heard by COMELEC 8. The fact that a proclamation has been made does NOT pose a legal obstacle to the appeal because where a void proclamation is NO proclamation at all and COMELEC retains jurisdiction to declare it a nullity 9. Where voting was done buy persons other than the registered voters while the armed men dictated and prepared the ballots and ER, there was NO election at all so COMELEC may invalidate the ER.

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10. Where massive vote buying, terrorism and other irregularities affected the integrity of the ER, the ER may be nullified by COMELEC. Even if this is a ground for election protest, it does NOT preclude COMELEC to exercise its authority as sole judge of PPC and exclude them from the canvass The Lagumbay Doctrine of Statistical Improbability: --This pertains to instances 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 candidates of 1 party received all the votes, each of whom exactly the same number and the opposers got zero. It leads to the impression that the ER was manufactured. --This rule as to render the ER excludable from canvass may apply only when such improbability is shown on the ER itself without regard to evidence aliunde Where doctrine does NOT apply: 1. if a candidate obtained 100% of the votes cast or where a number of votes cast in favor of a candidate was NOT greatly in excess of the registered number of voters. 2. where 2 of the party candidates received zero votes while the others received some votes 3. where nullification of the questioned ER will NOT affect the substantial winning margin of the candidate (without prejudice to an election protest) Sec 245 as amended by RA 7166: Contested ER: All PPC pending before COMELEC shall be deemed terminated at the beginning of the term of office of the candidate and the rulings of BOC shall be deemed affirmed WITHOUT prejudice to file an election protest. HOWEVER, proceedings may still continue with the COMELEC when on the basis of the evidence, COMELEC finds the petition to appear meritorious. And accordingly issues an order for the proceeding to continue OR when an appropriate order has been issued by SUPREME COURT in a petition for certiorari. Questions relating to preparation, transmission, etc of ER shall be brought in the 1st instance with the BOC. All PPC relating to ER may be appealed to COMELEC, within 7 days from receipt of ruling by BOC. COMELECs decision shall be executory after the lapse of 7 days from receipt by the losing party of decision of COMELEC. Procedure in disposition of Contested ER: 1. Candidate or political party shall submit oral objection to chairman of BOC at the time the questioned ER is presented for inclusion in the canvass. Objection shall be recorded in the minutes of the canvass. 2. Upon receipt of objection, BOC shall automatically defer the canvass on the contested ER and shall proceed to canvass with the others not contested. 3. Simultaneous with the oral objection, the objecting party must enter his objection in a written form within 24 hours from presentation of the objection as well as evidence in support thereto. Within the same 24 hour period, any party may file a written and verified opposition to the objection. BOC shall NOT entertain any objection or opposition UNLESS reduced in WRITING. 4. Upon receipt of evidence, BOC shall take up the contested ER, and summarily rule thereon. BOC shall enter its ruling on the prescribed form and authenticate the same by signatures of members of BOC.

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5. Party adversely affected by the ruling of BOC shall immediately inform BOC if he intends to appeal the ruling, BOC shall enter said info in minutes of the canvass, set aside ER and proceed to consider the other ER. 6. After all Uncontested ER have been canvassed and contested ER ruled upon by it, BOC shall suspend the canvass. Within 48 hours therefrom, any p[arty adversely affected may file with BOC a written and verified notice of appeal and with an unextendible period of 5 days thereafter, an appeal may be taken to COMELEC. 7. Immediately upon receipt of notice of appeal, BOC shall make the appropriate report to COMELEC elevating the records and evidence submitted in the canvass and furnishing the parties with copies of report. 8. On the basis of such, COMELEC shall decide summarily the appeal within 7 days from receipt of such records. An appeal brought without the requisite accomplished forms and evidence shall be summarily dismissed. Decision of CXOMELEC shall be immediately executory after lapse of 7 days from receipt of losing party. 9. BOC shall NOT proclaim any candidate as winner unless authorized by COMELEC after the latter has ruled on the objections brought to it on appeal by losing party. Any proclamation made in violation hereof shall be void UNLESS the contested ER will NOT affect the results of the election. In PPC, COMELEC may order the opening of ballot boxes to retrieve the ER therein deposited or recount the votes as a basis for the proclamation of the winning candidates in the following instances: 1. Where all copies of the ER outside of the ballot box are lost or destroyed, COMELEC , upon proper petition, may order that the ballot box be opened to retrieve the ER 2. Where votes for a candidate were omitted in the ER and they CANNOT be ascertained without recounting the ballots, COMELEC, upon proper petition , may order a recount 3. Where all copies of the ER outside the ballot box are tapered or falsified with, the COMELEC, upon proper petition may retrieve the ER inside ballot box. If such ER is also tampered with, there may be a recount of ballots and preparation of a new ER to be used in the canvass. 4. Where discrepancy or difference exists between 2 or more authentic copies of the ER or where discrepancy exits between the votes expressed in words and those in figures in the same ER, COMELEC may order a recount a prepare a new ER. 5. Where all the copies of the ER were lost, NO canvassing could have been logically conducted by BOC, hence a recount is in order. NOTE: Before ballot box will be opened, COMELEC must first satisfy itself that the integrity of the ballot box has NOT been violated and that the ER must affect the results of the election. Partial proclamation Notwithstanding the pendency of PPC, COMELEC may summarily order the proclamation of winning candidates whose election will NOT be affected by the outcome of the controversy. This can be done even without prior notice and hearing. Actually, BOC can proclaim as winners those not contested without prior authority form COMELEC. COMELEC may suspend or annul illegal proclamations made by the BOC. The following are illustration: 1. proclamation made on the basis of incomplete ER and the returns NOT included in the canvass would materially affect the result of the election. 2. proclamation made in an unauthorized meeting of the BOC either because it lacked the required quorum or because it did NOT meet at all.

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3. proclamation made in defiance of the COMELECs orders not to proclaim 4. proclamation made on the basis of falsified returns which will affect the results of the election 5. proclamation made notwithstanding patent defects in the ER without awaiting proper remedies for verification and use of authentic copies thereof 6. proclamation made even before questions involving the validity of returns which will affect the result of the election are resolved by COMELEC 7. proclamation made by wrongfully excluding a number of ER that would affect the result of the election 8. proclamation made on the basis of uncontested returns, in which the contested returns would affect the results of the election without authority from COMELEC. COMELEC has NO authority to annul the proclamation of a candidate or suspend its effect without prior notice and hearing. Effects of filing petition to annul proclamation: 1. filing with COMELEC of a petition to annul or to suspend the proclamation or with the SUPREME COURT on certiorari shall suspend the running of period within which to file an election protest or quo warranto 2. Appeal by certiorari to the SUPREME COURT is part of the annulment proceeding. The case is NOT over until the SUPREME COURT gives its verdict; hence the computation of the 10 day period for filing an election protest does NOT begin until that verdict has been handed down by the SUPREME COURT. 3. Election protest filed ad cautelam pending PPC does NOT render the latter moot and academic, where its purpose is merely to insure the preservation of all ballot boxes that would otherwise be used for another election. 4. Rule is that the proclamation of a winning candidate makes a PPC NO longer viable. BUT, this is true only where the proclamation is based on a complete canvass. Hence, where a proclamation is void, the proclaimed candidates assumption of office CANNOT deprive COMELEC of the power to declare such nullity and annul the proclamation. Jurisprudence47

1. Pre-proclamation controversies are limited to challenges directed against the Board

of Canvassers and proceedings before said Board relating to particular election returns to which candidates should have made specific verbal objections subsequently reduced to writing. A pre-proclamation controversy does not delve into the conduct of the elections. A pre-proclamation controversy is limited to an examination of the election returns on their face. As a rule, the Comelec is limited to an examination of the election returns on their face. It is beyond the Comelecs jurisdiction to go beyond the face of the returns or investigate election irregularities. The proceedings in a pre-proclamation controversy are summary in nature. Reception of evidence aliunde, such as the List of Voters with Voting Record is proscribed. Issues such as fraud or terrorism attendant to the election process, the resolution of which would compel or necessitate the Comelec to pierce the veil of election returns which appear to be prima facie regular, on their face, are anathema to a preproclamation controversy. Such issues should be posed and resolved in a regular election protest. In a regular election protest, the parties may litigate all the legal and

47

Lifted from Atty. Alberto Agras Election Law handouts.

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factual issues raised by them inasmuch detail as they may deem necessary or appropriate.48

2. The rule that the Comelec cannot go behind the face of an election return admits an
exception. When there is prima facie showing that the election return admits an exception return is not genuine, as when several entries have been omitted, the rule does not apply.49

3. A proclamation made pending appeal of the ruling of the board of canvassers 50or
when the Comelec has yet to resolve the petitions for special election (in precincts were no election were conducted)51 is void. This rule applies only where the objection deals with a pre-proclamation controversy52. Once a proclamation has been made, a pre-proclamation caser should be dismissed.53 When a candidate (whose certificate of candidacy has been denied but has not become final) has been proclaimed, the resolution canceling the certificate of candidacy should be set aside.54

4. Decisions of the board of canvassers not appealed within the 5-day period become
final. An appeal concerning the composition or proceedings of the board must filed with the Comelec within three days.55

5. An incomplete canvass of votes is illegal and cannot be the basis of a subsequent

proclamation a canvass is not reflective of the true vote of the electorate unless the board of canvassers considers all returns and omits none. However, this is true only where the election returns missing or not counted will affect the results of the election. Since the election returns not included in the national canvass as well as the results of the special elections to be held would not materially affect the results of the elections, it is immaterial whether the Comelec used provincial certificates of canvass or municipal certificates of canvass in the subsequent canvass56. When the issue of eligibility of a candidate is still pending, the canvass which excluded said candidate is still pending, the canvass which excluded said candidate was an incomplete canvass and the proclamation of the other candidate is illegal. 57To determine the winning candidate, it is necessary to recanvass the returns in all the precincts.58

6. A petition to correct entries in the certificates of canvass on the ground of manifest

errors must be predicated on errors that appear on the face of the certificate of canvass sought to be corrected. The precincts must be identified59. The Board of Canvassers or the Comelec cannot go beyond the returns and investigate election irregularities (as in falsification)60. There is manifest error when on the face of an
48 49

Lucman v. COMELEC, G.R. No. 166229, June 29, 2005 Lee v. COMELEC, 405 SCRA 363 50 Utto v. COMELEC, G.R. No. 150111, January 31,2002 51 Imman v. COMELEC, 322 SCRA 866 52 Navarro v. COMELEC, G.R. No. 150799, February 3,2003 53 Siquian v. COMELEC, G.R. No. 135627, December 9,1999 54 Saya-ang v. COMELEC, G.R. No. 155087, November 28, 2003 55 Sena v. COMELEC, G.R. No. 134163, December 13, 2000 56 Barbers v. COMELEC, G.R. No. 165691, June 15,2005 57 Lorenzo v. COMELEC, G.R. No.158371, December 11,2003 58 Salic v. COMELEC, 424 SCRA 735 59 OHara v. COMELEC, G.R. No. 148941, March 13,2002 60 Belac v. COMELEC, G.R. No. 149802, April 4,2001

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election return, a candidate was credited with more (or less) than what is showed in the tally61. A petition for correction of manifest errors may be filed involving the elections of members of the House of Representatives 62. Manifest errors in a municipal certificate of canvass may be raised before the Municipal or Provincial Board of Canvassers63. A pre-proclamation case praying for correction of manifest errors must be filed not later than one day after the date of proclamation of the results of the election64. Under the Comelec Rules of Procedure, a petition to correct manifest errors must be filed within 5 days after proclamation. In the interest of justice, this rule may be suspended by the Comelec65. Since the Comelec may motu propio correct manifest errors, a Board of Canvassers can file a petition for correction before the Comelec66. An answer with counter-petition for correction of manifest errors is allowed67.

7. It is possible that a candidate receivers zero votes in one or two precincts. This fact
alone cannot support the contention that the election return contains statistically improbable results68. This is also true when only one candidate obtained all the votes in some precincts69.

8. Formal defects70, duress71, intimidation72, absence of required number of padlocks

containing the election returns prior to actual canvassing73, and lack of inner paper seals in several envelopes74 are not grounds for excluding an election return. The enumerations of pre-proclamation grounds under Section 243 of the Omnibus Election Code is exclusive75. Erasures that are actually mere corrections to reflect the actual number of votes garnered do not justify exclusion of the certificate of canvass76.

9. A public school teacher cannot substitute for a district school supervisor since under
Republic Act No. 6646, the school principal is the proper substitute. The improper substitution leads to the nullification of the proclamation due to illegal composition of the board of canvassers77.

61 62

Angelia v. COMELEC, 332 SCRA 757 Sandoval v. COMELEC, 323 SCRA 403 63 Badiri v. COMELEC, G.R. No. 165677, June 8,2005 64 Trinidad v. COMELEC, G.R. No. 134657, December 15,1999 65 Barot v. COMELEC, 404 SCRA 352; Milla v. Balmores-Laxa, 406 SCRA 679; Dela Llana v. COMELEC, G.R. No. 152080, November 28,2003 66 Barot v. COMELEC, 404 SCRA 352 67 Trinidad v. COMELEC, G.R. No. 134657, December 15, 1999 68 Velayo v. COMELEC, 327 SCRA 713 69 Ocampo v. COMELEC, 326 SCRA 636 70 Ocampo v. COMELEC, 326 SCRA 636 71 Sebastian v. COMELEC, 327 SCRA 406 72 Chu v. COMELEC, G.R. No. 135423, November 29,1999 73 Navarro v. COMELEC, G.R. No. 150799, February 3,2003 74 Bandala v. COMELEC, 424 SCRA 267 [2004] 75 Navarro v. COMELEC, G.R. No. 150799, February 3,2003 76 Saranggani v. COMELEC, G.R. No.155560, November 11,2003 77 Salic v. COMELEC, 425 SCRA 735 [2004]

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10. Objection of an election return cannot be made after the same has been canvassed78.
Any objection must be reduced in writing and evidence must be presented within 24 hours, otherwise the objection will be summarily dismissed79.

11. A recount is in order where a discrepancy exists between the votes written in words
or in figures80. The Comelec after ascertaining the integrity of the ballot box and of the ballots, can order a recount if the integrity of the ballot box is intact 81. After which, new election return should be prepared82. The use of the election return inside the ballot box or a recount, the procedure laid down in Section 235 of the Omnibus Election Code, may also apply to returns whose pages bear dissimilar numbers since such returns also appear to be unauthentic83.

12. An order setting aside a proclamation must be rendered after prior notice and hearing.
Due process requirements must be observed before the Comelec rules on the petition84. Outright exclusion of an election return is not proper85.

13. Only the Comelec, not the regular courts has the authority to annul a proclamation86.
A case incorrectly denominated as a petition for quo warranto when in fact it questions the legality and prematurity of the proclamation is in effect an action to annul a proclamation and the same does not constituted abandonment of a preproclamation case earlier filed87.

14. The dismissal of a pre-proclamation case improperly filed before the Comelec is
without prejudice to the filing of a regular election protest before the proper tribunal, the period for the filing of which is deemed suspended by the filing of the aforementioned case88. K. Election Contests Jurisdiction Over Election Contests: A. Original and Exclusive 1. Pres/Vice Pres Supreme Court as Presidential Electoral Tribunal 2. Senator Senate Electoral Tribunal 3. Congressman HRET 4. Regional/Provincial/ City Officials COMELEC 5. Municipal Officials RTC 6. Barangay Officials MTC B. Appellate
78 79

Siquian v. COMELEC, G.R. No.135627, December 20,1999 Cordero v. COMELEC, G.R. No. 134826, July 6,1999 80 Olandriz v. COMELEC, G.R. No. 135084, August 25,1999 81 Lee v. COMELEC , 405 SCRA 363; Dagloc v. COMELEC, G. R. No. 154442, December 10,2003 82 Dagloc v. COMELEC, G.R. No. 154442, December 10,2003 83 Salic v. COMELEC, 425 SCRA 735 [2004] 84 Sandoval v. COMELEC, 323 SCRA 403 85 Dagloc v. COMELEC, G.R. No. 86 Gustilo v. Real, 353 SCRA 1 87 Dumayas v. COMELEC, G.R. No. 141952, April 20,2001 88 Lucman v. COMELEC, G.R. No. 166229, June 29,2005

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1. From decisions of the RTC and MTC, appeal shall be exclusively made to the COMELEC, whose decision shall be final, executory and unappealable 2. From the decisions of the COMELEC, appeal shall be made to the Supreme Court via Petition for Review on Certiorari under Rule 64 and 65 of the Rules of Court 3. From decisions of the Electoral Tribunals, appeal shall be made to the Supreme Court via Petition for Review on the ground of grave abuse of discretion amounting to lack or excess of discretion Post Election Disputes: 1. Election protests are those which pertain to the casting and counting of votes and raise questions as to who actually received the majority of the legal votes. 2. Quo Warranto is that which pertain to the eligibility or disloyalty of the winning candidates 3. Criminal Prosecution for violation of an election offense will disqualify a winning candidate from holding office. Election Protest 1. EP more than seeks to oust the winner It is strictly a contest between the winning candidate and the defeated candidate 2. EP can only be filed by a candidate who has duly filed a certificate of candidacy to the same office and has been voted for 3. It is based on grounds of election fraud and irregularities in the counting and casting of votes or in the preparation of the returns. 4. Protestee may be ousted and the protestant may be seated in the office vacated Quo Warranto 1. It is NOT strictly speaking a contest. It is a proceeding to unseat the ineligible person from office. 2. It can be filed by any voter.

3. Based on disloyalty or ineligibility of the winning candidate.

4. Respondent may be unseated but the petitioner may not be seated.

Requisites for election protest: 1. Must be filed by a candidate who has filed a certificate of candidacy and has been voted upon for the same office. 2. On grounds of fraud, terrorism, irregularities or illegal acts committed before, during or after the casting and counting of votes 3. Must be filed within 10 days from proclamation Requisites for election protest: 1. Filed by any registered voter 2. On grounds of eligibility or disloyalty to the Philippines 3. Must be filed within 10 days from proclamation

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Rules on Election Protests89

1. Compared to Pre-Proclamation Cases. In a regular election protest, the parties may

litigate all the legal and factual issues raised by them inasmuch detail as they may deem necessary or appropriate. Issues such as fraud or terrorism attendant to the election process, the resolution of which would compel or necessitate the Comelec to pierce the veil of election returns which appear to be prima facie regular, on their face, are proper for election protests, not pre-proclamation cases. Proceedings in a pre-proclamation controversy are summary in nature. Reception of evidence aliunde, such as the List of Voters with Voting Record is proscribed90.

2. Real Property in Interest. Only real parties in interest can file and pursue election
protests. A real party in interest is the party who would be benefited or injured by the judgment and the party who is entitle to the avails of the suit. Thus, a vice-mayor can substitute for the protestant where the latter dies during the pendency of the protest. However substitution by the widow or heirs in election contest cannot be allowed considering a public office is personal to the public officer and not a property transmissible to the heirs upon death. Nobility of intention is not the poi8nt of reference in determining whether a person may intervene in an election protest. In the case of presidential protest cases, only two persons the 2nd and 3rd placers may contest the election91.

3. Best Evidence. The ballots are the best and most conclusive evidence in an election
contest where the correctness of the number of votes of each candidate in involved 92. However, there is no need to resort to revision when the protestant concedes the correctness of the ballot results correctness of the ballot results, concerning the number of votes obtained by both protestant and protestee, and reflected in the election returns. The constitutional function as well as the power and duty to be the sole judge of all contests relating to the election returns and qualification of the President and Vice-President is expressly vested in the Presidential Electoral Tribunal and includes the duty to correct manifest errors in the Statement of Votes and Certificates of Canvass93.

4. Docket Fees. Payment of the Comelec Filing fee94 is jurisdictional and mandatory95.
Non-payment, partial or incompletes garment of filing/ docket fees for election protests is a fatal defect. In which case, the election protest should be dismissed 96. The filing fee must be paid within the 10-day period. This defect cannot be cured by subsequent payment97. In the same way, a petition for quo warranto may be dismissed by the House
89 90

Lifted from Atty. Alberto Agras election law handouts. Lucman v. COMELEC, G.R. No. 166229, June 29,2005 91 Poe v. Macapagal Arroyo, PET Case No. 003, March 29,2005 92 Batul v. Bayron, 424 SCRA 26 [2004] 93 Legarda v. De Castro, PET Case No. 003, March 31,2005 94 Section 9, Rules 35, 1993 Comelec Rules of Procedure 95 Melendrez v. COMELEC G.R. No. 129998, November 25,1999; Gatchalian v. Court Of Appeals et.al., G.R. No. 107979, June 19,1995 96 Soller v. COMELEC, G.R. No. 139853, September 5,2000 97 Melendres v. COMELEC, G.R. No. 129998, November 25, 1999; Roquero v. COMELEC, G.R. No. 128165,April 25, 1998

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of Representatives Electoral Tribunal if the required cash deposit is not paid 98. However if protestee did not raise the issue during the trial of the election protestee and where he/she even filed a counter-protest, protestee is precluded from questioning the incomplete payment of the filing fee. Estoppel has set in99. As far as cash deposits in presidential protests cases are concerned, the same is reckoned on the basis of the basis of the number of precincts protested, not the number of ballots boxes containing the election returns100.

5. Complete Verification. An election protest which is not verified, lack proper verified,
lacks proper verification or contains a verification which is incomplete (e.g. protestant failed to state that the contents of the election protest are true and correct of his/her personal knowledge must be dismissed101.

6. Certificate of Non-Forum Shopping. Election protests should contain a certificate of nonforum shopping102. This requirement under Administrative Circular No. 04-94 is mandatory. Subsequent compliance does not excuse the partys failure to comply therewith103. However, when there is a false certification but there is no actual forum shopping, the election protest should not be dismissed104.

7. Period to File. The filing of a petition to declare a failure of election which is not a preproclamation case does not suspend the running of the reglementary period within which to file an election protest105.

8. Answer, Motion to Dismiss and Demurrer to Evidence. An answer with counter-protest

must be filed within the 5-day period to answer106. A motion to dismiss may be filed in election protests filed with the regular courts. 107A motion to conduct a preliminary hearing on the affirmative defenses may be contained in the answer108. A demurrer to evidence is considered an implied waiver by the protestee of the right to present evidence whatever may be the ruling in the first instance.109

9. Revision as a Matter of Course. The mere filing of an election protest calls for the
opening and revision of ballots and re-appreciation of votes. There is no need for the protestant to present evidence and substantiate his/her claim of election fraud before revision could take place110. Revision must be conducted in all the protested precinct111. Photocopying of ballots may be allowed112. An election protest is not defective when
98 99

Garcia v. House of Representatives Electoral Tribunal, G.R. No. 134792, August 12,1999 Navarosa v. COMELEC, 411 SCRA 369 100 Legarda v. De Castro, PET No. 003, May 10,2005 101 Soller v. COMELEC, G.R. No. 139853, September 5,2000 102 Soller v. COMELEC, G.R. No. 139853, September 5,2000 103 Batoy v. Calibo, G.R. No. 126833, February 17,2003 104 Barroso v. Ampig, 328 SCRA 530 105 Dagloc v. COMELEC, G.R. No. 138969, December 17, 1999 106 Baltazar v. COMELEC, 350 SCRA 518 107 Melendrez V. COMELEC, G.R.No. 129958, November 28,1999 108 Maruhom v. COMELEC, 331 SCRA 473 109 Gementiza v. COMELEC, 353 SCRA 424 110 Miguel v. COMELEC, G.R.No. 136966, July 5,2000 111 Jaucian v. Espina, A.M. No. RTJ-01-1641m Nat 9,21002 112 Alberto v. COMELEC, G.R.No. 132242, July 27, 1999

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protestant contest all the precincts even if he/she did not specify the precincts involved in the protest113.

10. Technical Examination. The Comelec can order the conduct of a technical examination of
the thumbprints of voter when thumbprints of voters in the computerized list of voters were not identical with those in registration records of voters114. The House of Representatives Electoral Tribunal may refuse the request for technical examination when the claims of the parties can be resolved without the need for technical examination and when election documents pertaining to the precincts in one municipality were gutted by fire115.

11. Election Returns as Basis of Results. When authentic ballots have been replaced by fake
ones, the physical count of votes in the precincts as determined during the revision of the ballots cannot be considered the correct number of votes cast. The election returns shall be basis of the votes.116

12. Jurisdiction of Comelec En Banc. Question involving findings of fact (i.e. sufficiency of
evidence) made by a Comelec division is a proper subject of a motion for reconsideration with the Comelec en banc.117

13. Jurisdiction of the Comelec on Election Protest before Lower Courts. The Comelec has
jurisdiction over petitions for certiorari in election protests pending before inferior courts118. The Comelec, not the Regional Trial Courts has appellate jurisdiction over decisions of the Municipal Trial Court concerning election protest involving barangay officials119 and members of the Sangguniang barangay officials and members of the Sangguniang Kabataan120. The appeal must be filed within the 5-day period (not 10 days) from receipt of the decision121. The Supreme Court can review decisions of the Comelec on appeal in election protests involving barangay officials122.

14. Appeal Fee. The payment of the full amount of the appeal/docket fee is an indispensable
step for the perfection of an appeal123. An appeal should be dismissed if the amount paid for the appellate docket fee is deficient.124

15. Execution Pending Appeal When Proper. While present election laws are silent on the
remedy of execution pending appeal in election contests, there is no case law holding that such remedy is exclusive to election contests involving elective barangay and municipal officials. Section 2, Rule 39 of the Rules of Court allowing execution pending appeal in the discretion of the court applies in a suppletory manner to election cases, including
113 114

Saquitayan v. COMELEC, G.R.No. 157249, November 28,2003 Mohammad v. COMELEC, G.R.No 136384, December 8,1999 115 Dimaporo v. House of Representatives Electoral Tribunal, 426 SCRA 226 [2004] 116 Torres v. House of Representatives Electoral Tribunal, 351 SCRA 312 117 Columbres v. COMELEC, G.R.No. 142038, September 18, 2000 118 Besso v. Aballe, 326 SCRA 100; Antonio v, COMELEC, G.R.No 135869, September 22,1999 119 Batoy v. Calibo, G.R. No.126833, February 17,2003, Antonio v. COMELEC, G.R.No.135869, 22 September 1999 120 Marquez v. COMELEC, G.R.No 127318, August 25,1999 121 Antonio v. COMELEC, G.R.No 135869, September 22,1999 122 Alvarez v. COMELEC, 353 SCRA 434 123 Villota v. COMELEC, G.R.No 146724, August 10,2001 124 Zamora v. COMELEC, 442 SCRA 397 [2004]

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those involving city and provincial officials125. The following constitute good reasons to allow execution pending appeal and a combination of two or more of them will suffice to allow execution pending appeal: [a] public interest involved or will of the electorate; [b] the shortness of the remaining portion of the term of the contested office; and [c] the length of time that the election contest has been pending. Shortness of the remaining period alone is a ground for execution pending appeal. This is the case where a decision of the trial court was rendered after almost one year of trial126 or more than 1/3rd or the term of the mayor had lapsed127. However, in one case, one ground alone will not suffice128.

16. Second Placer. When a winner is declared ineligible, the candidate who finished second
cannot assume the position129. In the case of mayor being disqualified, the vice-mayor succeeds by operation of law130.

17. Abandonment. A protestant who runs for another office is deemed to have abandoned
his/her protest131. The inaction and lack of interest of the protestant to prosecute the election protest can lead to the dismissal of the protest before the House of Representatives Electoral Tribunal.132 When EP may or may not become academic: RULE: the expiration of the term of office of the elective official whose election is questioned in pending EP renders the EP moot and academic and the pending case or appeal is dismissible on such ground. HOWEVER, a decision on the merits will have practical value of either sustaining the monetary award for damages or relieving the party concerned from having to pay damages, in which case the court may have to resolve its merits. Acceptance of a temporary appointment by a protestant in a government office does NOT operate as abandonment of EP. Acceptance of a permanent appointment by a protestant in a government office operates as abandonment of EP. Supreme Court in Santiago vs. Ramos stated that the election and assumption of office of Santiago as senator constituted as an abandonment of her EP for presidency. L. Election Offenses Some Prohibited Acts
125 126

Balajonda v. COMELEC, G.R.No. 166032, February 28,2005; Batul v. Bayron, 424 SCRA 26 [2004] Balajonda v. COMELEC, G.R.No 166032, February 28,2005; Santos v. COMELEC, G.R.No. 155618, March 26,.2003; Alvarez v. COMELEC, 353 SCRA 434 127 Navarosa v. COMELEC, 411 SCRA 369 128 Fermo v. COMELEC, 328 SCRA 52 129 Gayo v. Verceles, G.R. No. 150477, February 28,2005; Idulza v. COMELEC, 427 SCRA 701 [2004]; Ocampo v. House of Representatives Electoral Tribunal, 432 SCRA 144 [2004]; Albana v. COMELEC, G.R.No, 435 SCRA 98 [2004]; Latasa v. COMELEC, G.R.No. 154829, December 10,2003; Codilla v. De Venecia, G.R. No. 150605, December 10,2002; Recabo v. COMELEC, G.R.No134293, June 26,1999; Domino v. COMELEC, G.R.No. 174015, July 19, 1999;Loreto v. Brion, G.R.No. 130681, July 29,1999 130 Kare v. COMELEC, 428 SCRA 264 [2004] 131 Idulza v. COMELEC, 427 SCRA 701 [2004] 132 Hofer v. House of Representatives Electoral Tribunal, 428 SCRA 383 [2004]

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1. Vote-buying and vote-selling.

2. Wagering upon the result of the election

3. Carrying of a deadly weapon within a radius of 100 meters from the polling place. It is
not necessary that the deadly weapon be seized from the accused while he was in the precint or within a radius of 100 meters therefrom; it is enough that the accused carried a deadly weapon within the prohibited radius during any of the days and hours specified in the law.133

4. Reassignment of personnel within the election period without the prior approval of the
Comelec since this amounts to a transfer which is a prohibited activity134.

5. Unauthorized alterations of statement of votes by members of board of canvassers.135 6. Failure on the part of the chairperson of Board of Election Inspectors to deliver the ballot
boxes to the local treasurer upon termination of the counting136. On the other hand, the Supreme Court found that these are not election offenses:

1. Preventing supporters of candidates from entering the provincial capitol to attend the
canvassing since Republic Act No. 6646 does not punish the alleged violation as a criminal offense137.

2. Presence of police officers in room where the election returns were being canvassed since
Republic Act No. 6646 does not punish the alleged act as a criminal offense138. Jurisdiction , Authority and Prosecution

133 134

The Comelec shall have the exclusive power to conduct preliminary investigation of all election offenses punishable under the Omnibus Election Code.139 Complaints can also be filed with government prosecutors who continue to serve as deputies of the Comelec140. In the absence of revocation, the deputation subsists 141. The prosecutors are subject to the control and supervision of the Comelec. The resolution by the prosecutor is appealable to the Comelec while the resolution of the Comelec en banc may be subject of a motion for reconsideration142. The filing of a motion for reconsideration is a prerequisite to the filing of a petition for certiorari with the Supreme Court143.

Mapala vs. Judge Nunez, 240 SCRA 600. Regalado v. Court of Appeals, 325 SCRA 516 135 Domalanta v. COMELEC, 334 SCRA 555 136 Herrera v. Court of Appeals, G.R. No. 14651 February 19,2002 137 Malinias v. COMELEC, G.R.No. 146943, October4,2002 138 Malinias v. COMELEC, G.R.No. 146943, Ocober 4,2002 139 Section 265, Omnibus Election Code 140 Section 2, Rule 34, Comelec Rules of Procedure 141 Margarejo v. Escoses, G.R. No. 1372520, September 13,2001 142 Faelnar v. People, 331 SCRA 429 [2000] 143 Bernardo v. Abalos, Sr., G.R. No. 137266, December 5,2001

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The power to try and decide any election offense rests with the regional trial courts144. Participation and involvement of respondent in the commission of election offense must be established145. There is no requirement that only the Comelec may refer a complaint to its law department for investigation146. Finding probable cause in the prosecution of election offenses rests in the Comelecs sound discretion147. This is exclusive power of the Comelec148. Prosecutors are given continuing authority as deputies to conduct preliminary investigations and to prosecute them. The authority may be revoked anytime by the Comelec as when the Comelec nullified the resolution of the prosecutor149. Election offenses prescribe after 5 years from dater of their commission. Period is interrupted by the filing of the complaint even if it merely for purposes of preliminary investigation150. The prosecution of election law violators involves the exercise of the Comelecs administrative powers. Thus, the Comelec en banc can directly approve the recommendation of its Law Department to file the criminal information. There is no constitutional requirement that the same must be first decided by any of the divisions of the Comelec151. It is the Regional Trial Court which has jurisdiction over election offenses152. The Court cannot conduct preliminary investigation. 153 Perjury cases committed in relation to an election offense must be filed where the case for violation of the Omnibus Election Code is pending and not in manila (unless case is pending in Manila) where the seat of the Law Department is located.154 the grant of immunity from criminal liability in favor of the party whose vote was bought under section 28 of Republic Act no. 6646 is constitutional and is an effective way of preventing the commission of vote-buying. Witnesses in vote-buying cases are exempt from prosecution for vote-selling155.

144 145

Section 268, Omnibus Election Code Domingo v. COMELEC, G.R.No. 136587, August 30,1999 146 Laurel v. Presiding Judge, Regional Trial Court Manila, 323 SCRA 778 147 Baytan v. COMELEC, G.R.No. 153945, February 4,2003 148 COMELEC v. Tagle, G.R. No. 148948 and 148951-60, February 17,2003 149 COMELEC v. Tagle, 397 SCRA 618 150 Baytan v. COMELEC, G.R. No. 153945, February 4,2003 151 Baytan v. COMELEC, G.R. No. 153945, February 4,2003 152 Juan v. People 322 SCRA 125 153 Pena v. Martizano, 403 SCRA 281 154 Villarosa v. Magallanes, G.R. No. 139841, April 29,2003 155 COMELEC v. Tagle, G.R. No. 148948 and 148951-60, February 17,2003.

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