March 24, 2017 | Author: Carlo Barangtay | Category: N/A
Download 2016 Election Laws by ASP Ryan Rey S. Quilala...
JURISTS BAR REVIEW IN ELECTION LAWS [2016 Bar Exams]
I listen and I forget.
I see and I remember.
I do and I understand!
Overview of the Philippine Electoral System (AES) Registration of Voters (R.A. 8189) Rules on Candidacy Campaign (R.A. 9006) Casting (R.A. 9369) E-Counting + E-Transmission + E-Consolidation, E-Canvassing, and
Proclamation Pre-Proclamation Controversies Election Contests (E.P. or Q.W.) Prosecution of Election Offenses 3
Flowchart of the Philippine Election Laws
Powers and Functions of the COMELEC
VOTERS
REGISTRATION
(next slide)
Rules on CAMPAIGN
Rules on CANDIDACY
Flowchart
CASTING
COUNTING
CANVASSING
Pre-Proclamation Controversy
ELECTION OFFENSES
ELECTION CONTESTS
PROCLAMATION
PRELIMINARY MATTERS SUFFRAGE - right to vote in election of officers chosen by people and in the determination of questions submitted to people. ELECTION - embodiment of the popular will, the expression of the sovereign power of the people. 1. Regular election – refers to an election participated in by those who possess the right of suffrage and not disqualified by law and who are registered voters 2. Special election – when 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.
SUFFRAGE Suffrage may also be exercised by qualified Filipinos abroad. (Article V, Section 2, 1987 Constitution; Sec. 4, R.A. 9189 “Overseas Absentee Voting Act of 2003”)
Section 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. (Article V [1st paragraph], 1987 Constitution) Sec. 4. Coverage. – 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. (R.A. 9189)
Plebiscite - electoral process by which an initiative on the Constitution is approved or rejected by the people Initiative - power of the people to propose amendments to the Constitution or to propose and enact legislations through election called for the purpose. Referendum - power of the electorate to approve or reject a piece of legislation through an election called for the purpose Recall – mode of removal of an elective public officer by the people before the end of his term of office
2012 Bar Exams MCQ 3. The constitutional provision on initiative and referendum is not self-executing. This is so because it requires: a.) an implementing resolution from the COMELEC; b.) an implementing resolution from the Supreme Court; c.) an implementing legislation; d.) an implementing resolution from the party-list representatives of the House of Representatives.
Flowchart of the Philippine Electoral System
Powers and Functions of the COMELEC
(next slide)
VOTERS
REGISTRATION
Rules on CAMPAIGN
Rules on CANDIDACY
IMPORTANT POWERS and FUNCTIONS of the COMMISSION ON ELECTIONS (COMELEC)
Art. IX-C, Sec. 2, 1987 Constitution + Sec. 52, OEC + E.O. 292 1. Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. 2. Exercise - exclusive original jurisdiction all contests relating to the elections, returns, and qualifications of all elective provincial, city officials; - appellate jurisdiction over all contests involving: Elective municipal officials decided by the trial courts of general jurisdiction Elective barangay officials decided buy the trial courts of limited jurisdiction Decisions, final orders, or rulings of the COMELEC on election contests involving elective municipal and barangay offices shall be final and executory, and not appealable.
3. Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places appointment of election officials and inspectors, and registration of voters. 4. Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the government, including the AFP for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections. 5. Registration of political parties, organization, or coalition/accreditation of citizens’ arms of the COMELEC.
6. File, upon a verified complaint, or on its own initiative, petitions in court for the inclusion or exclusion of voters, investigate and where appropriate, prosecute cases for violations of election laws, including acts or omissions constituting election frauds, offenses and malpractices. 7. Recommend to Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies.
8. Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to it. 9. Submit to the President and Congress a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall.
10. Exercise supervision and control over officials required to perform duties relative to the conduct of election 11.
Promulgate rules and regulations
12.
Summon parties to a controversy pending before it.
13.
Punish contempt
Can the COMELEC change the schedules or periods prescribed by law for pre-election activities?
FIXING OF DATES “Sec. 29. Designation of Other Dates for certain Pre-election Acts. - If it should no longer be reasonably possible to observe the periods and dates prescribed by law for certain pre-election acts, the Commission shall fix other periods and dates in order to ensure accomplishment of the activities so voters shall not be deprived of their right of suffrage.” (R.A. 6646)
EN BANC and DIVISION CASES “Section 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. (Article IX-C, 1987 Constitution)
EN BANC and DIVISION CASES Only decisions of the COMELEC en banc may be brought to the Supreme Court on certiorari (as a special civil action under Rule 65 of the Rules of Court).
Only decisions of the COMELEC made in the exercise of its quasi-judicial power, not administrative power, may be brought to the Supreme Court on certiorari.
EN BANC and DIVISION CASES
Under the Constitution, the power of the Supreme Court to review election cases falling within the original exclusive jurisdiction of the COMELEC only extends to final decisions or resolutions of the COMELEC en banc, not to interlocutory orders issued by a Division thereof. (Sahali, et.al. v. COMELEC, et.al., G.R. No. 201796, 15 January 2013)
2011 BAR EXAM
14. The COMELEC en banc cannot hear and decide a case at first instance EXCEPT when: A. a Division refers the case to it for direct action. B. the case involves a purely administrative matter. C. the inhibition of all the members of a Division is sought. D. a related case is pending before the Supreme Court en banc.
If COMELEC en banc is EQUALLY Divided
1. 2. • • •
Reheard. If no decision is reached: DISMISSED (If Original) AFFIRMED (If Appealed case) DENIED (If Incidental matters)
[Sec. 6, RULE 18, COMELEC Rules of Procedure)
2011 BAR EXAM
60. The COMELEC en banc shall decide a motion for reconsideration of: A. the House or Representatives and the Senate electoral tribunals. B. the decision of the election registrar. C. the decision of the COMELEC division involving an election protest. D. its own decision involving an election protest.
Flowchart of the Philippine Electoral System
Powers and Functions of the COMELEC
VOTERS
(next slide)
Rules on CAMPAIGN
REGISTRATION
Rules on CANDIDACY
VOTERS
Qualifications (Sections 116 & 117 OEC REPEALED)
1. Filipino citizen 2. At least 18 years old on election day 3. Resident of the Philippines for at least one year immediately before the election
VOTERS
Qualifications (Sections 116 & 117 OEC REPEALED)
4. Resident of the city or municipality where he proposes to vote at least 6 months immediately before the election (Sec. 9, Republic Act No. 8189) Any person who temporarily resides, in another place by reason of his employment, educational activities, or detention does not lose his original residence. (Sec. 9, Republic Act No. 8189) 5. Not otherwise disqualified by law. (Sec. 9, Republic Act No. 8189)
Disqualification (Sec. 118 OEC REPEALED) Section 11. Disqualification. The following shall be disqualified from registering: a) Any person who has been sentenced by final judgment to suffer imprisonment of not less than one (1) year, such disability not having been removed by plenary pardon or amnesty: Provided, however, That any person disqualified to vote under this paragraph shall automatically reacquire the right to vote upon expiration of five (5) years after service of sentence;
Disqualification (Sec. 118 OEC REPEALED) Section 11. Disqualification. b) Any person who has been adjudged by final judgment by a competent court or tribunal of having committed any crime involving disloyalty to the duly constituted government such as rebellion, sedition, violation of the firearms laws or any crime against national security, unless restored to his full civil and political rights in accordance with law: Provided, That he shall automatically reacquire the right to vote upon expiration of five (5) years after service of sentence; and c) Insane or incompetent persons declared as such by competent authority unless subsequently declared by proper authority that such person is no longer insane or incompetent. (RA 8189)
Disqualification
May an accused in detention be allowed to vote?
DETAINEE VOTING RESOLUTION No. 9371 SECTION 1. Who are Entitled to Avail of Detainee Voting Detainee voting (either through the special polling place inside jails or escorted voting) may be availed of by any registered detainee whose registration record is not transferred / deactivated / cancelled / deleted. SECTION 2. Definition of Terms - As used in this Resolution, the following terms shall mean: Detainee – Refers to any person: (1) confined in jail, formally charged for any crime/s and awaiting/undergoing trial; or (2) serving a sentence of imprisonment for less than one (1) year; or (3) whose conviction of a crime involving disloyalty to the duly constituted government such as rebellion, sedition, violation of the firearms laws or any crime against national security or for any other crime is on appeal;
Suffrage may also be exercised by qualified Filipinos abroad. (Article V, Section 2, 1987 Constitution; Sec. 4, R.A. 9189 “Overseas Absentee Voting Act of 2003”) Section 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. (Article V [1st paragraph], 1987 Constitution) Sec. 4. Coverage. – 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. (R.A. 9189)
Nicolas-Lewis, et. al. vs. COMELEC G.R. No. 162759, 04 August 2006 As may be noted, there is no provision in the dual citizenship law - R.A. 9225 - requiring "duals" to actually establish residence and physically stay in the Philippines first before they can exercise their right to vote. On the contrary, R.A. 9225, in implicit acknowledgment that "duals" are most likely non-residents, grants under its Section 5(1) the same right of suffrage as that granted an absentee voter under R.A. 9189. It cannot be overemphasized that R.A. 9189 aims, in essence, to enfranchise as much as possible all overseas Filipinos who, save for the residency requirements exacted of an ordinary voter under ordinary conditions, are qualified to vote.
2012 Bar Exams 13. Margarita was born in 1986 to a Filipino mother and a Swedish father. She has been living and continues to live in the US for the last 20 years and has also been naturalized as a US citizen. She recently reacquired Philippine citizenship under RA 9225, the Citizenship Retention and Reacquisition Act of 2003. Can Margarita vote in the next national elections?
2012 Bar Exams a) Yes. Dual citizens who are not residents may register under the Overseas Absentee* Voting Law. b) Yes. Margarita is a Filipino citizen and thus may enjoy the right to suffrage like everyone else without registering as an overseas absentee voter. c) No. Margarita fails the residency requirement under Section 1, Article V of the Constitution for Filipinos. d) No. Dual citizens upon renunciation of their Filipino citizenship and acquisition of foreign citizenship, have practically and legally abandoned their domicile and severed their legal ties to their homeland as a consequence.
Flowchart of the Philippine Electoral System
Powers and Functions of the COMELEC
(next slide)
VOTERS
Rules on CAMPAIGN
REGISTRATION
Rules on CANDIDACY
REGISTRATION The new system ushered in a system of ‘continuing’ registration of voters whereby “application for registration of voters shall be conducted daily in the office of the Election Officer during regular office hours” and “all applications for registration shall be heard and processed on a quarterly basis (Section 8, R.A. 8189)
#Registration Ban
No registration shall be conducted during the period starting 120 days before a regular election and 90 days before a special election. No special registration can be conducted by the Commission on Elections within said periods. (Section 8, Republic Act No. 8189; AkbayanYouth v. Commission on Elections, G.R. No. 147066, March 26, 2001)
REGISTRATION BAN
The clear import of the Court’s pronouncement in Akbayan-Youth is that had the therein petitioners filed their petition – and sought an extension date that was – before the 120-day prohibitive period, their prayer would have been granted pursuant to the mandate of RA 8189. In the present case, as reflected earlier, both the dates of filing of the petition (October 30, 2009) and the extension sought (until January 9, 2010) are prior to the 120-day prohibitive period. The Court, therefore, finds no legal impediment to the extension prayed for (Kabataan Party-list, et. al. vs. COMELEC, G.R. No. 189868, 15 December 2009).
DOUBLE REGISTRANTS In all cases where registrants are found to be registered in two (2) or more districts/cities/municipalities, the latest registration shall prevail which is deemed to be more in consonance with the intent of the concerned registered voters. Accordingly, they shall be allowed to vote only in the district/city/municipality of their latest registration.
This is distinguished from the policy on double/multiple registrants found within the same district/city/municipality where their original registration shall prevail over subsequent registrations.
DOUBLE REGISTRANTS ELECTION OFFENSE (Section 261 (y [5]), of the OEC):
Section 261. Prohibited Acts. - The following shall be guilty of an election offense: xxx xxx xxx (y) On Registration of Voters: xxx xxx xxx (5) Any person who, being a registered voter, registers anew without filing an application for cancellation of his previous registration.
INCLUSION/EXCLUSION Proceedings
Petitions for Inclusion and Exclusions may be filed with the Municipal/ Metropolitan Trial Courts. Appeal to Regional Trial Court within 5 days from receipt of notice. = immediately final and executory + no motion for reconsideration.
INCLUSION/EXCLUSION Proceedings
A petition for inclusion may only be filed by a person whose application had been: 1.) stricken out from the list of voters or 2.) whose application for registration was disapproved.
INCLUSION/EXCLUSION Proceedings
Exclusion: may be filed by 1.) any registered voter, 2.) representative of political party or 3.) the Election Officer (Sections 34-35, Republic Act No. 8189) + 4.) COMELEC (Sec 2 (6), Art. IX-C, 1987 Constitution)
INCLUSION Proceedings “Section 34. (R.A. 8189) Petition for Inclusion of Voters in the List. Any person whose application for registration has been disapproved by the Board or whose name has been stricken out from the list may file with the court a petition to include his name in the permanent list of voters in his precinct at any time except one hundred
five (105) days prior to a regular election or seventy-five (75) days prior to a special election. xxx xxxx xxxx xxxx
EXCLUSION Proceedings Section 35. (R.A. 8189) Petition for Exclusion of Voters from the List. Any registered voters, representative of a political party or the Election Officer, may file with the court a sworn petition for the exclusion of a voter from the permanent list of voters giving the name, address and the precinct of the challenged voter at any time except one hundred (100) days prior to a regular election or sixty-five (65) days before a special election. xxx xxxx
xxxx
xxxx
2011 BAR EXAM
22. The decision of the Regional Trial Court on appeals pertaining to inclusions or exclusions from the list of voters A. is inappealable. B. is subject to an action for annulment. C. may be brought straight to the Supreme Court. D. is appealable to the Commission on Elections.
2001 BAR, Question No. II Q: Let us suppose that Congress enacted a law which amended B.P. 881 (particularly Sections 138, 139, 142, 143) by vesting in the COMELEC the jurisdiction over inclusion and exclusion cases filed by voters, instead of the courts (MTC, then RTC). Is the law valid or not, and why?
R.A. 8189
Section 27. Deactivation of Registration*. Section 28. Reactivation of Registration. Section 29. Cancellation of Registration.
R.A. 8189
Sec. 27. Deactivation of Registration. a) Any person who has been sentenced by final judgment to suffer imprisonment for not less than one (1) year*; b) Any person who has been adjudged by final judgment by a competent court or tribunal of having caused/committed any crime involving disloyalty to the duly constituted government such as rebellion, sedition, violation of the antisubversion and firearms laws, or any crime against national security*; c) Any person declared by competent authority to be insane or incompetent;
R.A. 8189
Sec. 27. Deactivation of Registration. d) Any person who did not vote in the two (2) successive preceding regular elections as shown by their voting records. e) Any person whose registration has been ordered excluded by the Court; and f) Any person who has lost his Filipino citizenship. g) No Biometrics Registration (RA 10367)
LATEST LAW Mandatory Biometrics Registration (RA 10367)
Requires all registered voters whose biometrics had not been captured to submit themselves for validation starting 01 July 2013. (Sections 3 & 5) Voters who fail to summit for validation on or before the last day of the filing of applications for registration for purposes of the 2016 national and local elections, despite due notice, shall be deactivated from the Registration Record of voters by the Election Registration Board (ERB) concerned. (Sections 6 & 7)
NO BIO. NO BOTO.
Kabataan Party-list, et.al. vs COMELEC (G.R. 221318, 16 December 2015) The assailed regulation on the right to suffrage was sufficiently justified as it was indeed narrowly tailored to achieve the compelling state interest of establishing a clean, complete, permanent and updated list of voters, and demonstrably the least restrictive means in promoting that interest.
R.A. 8189
“Section 39. Annulment of Book of Voters. The Commission shall, upon verified petition of any voter or election officer or duly registered political party, and after notice and hearing, annul any book of voters that is not prepared in accordance with the provisions of this Act or was prepared through fraud, bribery, forgery, impersonation, intimidation, force or any similar irregularity, or which contains data that are statistically improbable. No order, ruling or decision annulling a book of voters shall be executed within ninety (90) days before an election.”
R.A. 8189
DOUBLE REGISTRANTS In all cases where registrants are found to be registered in two (2) or more districts/cities/municipalities, the latest registration shall prevail which is deemed to be more in consonance with the intent of the concerned registered voters. Accordingly, they shall be allowed to vote only in the district/city/municipality of their latest registration.
This is distinguished from the policy on double/multiple registrants found within the same district/city/municipality where their original registration shall prevail over subsequent registrations.
LATEST LAW Accessible Polling Places for Persons with Disabilities (PWDs) and Senior Citizens [RA 10366]
Republic Act No. 10366 provides for, among others, assistance in the accomplishment of registration forms and accessible polling places for persons with disabilities (PWDs) and senior citizens. The law was precisely in line with the objective of Section 29 of the “Magna Carta for Persons with Disability” (Republic Act No. 7277) which provides that "polling places should be made accessible to disabled persons during national and local elections."
ABSENTEE VOTING Domestic absentee voting, public officials temporarily stationed/assigned in places other than the place where he/ she is a registered voter of (e.g. police officers, military personnel, officers of the Commission on Elections, schoolteachers, among others), in the performance of his/her election duties, are allowed to vote in their place of work.
NEW ABSENTEE VOTING LAW ABSENTEE VOTING FOR MEMBERS OF MEDIA (R.A. 10380) Now allows media practitioners to vote on specified days earlier than Election Day so that even if on Election Day, they are assigned to cover election events away from their place of registration as voters, they would nonetheless have the opportunity to cast their votes.
ABSENTEE VOTING
ABSENTEE VOTING FOR MEMBERS OF MEDIA (RA 10380) Members of the media, media practitioners including their technical and support staff who are actively engaged in the pursuit of information gathering and reporting or distribution, in any manner or form, including, but not limited to the following: 1. Print Journalists; 2. Television Journalists; 3. Photo Journalists; 4. Online Journalists; 5. Radio Journalists; 6. Documentary makers; 7. Television/Radio Production;
Under Republic Act No. 9189 otherwise known as the Overseas Absentee Voting Act of 2003, Filipino citizens who are overseas Filipino workers and immigrants and permanent residents in other countries (provided that in the latter case, they file an affidavit that they will resume actual physical permanent residence within three (3) years from approval of registration) may vote in Philippine national elections when they are away from the country on the day of the elections. (Section 5d, Republic Act No. 9189)
O.A.V. Coverage All citizens of the Philippines abroad who are not disqualified by law, at least 18 years of age on election day, may vote for president, vice president, senators and party list representatives. (Sec. 4), Republic Act No. 9189.
O.A.V. Disqualifications a. Those who lost their Filipino citizenship. b. Those who expressly renounced their Philippine citizenship and pledged allegiance to a foreign country. c. Those convicted by final judgment of an offense punishable by imprisonment of at least one year, including those found guilty of disloyalty under Article 137 of the Revised Penal Code. d. An immigrant or permanent resident recognized as such in the host country, unless he executes an affidavit that he will resume actual physical permanent residence in the Philippines within 3 years of his registration. i. The affidavit shall also state that he has not applied for citizenship in another country ii. Failure to return shall be cause for removal of his name from the registry of absentee voters and his permanent disqualification to vote in absentia. (R.A. 10590 – OVERSEAS VOTING ACT) e. A citizen of the Philippines declared insane or incompetent by competent authority in the Philippines or abroad. (Sec. 5, R.A. 9189).
O.A.V. Residency As may be noted, there is no provision in the dual citizenship law - R.A. 9225 - requiring "duals" to actually establish residence and physically stay in the Philippines first before they can exercise their right to vote. On the contrary, R.A. 9225, in implicit acknowledgment that "duals" are most likely non-residents, grants under its Section 5(1) the same right of suffrage as that granted an absentee voter under R.A. 9189. It cannot be overemphasized that R.A. 9189 aims, in essence, to enfranchise as much as possible all overseas Filipinos who, save for the residency requirements exacted of an ordinary voter under ordinary conditions, are qualified to vote. (Nicolas-Lewis, et. al. vs. COMELEC, G.R. No. 162759, 04 August 2006)
O.V.A. No more affidavits binding Filipinos to return in 3 years under the OVA (R.A. 10590) Among the salient amendments to R.A. 9006 is the deletion of Section 5 (d) where an immigrant or a permanent resident must execute upon registration an affidavit prepared by the Commission on Elections declaring that he or she shall resume actual physical permanent residence in the Philippines not later than 3 years from approval of his or her registration. This section bears with it the threat of removal of the immigrant’s or permanent resident’s name from the National Registry of Absentee Voters if he or she indeed fails to return to the homeland within the three year period.
Political Parties
5. Registration of political parties, organization, or coalition and accreditation of citizens’ arms of the COMELEC. After sufficient publication Platform of government
Political Parties
RA 7941, “Party-list Act”: “b.) A political party refers to an organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates and supports certain of its leaders and members as candidates for public office.”
Registration of Political Parties The following political parties cannot be registered: 1. Religious sects 2. Those which seek to achieve their goals through unlawful means 3. Those which refuse to adhere to the Constitution 4. Those which are supported by any foreign government [Sec. 2(5), Article IX-C of 1987 Constitution]
Registration of Parties
MAGDALO PARA SA PAGBABAGO vs. COMMISSION ON ELECTIONS G.R. No. 190793, 19 June 2012,
Public knowledge of facts pertaining to employment of violence and unlawful means to achieve one’s goals is within the determination of the COMELEC, and such fact is sufficient to deny a party registration and accreditation. In view, however, of the subsequent amnesty granted in favor of the members of MAGDALO, the events that transpired during the Oakwood incident can no longer be interpreted as acts of violence in the context of the disqualifications from party registration.
Registration of Parties
ANG LADLAD LGBT PARTY , vs. COMMISSION ON ELECTIONS G.R. No. 190582 , 08 April 2010
As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify exclusion of homosexuals from participation in the party-list system. The denial of Ang Ladlad’s registration on purely moral grounds amounts more to a statement of dislike and disapproval of homosexuals, rather than a tool to further any substantial public interest. Respondent’s blanket justifications give rise to the inevitable conclusion that the COMELEC targets homosexuals themselves as a class, not because of any particular morally reprehensible act. It is this selective targeting that implicates our equal protection clause.
Registration of Parties
ATONG PAGLAUM , Inc. vs. COMMISSION ON ELECTIONS G.R. No. 203766
April 2, 2013
How then should we harmonize the broad policy declaration in Section 2 of R.A. No. 7941 with its specific implementing provisions, bearing in mind the applicable provisions of the 1987 Constitution on the matter?
The phrase "marginalized and underrepresented" should refer only to the sectors in Section 5 that are, by their nature, economically "marginalized and underrepresented." These sectors are: labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, overseas workers, and other similar sectors. For these sectors, a majority of the members of the sectoral party must belong to the "marginalized and underrepresented." The nominees of the sectoral party either must belong to the sector, or must have a track record of advocacy for the sector represented. Belonging to the "marginalized and underrepresented" sector does not mean one must "wallow in poverty, destitution or infirmity." It is sufficient that one, or his or her sector, is below the middle class. More specifically, the economically "marginalized and underrepresented" are those who fall in the low income group as classified by the National Statistical Coordination Board.
Registration of Parties
ATONG PAGLAUM , Inc. vs. COMMISSION ON ELECTIONS G.R. No. 203766
April 2, 2013
The recognition that national and regional parties, as well as sectoral parties of professionals, the elderly, women and the youth, need not be "marginalized and underrepresented" will allow small ideology-based and cause-oriented parties who lack "well-defined political constituencies" a chance to win seats in the House of Representatives. On the other hand, limiting to the "marginalized and underrepresented" the sectoral parties for labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, overseas workers, and other sectors that by their nature are economically at the margins of society, will give the "marginalized and underrepresented" an opportunity to likewise win seats in the House of Representatives.
Registration of Parties
LATEST GUIDELINES Based on the Atong Paglaum cases
1. Three different groups may participate in the party-list system: (1) national parties or organizations, (2) regional parties or organizations, and (3) sectoral parties or organizations. 2. National parties or organizations and regional parties or organizations do not need to organize along sectoral lines and do not need to represent any "marginalized and underrepresented" sector. 3. Political parties can participate in party-list elections provided they register under the party-list system and do not field candidates in legislative district elections. A political party, whether major or not, that fields candidates in legislative district elections can participate in party-list elections only through its sectoral wing that can separately register under the party-list system. The sectoral wing is by itself an independent sectoral party, and is linked to a political party through a coalition.
Registration of Parties
LATEST GUIDELINES Based on the Atong Paglaum cases 4. Sectoral parties or organizations may either be "marginalized and underrepresented" or lacking in "well-defined political constituencies." It is enough that their principal advocacy pertains to the special interest and concerns of their sector. The sectors that are "marginalized and underrepresented" include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, and overseas workers. The sectors that lack "well-defined political constituencies" include professionals, the elderly, women, and the youth. 5. A majority of the members of sectoral parties or organizations that represent the "marginalized and underrepresented" must belong to the "marginalized and underrepresented" sector they represent. Similarly, a majority of the members of sectoral parties or organizations that lack "well-defined political constituencies" must belong to the sector they represent. The nominees of sectoral parties or organizations that represent the "marginalized and underrepresented," or that represent those who lack "well-defined political constituencies," either must belong to their respective sectors, or must have a track record of advocacy for their respective sectors. The nominees of national and regional parties or organizations must be bonafide members of such parties or organizations. 6. National, regional, and sectoral parties or organizations shall not be disqualified if some of their nominees are disqualified, provided that they have at least one nominee who remains qualified.
Flowchart of the Philippine Electoral System Powers and Functions of the COMELEC
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VOTERS
Rules on CAMPAIGN
REGISTRATION
Rules on CANDIDACY
RULES ON CANDIDACY The term “candidate” refers to any person aspiring for or seeking an elective public office who has filed his certificate of candidacy and who has not died or withdrawn or otherwise disqualified before the start of the campaign period for which he filed his certificate of candidacy. Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period. (COMELEC Resolution No. 8678)
RESOLUTION Nos. 9615 and 10049 A broader definition of the term "candidate" was adopted by the COMELEC in Resolution Nos. 9615 (2013) and 10049 (2016) : The term “candidate” refers to any person seeking an elective public office, who has filed his certificate of candidacy, and who has not died, withdrawn his certificate of candidacy, had his or her certificate of candidacy denied due course or cancelled, or has been otherwise disqualified before the start of the campaign period for which he or she filed his certificate of candidacy. Provided, that, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period. It also refers to any registered national, regional, or sectoral party, organization or coalition thereof that has filed a manifestation of intent to participate under the party-list system, which has not withdrawn the said manifestation, or which has not been disqualified before the start of the campaign period.
RULES ON CANDIDACY Prohibition against multiple candidacies “Section 73. Certificate of candidacy. — xxx No person shall be eligible for more than one office to be filled in the same election, and if he files his certificate of candidacy for more than one office, he shall not be eligible for any of them. However, before the expiration of the period for the filing of certificates of candidacy, the person who has was filed more than one certificate of candidacy may declare under oath the office for which he desires to be eligible and cancel the certificate of candidacy for the other office or offices. The filing or withdrawal of a certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred.” (OEC)
DEADLINE for FILING Certificate Of Candidacy
FOR MANUAL ELECTIONS:
Certificate of candidacy must be filed not later than the day before the date for the beginning of the campaign period. (Sec. 7, Republic Act No. 7166)
DEADLINE for FILING Certificate Of Candidacy
FOR AES: xxx the Commission shall set the deadline for the filing of certificate of candidacy/petition of registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall effect only upon that start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers, and employees in government-owned or-controlled corporations, shall be considered ipso factor resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certification of candidacy. (Sec. 13, R.A. No. 9369)
QUALIFICATIONS OF CANDIDATES FOR PRESIDENT and VICE-PRESIDENT (Secs 2,3,4,7,8,9,10, Article VII, 1987 Constitution) FOR SENATORS (Secs. 2,3,4, Article VI, 1987 Constitution)
FOR MEMBERS OF THE HOUSE OF REPRESENTATIVES (Secs. 5, 6, 7, 9, Article VI, 1987 Constitution) FOR ELECTIVE LOCAL GOVERNMENT OFFICIALS (Sec. 39, R.A. 7160, The Local Government Code of 1991 [LGC])
QUALIFICATION OF CANDIDATES (as per 2015 bar coverage)
FOR PRESIDENT and VICE-PRESIDENT (Article VII, 1987 Constitution)
“Section 2. No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election. Section 3. There shall be a Vice-President who shall have the same qualifications and term of office and be elected with, and in the same manner, as the President. xxx
QUALIFICATION OF CANDIDATES (as per 2015 bar coverage)
FOR SENATORS (Article VI, 1987 Constitution)
Section 3. No person shall be a Senator unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least thirty-five years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two years immediately preceding the day of the election.
QUALIFICATION OF CANDIDATES (as per 2015 bar coverage)
FOR MEMBERS OF THE HOUSE OF REPRESENTATIVES (Article VI, 1987 Constitution)
Section 6. No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election.
QUALIFICATION OF CANDIDATES (as per 2015 bar coverage)
FOR PARTY-LIST NOMINEES “Section 9. Qualifications of Party-List Nominees. No person shall be nominated as party-list representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1)year immediately preceding the day of the election, able to read and write, 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, and 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.” (R.A. 7941)
QUALIFICATION OF CANDIDATES (as per 2015 bar coverage) FOR ELECTIVE LOCAL GOVERNMENT OFFICIALS (R.A. 7160, The Local Government Code of 1991 [LGC]) “Section 39. Qualifications. — (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. (b) Candidates for the position of governor, vice-governor, or member of the sangguniang panlalawigan, or mayor, vice-mayor or member of the sangguniang panlungsod of highly urbanized cities must be at least twenty-one (21) years of age on election day. (c) Candidates for the position of mayor or vice-mayor of independent component cities, component cities, or municipalities must be at least twenty-one (21) years of age on election day. (d) Candidates for the position of member of the sangguniang panlungsod or sangguniang bayan must be at least eighteen (18) years of age on election day. (e) Candidates for the position of punong barangay or member of the sangguniang barangay must be at least eighteen (18) years of age on election day. (f) Candidates for the sangguniang kabataan must be at least fifteen (15) years of age but not more than twenty-one (21) years of age on election day.” (R.A. 7160, LGC)
EFFECTS OF FILING C.O.C. Any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. (Section 66, OEC, as amended)
Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of candidacy for the same or any other elective office or position.
The QUINTO case Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. (Quinto vs. COMELEC, G.R. No. 189698, 22 February 2010)
2002 BAR, Question No. XIII-A Q: Mario Habagat, City Legal Officer, filed a certificate of candidacy for the position of city of Mayor in the May 14, 2001 elections. Was he ipso facto considered resigned and is, effective on what date?
A: Mario Habagat was considered ipso facto resigned upon the filing of his certificate of candidacy, because being a City Legal Officer, he is an appointive official. Section 66 of B.P. 881 provides that any person holding a public appointive office shall be considered ipso facto resigned upon the filing of his certificate of candidacy.
2003 BAR, Question No. X Q: Aldrin Cuna is an incumbent Vice-Mayor of Quezon City. He intends to run in the regular elections for the position of City Mayor of Quezon City whose incumbent mayor would have fully served three consecutive terms by 2004. Would Aldrin have to give up his position as Vice-Mayora.) b.) c.) d.) e.)
Once he files his certificate of candidacy; or When the campaign period starts; or Once and if he is proclaimed winner in the election; or Upon his assumption to the office; or None of the above If Aldrin were, instead an incumbent Congressman of Quezon City, who intends to seek the mayoralty post in Quezon City, would your answer be the same? If not, which would be your choice?
A certificate which did not indicate the position for which the candidate is running may be corrected. (Conquilla v. Commission on Elections, 332 SCRA 861) Prohibition against multiple candidacies
1. A person who files a certificate of candidacy for more than one office should not be eligible for any of them. 2. Before the deadline for filing certificates, he may withdraw all except one. (Sec. 73, Omnibus Election Code). The withdrawal need not be file with the office where the certificate of candidacy was filed, as it is not required by law. (Go. v. Commission on Elections, 357 SCRA 739)
SEC. 7. Independent Candidate. - An independent candidate is one who falls in any of the following circumstances: -who has not been nominated by a duly registered political party or coalition of political parties or its duly authorized representative;
-whose CONA has been submitted by a political party or coalition of political parties not duly registered with the Commission;
SEC. 7. Independent Candidate. -who has not accepted a nomination, or has repudiated his CONA from a duly registered political party or coalition of political parties on or before December 21, 2012; -who accepts nominations from more than one duly registered political parties for the same constituency, except in cases of coalitions of said political parties; -whose CONA was filed after the last day of filing of Certificates of Candidacy; -whose CONA was not filed together with his Certificate of Candidacy;
SEC. 7. Independent Candidate. -whose CONA was cancelled, withdrawn or substituted by the nominating party within the period for the filing of Certificates of Candidacy; -whose CONA was denied due course pursuant to the last paragraph of Sec. 6 hereof. A candidate who accepts nominations from both national and local registered political parties shall not be considered as an independent candidate. (Reso. 9518)
Disqualification TO BE A CANDIDATE 1.
Omnibus Election Code
i.
Any person declared by competent authority insane or incompetent
ii. Any person sentenced by final judgment for any of the following offenses: 1) Insurrection, or rebellion 2) Offense for which he was sentenced to penalty of more than 18 months 3) Crime involving moral turpitude (Sec. 12, Omnibus Election Code)
iii. A permanent resident to or immigrant to foreign country unless he waives such status (Sec. 68, Omnibus Election Code)
Disqualification OF CANDIDATES
Violation of Omnibus Election Code i. Giving money or other material consideration to influence voters or public officials performing electoral functions. ii. Committing acts of terrorism to enhance his candidacy (Dangka v. Commission on Elections, 323 SCRA 887) iii. Spending in his election campaign in excess of the amount allowed by the Code iv. Soliciting, receiving or making any prohibited contribution v. Violation of Section 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6 (Sec. 68, Omnibus Election Code) b. Nuisance candidate * (Sec. 69, Omnibus Election Code) c. Falsity of material representation in certificate of candidacy. (Sec. 78 Omnibus Election Code) a.
Disqualification OF CANDIDATES
a.
Violation of Omnibus Election Code iii. Spending in his election campaign in excess of the amount allowed by the Code
Section 13. (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. (R.A. 7166)
Disqualification OF CANDIDATES
a.
Violation of Omnibus Election Code iv. Soliciting, receiving or making any prohibited contribution Sec. 89. Transportation, food and drinks. Sec. 95. Prohibited contributions. Sec. 96. Soliciting or receiving contributions from foreign sources. Sec. 97. Prohibited raising of funds. Sec. 104. Prohibited donations by candidates, treasurers of parties or their agents.
Disqualification OF CANDIDATES a.
Violation of Omnibus Election Code v. Violation of Section 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6 (Sec. 68, Omnibus Election Code) •Section 80 (pre-mature campaigning) of the OEC no longer applicable under Section 15, R.A. 8436, amended by Section 13 of R.A.9369
•Sec. 83. Removal, destruction or defacement of lawful election propaganda prohibited. - It shall be unlawful for any person during the campaign period to remove, destroy, obliterate, or in any manner deface or tamper with, or prevent the distribution of lawful election propaganda. • Section 85 of the OEC has already been repealed by Section 14 of R.A. 9006. •Section 86 of the OEC has already been repealed by Section 6 of R.A. 9006. •Section 261 (d) of the OEC has already been repealed by Section 2 of R.A. 7890.
•Sections 261 (e) , (k), (v) and (cc) of the OEC are still valid.
Disqualification OF CANDIDATES
b. Nuisance candidate (Sec. 69, Omnibus Election Code) • Motu propio or upon a verified petition of interested party • Refuse to give due course to or cancel a COC 1. To put the election process in mockery or disrefute 2. To cause confusion among voters by similarity of names of the registered candidate 3. Other circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for office
Should the votes cast for such nuisance candidate be considered stray or counted in favor of the bona fide candidate? In Bautista vs. COMELEC, G.R. No. 133840, 13 November 1998, the Supreme Court said that the votes cast for the mayoralty candidates separately tallied on orders of the COMELEC Chairman was for the purpose of counting the votes later and are not stray votes. In the case of Martinez III vs. House of Representatives Electoral Tribunal, G.R. No. 189034, 11 January 2010, the Supreme Court upheld the basic rule that the primordial objective of election laws is to give effect to, rather than frustrate, the will of the voter.
Should the votes cast for such nuisance candidate be considered stray or counted in favor of the bona fide candidate in an AUTOMATED ELECTION?
The Supreme Court ruled NOT to consider the votes cast for a nuisance candidate as stray but to count them in favor of the bona fide candidate.
…in an AUTOMATED ELECTION? The possibility of confusion in names of candidates if the names of nuisance candidates remained on the ballots on election day, cannot be discounted or eliminated, even under the automated voting system especially considering that voters who mistakenly shaded the oval beside the name of the nuisance candidate instead of the bona fide candidate they intended to vote for could no longer ask for replacement ballots to correct the same.” (Dela Cruz vs. COMELEC, G.R. No. 192221, 13 November 2012)
Dela Cruz vs. COMELEC, G.R. No. 192221, 13 November 2012
NUISANCE CANDIDATES Moreover, private respondent admits that the voters were properly informed of the cancellation of COC of Aurelio because COMELEC published the same before election day. As we pronounced in Bautista, the voters’ constructive knowledge of such cancelled candidacy made their will more determinable, as it is then more logical to conclude that the votes cast for Aurelio could have been intended only for the legitimate candidate, petitioner.
Disqualification OF CANDIDATES
c. Falsity of material representation in certificate of candidacy. (Sec. 78 Omnibus Election Code) • Verified petition • Exclusively on the ground that any MATERIAL representation contained in the COC as required under Sec. 74 is FALSE
Petition to Deny Due Course or Cancel COC cases The use by a married woman of the surname of her husband in her certificate of candidacy when their marriage is bigamous does not constitute falsity of a material representation, since she had no intention to deceive and mislead the public as to her true identity. (Victorino Salcedo II v. COMELEC and Emerlita Cacao Salcedo, G.R. No. 135886, 16 August 1999)
Lonzanida's certificate of candidacy was cancelled because he was ineligible or not qualified to run for Mayor. Whether his certificate of candidacy is cancelled before or after the elections is immaterial because the cancellation on such ground means he was never a candidate from the very beginning, his certificate of candidacy being void ab initio. There was only one qualified candidate for Mayor in the May 2010 elections — Antipolo, who therefore received the highest number of votes. (Aratea v. COMELEC, G.R. No. 195229, 09 October 2012)
G.R. No. 206698, 25 February 2014 LUIS R. VILLAFUERTE vs. COMELEC and MIGUEL R. VILLAFUERTE AT ALL EVENTS, the use of a name other than that stated in the certificate of birth is not a material misrepresentation, as "material misrepresentation" under the earlier-quoted Section 78 of the Omnibus Election Code refers to "qualifications for elective office." It need not be emphasized that there is no showing that there was an intent to deceive the electorate as to private respondent’s identity, nor that by using his Filipino name the voting public was thereby deceived.
Clearly, from the foregoing, for the petition to deny due course or cancel the COC of one candidate to prosper, the candidate must have made a material misrepresentation involving his eligibility or qualification for the office to which he seeks election, such as the requisite residency, age, citizenship or any other legal qualification necessary to run for local elective office as provided in the Local Government Code. Hence, petitioner’s allegation that respondent’s nickname "LRAY JR. MIGZ" written in his COC is a material misrepresentation is devoid of merit. Respondent's nickname written in the COC cannot be considered a material fact which pertains to his eligibility and thus qualification to run for public office.
Petition for disqualification (Sec. 68) vs. Petition to cancel or deny due course to a COC (Sec. 78) G.R. No. 202202 March 19, 2013 SILVERIO R. TAGOLINO, Petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and LUCY MARIE TORRESGOMEZ, Respondents
In fine, the Court observes that the HRET wantonly disregarded the law by deliberately adopting the COMELEC En Banc’s flawed findings regarding private respondent’s eligibility to run for public office which essentially stemmed from her substitution. In this light, it cannot be gainsaid that the HRET gravely abused its discretion.
Owing to the lack of proper substitution in its case, private respondent was therefore not a bona fide candidate for the position of Representative for the Fourth District of Leyte when she ran for office, which means that she could not have been elected. Considering this pronouncement, there exists no cogent reason to further dwell on the other issues respecting private respondent’s own qualification to office.
The PENERA case Section 79(a) of the Omnibus Election Code defines a “candidate” as “any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy x x x.” The second sentence, third paragraph, Section 15 of RA 8436, as amended by Section 13 of RA 9369, provides that “[a]ny person who files his certificate of candidacy within [the period for filing] shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy.” The immediately succeeding proviso in the same third paragraph states that “unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period.” These two provisions determine the resolution of this case. (Penera vs. COMELEC ,G.R. No. 181613, 25 November 2009)
2011 Bar Exam MCQ
50. Where a candidate for the Senate stated in his certificate of candidacy that he is single, when he is very much married, though separated, his certificate of candidacy:
A. may be canceled. B. will subject him to a quo warranto action. C. remains valid D. may be denied due course.
Effects of disqualification case a. Any candidate who has been declared by final judgment to be disqualified shall not be voted for and votes cast in his favor shall not be counted. (Sec. 72, OEC) b. If a candidate is not declared by final judgment before an election to be disqualified the case shall continue and his proclamation may be suspended if the evidence of guilt is strong. (Sec. 6, Republic Act No. 6646, as amended).
SUBSTITUTION OF CANDIDATES
If after the last day for filing certificates, a candidate dies, withdraws or is disqualified, he may be substituted by a person belonging to his party not later than mid-day of election day. (Sec. 77, Omnibus Election Code)
SUBSTITUTION OF CANDIDATES
The substitute for a candidate who died or suffered permanent incapacity or disqualified by final judgment, may file his certificate of candidacy up to mid-day of election day. xxx occur between the day before the election and mid-day of election day, the substitute candidate may file the certificate with any board of election inspectors in the political subdivision where he is a candidate, or in the case of a candidate for President, Vice-President or Senator, with the Law Department of the Commission on Elections in Manila. No person who has withdrawn his candidacy for a position shall be eligible as substitute candidate for any other position after the deadline for filing of certificates of candidacy. (Reso. No. 8678)
Rules on Substitution Substitution of candidates should be allowed even for barangay elections, as it is not prohibited by law. (Rulloda v. Commission on Elections, 395 SCRA 535) Substitution is not allowed if the certificate of the candidate to be substituted was cancelled, because he was running for the fourth consecutive term. (Miranda v. Abaya, 311 SCRA 617) see: TAGOLINO vs. HRET An independent candidate who joined the party of a disqualified candidate may be nominated as his substitute even if he joined the party only after the disqualification. (Sinaca v. Mula, 315 SCRA 266).
SUBSTITUTION OF CANDIDATES FOR THE 2013 ELECTIONS SEC. 15. Substitution of Candidates in case of death, disqualification or withdrawal of another. - If after the last day for the filing of Certificates of Candidacy, an official candidate of a duly registered political party or coalition of political parties dies, withdraws or is disqualified for any cause, he may be substituted by a candidate belonging to, and nominated by, the same political party. No substitute shall be allowed for any independent candidate. The substitute of a candidate who has withdrawn on or before December 21, 2012 may file his Certificate of Candidacy for the office affected not later than December 21, 2012, so that the name of the substitute will be reflected on the official ballots. No substitution due to withdrawal shall be allowed after December 21, 2012.
SUBSTITUTION OF CANDIDATES FOR 2013
SEC. 15. Substitution of Candidates – The substitute for a candidate who died or is disqualified by final judgment, may file his Certificate of Candidacy up to mid-day of election day, provided that the substitute and the substituted have the same surnames. If the death or disqualification should occur between the day before the election and mid-day of election day, the substitute candidate may file his Certificate of Candidacy with any Board of Election Inspectors in the political subdivision where he is a candidate, or in the case of a candidate for Senator, with the Law Department of the Commission on Elections in Manila, provided that the substitute and the substituted candidate have the same surnames. (Reso. 9518)
Residency Requirement
There is no hard and fast rule to determine a candidate’s compliance with residency requirement since the question of residence is a question of intention. Still, jurisprudence has laid down the following guidelines: (a) every person has a domicile or residence somewhere; (b) where once established, that domicile remains until he acquires a new one; and (c) a person can have but one domicile at a time. (Limbona v. Commission on Elections, G.R. No. 181097, June 25, 2008) [emphasis supplied]
R E S I D E N C Y
The principle elements of domicile, physical presence in the locality involved and intention to adopt it as his/ her domicile, must concur to establish a new domicile. A lease contract entered into a little over a year before the day of elections does not adequately support a change of domicile. However, a person who worked in a different town but resides in another and is a registered voter and owns property in the latter and a person who lived in a house that he/ she bought for more than 25 years and is a registered voter of that place for more than a year meets the residency requirement. Registration as a voter in another place is not sufficient to consider a person to have abandoned his residence. (Domino v. Commission on Elections, G.R. No. 134015, July 19, 1999; Papaudayan v. Commission on Elections, G.R. No. 147909, April 16, 2002; Torayno v. Commission on Elections, G.R. No. 137329, August 9, 2000; Perez v. Commission on Elections, G.R. No. 133944, October 28, 1999)
G.R. No. 191970 April 24, 2012 ROMMEL APOLINARIO JALOSJOS, Petitioner, vs. THE COMMISSION ON ELECTIONS and DAN ERASMO, SR.,
“On the other hand, when he came to the Philippines in November 2008 to live with his brother in Zamboanga Sibugay, it is evident that Jalosjos did so with intent to change his domicile for good. He left Australia, gave up his Australian citizenship, and renounced his allegiance to that country. In addition, he reacquired his old citizenship by taking an oath of allegiance to the Republic of the Philippines, resulting in his being issued a Certificate of Reacquisition of Philippine Citizenship by the Bureau of Immigration. By his acts, Jalosjos forfeited his legal right to live in Australia, clearly proving that he gave up his domicile there. And he has since lived nowhere else except in Ipil, Zamboanga Sibugay.”
LUIS A. ASISTIO, vs. HON. THELMA CANLAS TRINIDAD-PE AGUIRRE, Presiding Judge, Regional Trial Court, Caloocan City, Branch 129, et. al. G.R. No. 191124 , 27 April 2010
“Domicile is not easily lost. To successfully effect a transfer thereof, one must demonstrate: (1) an actual removal or change of domicile; (2) a bona fide intention of abandoning the former place of residence and establishing a new one; and (3) acts which correspond with that purpose. There must be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual.”
ABRAHAM KAHLIL B. MITRA vs. COMMISSION ON ELECTIONS, et. al.. G.R. No. 191938 October 19, 2010 “With
the conclusion that Mitra did not commit any material misrepresentation in his COC, we see no reason in this case to appeal to the primacy of the electorate’s will. We cannot deny, however, that the people of Palawan have spoken in an election where residency qualification had been squarely raised and their voice has erased any doubt about their verdict on Mitra’s qualifications. Under these terms, we cannot be any clearer.”
RULES ON CITIZENSHIP? On Repatriation: The law (Sec. 2, RA 8171) is clear that repatriation is effected “by taking the oath of allegiance to the Republic of the Philippines and registration in the proper civil registry and in the Bureau of Immigration.” Hence, in addition to taking the Oath of Allegiance to the Republic of the Philippines, the registration of the Certificate of Repatriation in the proper civil registry and the Bureau of Immigration is a prerequisite in effecting the repatriation of a citizen. (Altarejos v. COMELEC, G.R. No. 163256, 10 November 2004)
RULES ON CITIZENSHIP?
On the Retention of Philippine Citizenship: Failure to renounce foreign citizenship in accordance with the exact tenor of Section 5(2) of Republic Act (R.A.) No. 9225 renders a dual citizen ineligible to run for and thus hold any elective public office. (Sobejana-Condon v. COMELEC, et.al., G.R.No.198742, 10 August 2012)
RULES ON CITIZENSHIP? There is a disputable presumption that things have happened according to the ordinary course of nature and ordinary habits of life. All the foregoing evidence, that a person with typical Filipino features is abandoned in Catholic Church in a municipality where the population of the Philippines is overwhelmingly Filipinos such that there would be more than a 99% chance that a child born in the province would be a Filipino, would indicate more than ample probability if not statistical certainty, that petitioner’s parents are Filipinos. That probability and the evicdence on which it is based are admissible under Rule 128, Section 4 of the Revised Rules on Evidence. To assume otherwise is to accept the absurd, if not the virtually impossible, as the norm. (Natividad S. Poe-Llmanzares vs COMELEC, et. at., GR Nos. 221697, 21698-700, 08 March 2016)
ROGELIO CABALLERO vs. COMMISSION ON ELECTIONS, et. al.. September 2015
Issue: Caballero re-acquired Filipino citizenship on 13 September 2012 Re-acquisition of Filipino citizenship did not automatically make him regain his residence in Uyugan. He must still prove that after becoming a Philippine citizen…he had re-established Uyugan as his new domicile of choice which is reckoned from the time he made it as such.
Casan Maquiling vs. COMELEC (G.R. No. 195649, 16 April 2013)
THREE (3) ISSUES RESOLVED: 1st - Whether or not intervention is allowed in a disqualification case. 2nd - Whether or not the use of a foreign passport after renouncing foreign citizenship amounts to undoing a renunciation earlier made (whether or not the use of a foreign passport after renouncing foreign citizenship affects one’s qualifications to run for public office. 3rd - Whether or not the rule on succession in the Local Government Code is applicable to this case.
Casan Maquiling vs. COMELEC (G.R. No. 195649, 16 April 2013)
1st - Whether or not intervention is allowed in a disqualification case. “Clearly then, Maquiling has the right to intervene in the case. The fact that the COMELEC En Banc has already ruled that Maquiling has not shown that the requisites for the exemption to the second-placer rule set forth in Sinsuat v. COMELECare present and therefore would not be prejudiced by the outcome of the case, does not deprive Maquiling of the right to elevate the matter before this Court.”
Casan Maquiling vs. COMELEC (G.R. No. 195649, 16 April 2013)
2nd – Whether or not the use of a foreign passport after renouncing foreign citizenship affects one’s qualifications to run for public office.
“We agree with the COMELEC En Banc that such act of using a foreign passport does not divest Arnado of his Filipino citizenship, which he acquired by repatriation. However, by representing himself as an American citizen, Arnado voluntarily and effectively reverted to his earlier status as a dual citizen. Such reversion was not retroactive; it took place the instant Arnado represented himself as an American citizen by using his US passport”
Casan Maquiling vs. COMELEC (G.R. No. 195649, 16 April 2013)
3rd - Whether or not the rule on succession in the Local Government Code is applicable to this case. “Resolving the third issue necessitates revisiting Topacio v. Paredes ,which is the jurisprudential spring of the principle that a second-placer cannot be proclaimed as the winner in an election contest. This doctrine must be reexamined and its soundness once again put to the test to address the ever-recurring issue that a second-placer who loses to an ineligible candidate cannot be proclaimed as the winner in the elections.”
Casan Maquiling vs. COMELEC (G.R. No. 195649, 16 April 2013)
3rd - Whether or not the rule on succession in the Local Government Code is applicable to this case. “To hold that such proclamation is valid is to negate the prohibitory character of the disqualification which Arnado possessed even prior to the filing of the certificate of candidacy. The affirmation of Arnado’s disqualification, although made long after the elections, reaches back to the filing of the certificate of candidacy. Arnado is declared to be not a candidate at all in the May 2010 elections. Arnado being a non-candidate, the votes cast in his favor should not have been counted. This leaves Maquiling as the qualified candidate who obtained the highest number of votes. Therefore, the rule on succession under the Local Government Code will not apply.”
Lone Candidate Law (R.A. 8295, “AN ACT PROVIDING FOR THE PROCLAMATION OF A LONE CANDIDATE FOR ANY ELECTIVE OFFICE IN A SPECIAL ELECTION, AND FOR OTHER PURPOSES”)
Section 2. Proclamation of a lone candidate. – Upon the expiration of the deadline for the filing of the certificates of candidacy in a special election called to fill a vacancy in an elective position other than for President and Vice President, when there is only one (1) qualified candidate for such position, the lone candidate shall be proclaimed elected to the position by proper proclaiming body of the Commission on Elections without holding the special election upon certification by the Commission on Elections that he is the only candidate for the office and is thereby deemed elected.
Flowchart of the Philippine Electoral System Powers and Functions of the COMELEC
(next slide)
VOTERS
Rules on CAMPAIGN
REGISTRATION
Rules on CANDIDACY
ELECTION PERIOD
SEC. 9. Article IX-C – Unless otherwise fixed by the Commission in special cases, the election period shall commence 90 days before the day of the election and shall end 30 days after. (1987 Constitution)
Sec. 3. Election and campaign periods. - Unless otherwise fixed in special cases by the Commission on Elections, which hereinafter shall be referred to as the Commission, the election period shall commence ninety days before the day of the election and shall end thirty days thereafter. (OEC)
PROHIBITED ACTS DURING ELECTION PERIOD
1. Alteration of territory of a precinct or establishment of a new precinct. (Sec. 5, RA 8189). Sec. 5. - xxxx No territory comprising an election precinct shall be altered or a new precinct be established at the start of the election period. Splitting of an original precinct or merger of more original precinct map/s one hundred twenty (120) days before election day.
PROHIBITED ACTS DURING ELECTION PERIOD
2. Transfer or movement of officers and employees in the civil service. (Sec. 261 (h), OEC). Section 261. Prohibited Acts. - xxxx (h) Transfer of officers and employees in the civil service. Any public official who makes or causes any transfer or detail whatever of any officer or employee in the civil service including public school teachers, within the election period except upon prior approval of the Commission.
PROHIBITED ACTS DURING ELECTION PERIOD
3. Prohibited form of raising funds (dances, lotteries, cockfights, games, boxing bouts, bingo, beauty contests, entertainments, etc.) [Sec. 97. OEC.] Section 97. Prohibited raising of funds. - It shall be unlawful for any person to hold dances, lotteries, cockfights, games, boxing bouts, bingo, beauty contests, entertainments, or cinematographic, theatrical or other performances 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; xxx
PROHIBITED ACTS DURING ELECTION PERIOD
3.
Prohibited form of raising funds (dances, lotteries, cockfights, games, boxing bouts, bingo, beauty contests, entertainments, etc.) [Sec. 97. OEC.] Section 97. Prohibited raising of funds. – xxx; or for any person or organization, whether civic or religious, directly or indirectly, to solicit and/or accept 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; xxx
PROHIBITED ACTS DURING ELECTION PERIOD
3.
Prohibited form of raising funds (dances, lotteries, cockfights, games, boxing bouts, bingo, beauty contests, entertainments, etc.) [Sec. 97. OEC.] Section 97. Prohibited raising of funds. – xxx; Provided, That normal and customary religious stipends, tithes, or collections on Sundays and/or other designated collection days, are excluded from this prohibition.
PROHIBITED ACTS DURING ELECTION PERIOD
4. Bearing, carrying or transporting firearms or other deadly weapons, unless authorized in writing by the Commission. (Sec. 261 (p) (q) (r) and (s), OEC as amended by Sec. 32, RA 7166).
PROHIBITED ACTS DURING ELECTION PERIOD
5. Use of security personnel or bodyguards by candidates, unless authorized in writing by the Commission. (Sec. 261 (t), OEC as amended by Sec. 33, RA 7166) 6. Organization or maintenance of reaction forces, strike forces o other similar forces. (Sec. 261 (u), OEC).
PROHIBITED ACTS DURING ELECTION PERIOD
7. Suspension of elective local officials. (Sec. 261 (x), OEC) Sec. 261 (x) Suspension of elective provincial, city, municipal or barangay officer. - The provisions of law to the contrary notwithstanding during the election period, any public official who suspends, without prior approval of the Commission, any elective provincial, city, municipal or barangay officer, unless said suspension will be for purposes of applying the "AntiGraft and Corrupt Practices Act" in relation to the suspension and removal of elective officials; in which case the provisions of this section shall be inapplicable.
PROHIBITED ACTS DURING ELECTION PERIOD
8. Grant, suspension or cancellation of radio or TV franchise. (Sec. 6.4, R.A. 9006) Sec. 6. Equal Access to Media Time and Space – (6.4) No franchise or permit to operate a radio or television station shall be granted or issued, suspended or cancelled during election period.
CAMPAIGN PERIOD Sec. 5, R.A. 7166 – xxx The campaign periods are hereby fixed as follows: (a) For President, Vice-President and Senators, ninety (90) days before the day of the election; and (b) For Members of the House of Representatives and elective provincial, city and municipal officials, forty-five (45) days before the day of the election. xxx
The PENERA case Section 79(a) of the Omnibus Election Code defines a “candidate” as “any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy x x x.” The second sentence, third paragraph, Section 15 of RA 8436, as amended by Section 13 of RA 9369, provides that “[a]ny person who files his certificate of candidacy within [the period for filing] shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy.” The immediately succeeding proviso in the same third paragraph states that “unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period.” These two provisions determine the resolution of this case. (Penera vs. COMELEC ,G.R. No. 181613, 25 November 2009)
CAMPAIGN SPENDING
Section 13, R.A. 7166: P10.00 per registered voter – Pres & VP P3.00 per registered voter - OTHERS P5.00 per registered voter INDEPENDENT candidate
-
if
P5.00 per registered voter - for POLITICAL PARTIES (& Party-Lists)
RULES AND REGULATIONS GOVERNING CAMPAIGN FINANCE AND DISCLOSURE COMELEC RESOLUTION No. 9476 NOT INCLUDED IN THE LIMIT: 1. Employment of counsel; 2. Photocopying of lists of voters, challenging right to vote; 3. Printing sample ballots. (Sec. 3 [i to k])
Lawful Propaganda a. Election Propaganda on television, cable television, radios, newspapers or any other medium is allowed. (Sec. 3, Republic Act No. 9006) i. Written or printed materials not exceeding 8 ½ inches by 14 inches. (Sec. 3.1, Republic Act. No. 9006) ii. Handwritten or printed letters urging voters to vote for or against a party of candidate (Sec. 3.2, Republic Act No. 9006)
Lawful Propaganda a. Election Propaganda on television, cable television, radios, newspapers or any other medium is allowed. (Sec. 3, Republic Act No. 9006) iii. Posters not exceeding 2 feet by 3 feet, but streamers not exceeding 3 feet by 8 feet may be displayed at the site of a rally 5 days before the rally and should be removed within 24 hours after the rally. (Sec 3.3, Republic Act No. 9006) iv. Paid advertisements in print or broadcast media. (Sec. 3.4, Republic Act No. 9006) v. All other forms of propaganda not prohibited by the omnibus Election Code or the Fair Election Act (Sec. 3.5, Republic Act No. 9006)
Lawful Propaganda Comelec Reso 10049
e. Mobile units, vehicles motorcade of all types, whether engine or manpowerdriven or animal-drawn, with or without sound systems or loud speakers and with or without lights. (Sec. 6) g. In the headquarters or residences of candidates, lawful election paraphernalia may be displayed, but banners or streamers are not allowed. (Sec. 6)
COMELEC Resolution No. 10049 PARTISAN POLITICAL ACTIVITY
“Personal
opinions, views, and preferences for candidates, contained in blogs and micro-blogs shall not be considered as acts of election campaigning or partisan political activity unless expressed by government officials in the Executive Department, the Legislative Department, the Judiciary, the Constitutional Commissions, and members of the Civil Service.”
COMELEC Resolution No. 9615 POLITICAL ADVERTISEMENT
Political advertising includes matters, not falling within the scope of personal opinion, that appear on any Internet website, including, but not limited to, social networks, blogging sites, and micro-blogging sites, in return for consideration, or otherwise capable of pecuniary estimation.
PROHIBITED CAMPAIGN MATERIALS 1. All Printed, Published, or Aired Matters WITHOUT the words 1.) “Political Advertisement Paid FOR”; AND 2.) “Political Advertisement Paid BY” 2. Donated materials WITHOUT 1.) written acceptance; and 2.) contain "printed free of charge,” or “airtime for this broadcast was provided free of charge by” * Must be accompanied by the written acceptance of the candidate or treasurer of party (Section 10, COMELEC Reso No. 10049)
PROHIBITED CAMPAIGN MATERIALS 3. Film-showing, etc. of a candidate’s life or an actor who is a candidate. 4. “Size, Duration, and Frequency matter”
5. Media practitioner’s undue favor or opposition 6. To post outside common poster area, in public places, and in private properties without the consent of owner thereof.
Right to Reply All parties and candidates have the right to reply to charges, published against them. The reply shall be given the same prominence and shall be printed in the same page or section and in the same time slot as the first statement. (Sec. 10, Republic Act No. 9006)
The Diocese of Bacolod vs. COMELEC GR No. 205728 21 January 2015 In its resolution the SC said the Comelec has no power to regulate the free expression of private citizens, who were neither candidates nor members of political parties. It added that the Comelec’s actions violated the rights of free speech and expression of petitioners, and their right to property.
The High Court did not consider the poster as a religious speech even if it was created under the orders of the Bacolod bishop. While the tarpaulin may influence the success or failure of the named candidates and political parties, this does not necessarily mean it is election propaganda. The tarpaulin was not paid for or posted “in return for consideration” by any candidate, political party, or party-list group. Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a specie of expression protected by our fundamental law. It is an expression designed to invite attention, cause debate, and hopefully, persuade. It may be motivated by the interpretation of petitioners of their ecclesiastical duty, but their parishioner’s actions will have very real secular consequences.
G.R. No. 205357
02 September 2014 GMA NETWORK, INC. vs. COMMISSION ON ELECTIONS
The Court agrees. The assailed rule on "aggregate-based" airtime limits is unreasonable and arbitrary as it unduly restricts and constrains the ability of candidates and political parties to reach out and communicate with the people. Here, the adverted reason for imposing the "aggregate-based" airtime limits leveling the playing field - does not constitute a compelling state interest which would justify such a substantial restriction on the freedom of candidates and political parties to communicate their ideas, philosophies, platforms and programs of government. And, this is specially so in the absence of a clear-cut basis for the imposition of such a prohibitive measure. In this particular instance, what the COMELEC has done is analogous to letting a bird fly after one has clipped its wings. It is also particularly unreasonable and whimsical to adopt the aggregate-based time limits on broadcast time when we consider that the Philippines is not only composed of so many islands. There are also a lot of languages and dialects spoken among the citizens across the country. Accordingly, for a national candidate to really reach out to as many of the electorates as possible, then it might also be necessary that he conveys his message through his advertisements in languages and dialects that the people may more readily understand and relate to. To add all of these airtimes in different dialects would greatly hamper the ability of such candidate to express himself - a form of suppression of his political speech.
Prohibited DONATIONS It is prohibited for any candidate, his spouse, relative within second degree of consanguinity or affinity, or representative to make any contribution for any structure for public use or for use of any religious or civic organization, except the normal religious dues and payments for scholarships established and school contributions habitually made before the campaign period. (Sec. 104, Omnibus Election Code)
Prohibited CONTRIBUTIONS
No political contribution shall be made by the following: 1. Public or private financial institutions. 2. Public utilities and those who exploit natural resources. Thus, where an operator of a public utility disguised a contribution to a candidate for governor as a loan, the promissory note is void. 3. Persons who hold contracts or sub-contracts to supply the government with goods or services
Prohibited CONTRIBUTIONS
No political contribution shall be made by the following: xxx 4. Persons granted franchises, incentives, exemptions or similar privileges by the government 5. Persons granted loans in excess of P25,000.00 by the government or any of its subdivisions or instrumentalities 6. Schools which received grants of public funds of at least P100,000 7. Employees in the Civil Service or members of the Armed Forces 8. Foreigners. (Sec. 95, Omnibus Election Code)
Statement of contributions and expenditures 1. Filing a. Every candidate and treasurer of political party shall file within 30 days after election day a statement of contributions and expenditures.
b. No person elected shall assume office until he and his political party have filed the required statements.
Statement of contributions and expenditures
2. Penalties a. First offense – administrative fine from P1,000 to P30,000 b. Subsequent offense i. Administrative fine from P2,000 to P60,000 ii. Perpetual disqualification to hold public office. (Sec. 14, Republic Act No. 7166) ** Considered as an election offense (Sec. 262, OEC)
Tax Consequences (Resolution No. 9476) Any election contribution, duly reported to the COMELEC, shall not be subject to payment of donor’s tax (RA 7166, Sec. 13, Par. 4) Unexpended balance from any contribution to candidate or party shall be subject to income tax (BIR Revenue Regulation No. 7-2011)
Statement of contributions and expenditures Should a candidate who has withdrawn his COC still file his statement of contributions and expenditures? “It is not improbable that a candidate who withdrew his candidacy has accepted contributions and incurred expenditures, even in the short span of his campaign. The evil sought to be prevented by the law is not all too remote. xxx xxx xxx Lastly, we note that under the fourth paragraph of Section 73 of the B.P. Blg. 881 or the Omnibus Election Code of the Philippines, it is provided that "[t]he filing or withdrawal of certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred." Petitioner's withdrawal of his candidacy did not extinguish his liability for the administrative fine.” (Pilar vs. COMELEC, G.R.No. 115245, 11 July 1995)
EMILIO RAMON EJERCITO vs. COMELEC G.R. 212398, 25 Nov. 2014/17 Feb. 2015 San Luis filed the disqualification case against Ejercito before COMELEC. Following the COMELEC ruling, Ejercito was replaced by Vice Governor Ramil Hernandez. In his defense, Ejercito said the COMELEC committed grave abuse of discretion in ordering his disqualification as Laguna governor. The COMELEC resolution should be declared as null and void since the latter assumed the case filed against him was for his disqualification when it fact it was only a request to initiate a criminal proceeding for alleged violation of election laws. He explained that the COMELEC took it upon itself to assume that it was for his disqualification, contrary to the Omnibus Election Code. The COMELEC ruling said Ejercito overspent in his campaign expenses, noting that he shelled out P6 million in just one television advertisement contract, when he is only allowed to spend P4.5 million for his entire campaign.
2003 BAR, Question No. IX Q: May the Comelec prohibit the posting of decals and stickers on “mobile” places, public or private, such as on private vehicle, and limit their location only to authorized posting areas that the Comelec itself fixes? A: According to Adiong v. Comelec (207 SCRA 712) the prohibition is unconstitutional. It curtails the freedom of expression of individuals who wish to express their preference for a candidate by posting decals and stickers on their cars and to convince to agree with them.
2012 ESSAY QUESTION VII. Mayor Pink is eyeing re-election in the next mayoralty race. It was common knowledge in the town that Mayor Pink will run for re-election in the coming elections. The deadline for filing of Certificate of Cadidacy (CoC) is on March 23 and the campaign period commences the following day. One month before the deadline, Pink has yet to file her CoC, but she has been going around town giving away sacks of rice with the words "Mahal Tayo ni Mayor Pink" printed on them, holding public gatherings and speaking about how good the town is doing, giving away pink t-shirts with 'Kay Mayor Pink Ako" printed on them.
2012 ESSAY QUESTION VII. a. Mr. Green is the political opponent of Mayor Pink. In April, noticing that Mayor Pink had gained advantage over him because of her activities before the campaign period, he filed a petition to disqualify Mayor Pink for engaging in an election campaign outside the designated period. a.1. Which is the correct body to rule on the matter? Comelec en banc, or Comelec division? Answer with reasons. (2%) a.2. Rule on the petition. (5%)
ARREST DURING CAMPAIGN? Sec 266 of the OEC Section 266. Arrest in connection with the election campaign. - No person shall be arrested and/or detained at any time for any alleged offense committed during and in connection with any election through any act or language tending to support or oppose any candidate, political party or coalition of political parties under or pursuant to any order of whatever name or nature and by whomsoever issued except only upon a warrant of arrest issued by a competent judge after all the requirements of the Constitution shall have been strictly complied with.
CASTING Stage
ALL PUBLIC SCHOOL TEACHERS taken from a list submitted by the highest Department of Education Official within city/municipality/school district. Preference to teachers: with permanent appointment who served in the 2013 national and local elections When NOT POSSIBLE: private school teachers, civil service employees, or registered voters of known probity and competence may be appointed CHAIRMAN (must be a public school teacher)
one (1) member of the BEI shall be an information technology-capable person as certified by the Department of Science and Technology (DOST).
BOARD OF ELECTION INSPECTORS
BEI COMPOSITION
Election officer appoints the BEI members. 168
POSTPONEMENT OF ELECTION When for any serious cause such as violence, terrorism, loss or destruction of election paraphernalia, force majeure, and other analogous causes, the holding of a free, orderly, honest and credible elections shall have become impossible, the Commission on Elections shall motu propio or upon petition by any interested party postpone the election not later than 30 days after the cessation of the cause of the postponement. (Sec. 5, Omnibus Election Code)
FAILURE OF ELECTION If on account of force majeure, violence, terrorism, fraud or other analogous cause election in any precinct was not held or was suspended, or if during the preparation and transmission of the election returns or in the custody or canvass of the election returns, the election results in failure to elect, and the election will affect the outcome of the election, on petition of any interested party, the Commission on Election shall hold special election no later than 30 days after the cessation of the cause. (Sec. 6, Omnibus Election Code).
Who are entitled to TWO WATCHERS in every polling place?
2. REGISTERED political party or coalition of political parties duly registered with the Commission fielding candidates in the election. 3. Duly ACCREDITED CITIZEN’S ARM.
WATCHERS
1. Each INDEPENDENT candidate.
The two watchers shall serve alternately, in every polling place.
171
1. WITNESS and INFORM themselves of the proceedings of the BEI.
3. TAKE PHOTOGRAPHS of the : proceedings and incidents, if any, during the voting and counting of votes
NOTE:
generated election returns
ballot boxes
WATCHERS
2. TAKE NOTE of what they may see or hear.
CANNOT take photographs of ballots in possession of voters. 172
Obtain from the BEI a certificate as to the filing of such protest and the resolution thereof
WATCHERS
File a protest against any irregularity or violation of law which they believe may have been committed by: the BEI any BEI member or any person
173
Whether a certain registered voter has already voted or not As to how many have already voted As to how many so far have failed to vote Any other fact tending to show or showing the state of the polls Any statement at any time, except as witness before a court or body as to how many persons voted
DATE, TIME AND PLACE OF VOTING
During voting, no member of the BEI shall make ANY ANNOUCEMENT as to:
174
2. Watchers who shall stay only in the SPACE RESERVED for them. 3. REPRESENTATIVES of the Commission. 4. TECHNICAL SUPPORT STAFF assigned in the voting center duly designated by the Commission. 5. Voters CASTING their votes. 6. Voters WAITING TO CAST their votes. 7. OTHER persons who may be specifically authorized by the Commission.
DATE, TIME AND PLACE OF VOTING
1. Members of the BEI and SUPPORT STAFF.
175
Officers or Members of the AFP.
2. Officers or Members of the PNP.
3. PEACE OFFICERS or ARMED or UNARMED PERSONS belong to an extra-legal police agency, special forces, strike forces, or civilian armed forces geographical units. 4. BARANGAY TANODS or member of barangay self-defense units. 5. Members of Barangay self-defense units, agencies, bureaus, offices or governmentowned or controlled corporations. 6. Members of privately-owned SECURITY AGENCY.
DATE, TIME AND PLACE OF VOTING
1.
176
1.PROTECTION of the BEI’s and the PCOS Machine. 2.PROTECTION of election documents and paraphernalia. 3.Maintenance of PEACE AND ORDER. Note: They must be in proper uniform and shall stay outside near enough to be easily called by the board.
DATE, TIME AND PLACE OF VOTING
The Board, BY MAJORITY VOTE, order the detail of policemen or peace officers for:
177
COUNTING
Stage
APPRECIATION OF BALLOTS Idem sonans – a name or surname incorrectly written, which, when read, has a sound similar to the name or surname of a candidate when correctly written. Ballots which contain prefixes or suffixes are valid and are not marked ones. Votes in favor of a person who has not filed a certificate of candidacy or office which he did not present himself shall be considered stray but shall not invalidate the whole ballot.
APPRECIATION OF BALLOTS
The Neighborhood Rule. Where the name of a candidate is not written in the proper space in the ballot, but is preceded by the name of the office for which he is a candidate, the vote should be counted as valid for said candidate. Such rule is usually applied in consonance with the intent rule which stems from the principle that in the appreciation of the ballot, the object should be to ascertain and carry into effect the intention of the voter, if it could be determined with reasonable certainty. (Batalla v. COMELEC, G.R. No. 184268, 15 September 2009)
NEW COUNTING Stage (After 6 PM) BEI goes to OMR machine and executes command for counting /printing of results
BEIs digitally signs results
8 copies of ERs printed by the Machines
END
BEI announces the Results of Election in the Precincts
Posting of 8th Copy (local) in the Polling Place
CANVASSING
Stage
PBOC 1. Provincial Election Supervisor or representative of the Commission as Chairman; 2. Provincial Prosecutor as ViceChairman; and 3. District School Superintendent as Member.
CBOC
MBOC
1. City Election Officer or a lawyer of the Commission as Chairman;
1. Election Officer or a representative of the Commission as Chairman;
2. City Prosecutor as Vice-Chairman; and
2. Municipal Treasurer as ViceChairman; and
3. Division Superintendent of Schools as Member.
3. District School Supervisor or in his absence, the most senior Principal of the school district as Member. ART. I, SECS. 3, 4 & 5
PBOC 1 CCS Operator
CBOC DBOC MBOC
QUALIFICATIONS: 1. INFORMATION TECHNOLOGY-CAPABLE person. 2. DEPUTIZED by the Comelec and a GOVERNMENT EMPLOYEE.
3. AUTHORIZED to operate the CCS machine. 4. NOT RELATED within the fourth civil degree of consanguinity or affinity with the board or any candidate. ART. I, SEC. 7
5. PER DIEM is the same as that of the BOC.
1. AUTHORITY TO KEEP ORDER within the canvassing room and its premises 2. ENFORCE OBEDIENCE to its lawful orders. 3.
Order in writing a peace officer/soldier TO TAKE INTO CUSTODY a person who disobey an order or disrupt its proceedings.
4.
Deputize a COMPETENT AND ABLE PERSON to make the arrest. ART. II, SEC. 18
1. CANVASS / CONSOLIDATE the electronically-transmitted results; 2. GENERATE and PRINT the Certificate of Canvass, Certificate of Canvass and Proclamation and Statement of Votes; 3. ELECTRONICALLY TRANSMIT the result; 4. PROCLAIM the winning candidates; and ART. II, SEC. 18
5. PERFORM such other functions as may be directed by the Commission.
ELECTRONIC TRANSMISSION "The election returns transmitted electronically and digitally signed shall be considered as official election results and shall be used as the basis for the canvassing of votes and the proclamation of a candidate.“ R.A. 9369
In case of a Tie a. A tie among two or more candidates for President or Vice President shall be broken by majority vote of both houses of Congress voting separately. (Sec. 4, Art. VII of 1987 Constitution) b. In the case of other positions, the tie shall be broken by the drawing of lots. (Sec. 240, OEC)
Failure to assume Office If a candidate fails to take his oath of office within six (6) months from his proclamation, unless for a cause beyond the control of the elected official, his office will be considered vacant. (Sec. 12, OEC)
Partial Proclamation Notwithstanding the pendency of any pre-proclamation controversy, the COMELEC may summarily order the proclamation of other winning candidates whose election will not be affected by the outcome of the controversy. (Sec. 21, RA 7166)
1996 BAR, Question No. 13 (1-a & 1-b) Q: “A” and “B” were the only candidates for mayor of Bigaa, Bulacan in the May 1995 local elections. “A” obtained 10,000 votes as against 3,000 votes for “B”. In the same elections, “X” got the highest number of votes among the candidates for the Sangguniang Bayan of the same town. “A” died the day before his proclamation. (a) Who should the BOC proclaim as elected mayor, “A”, “B” or “X”?; and (b) Who is entitled to discharge the functions of the office of the mayor, “B” or “X”?
POST ELECTION
Stage
COMELEC
POST-ELECTION REMEDIES: 1. Failure of Elections 2. Pre-Proclamation Controversies 3. Petition to Annul Proclamation 4. Election Contests i. Election Protest -Execution pending appeal ii. Quo Warranto 5. Election Offenses 6. Recall (for Local Elective Officials)
1. FAILURE OF ELECTIONS A VERIFIED Petition filed by any interested person when the election results in failure to elect.
Grounds? If on account of force majeure, violence, terrorism, fraud or other analogous causes election in any precinct was not held or was suspended, or if during the preparation and transmission of the election returns or in the custody or canvass thereof xxx , the election results in failure to elect, and the results will affect the outcome of the election xxx (Sec. 6, Omnibus Election Code).
EFFECT? The Commission on Election shall hold special election no later than 30 days after the cessation of the cause.
2. PRE-PROCLAMATION CONTROVERSIES Refers to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties, before the board or directly with the Commission, or any matters raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns (sec. 241).
COMEMELEC Resolution No. 8804 Rule 3, Section 1. Pre-Proclamation Controversy. xxx refers to the proceedings of the board of canvassers xxx, before the board or directly with the Commission. It covers only two issues: 1. Illegal composition of the Board of Canvassers (BOC); 2. Illegal proceedings of the BOC. The basis of the canvass shall be electronically transmitted results.
COMELEC has exclusive jurisdiction in pre-proclamation controversies arising from national, regional or local elections.
-may be raised by any candidate or by any registered political party, organization, or coalition of political parties before the BOC, or directly with the Commission.
Section 15, RA 7166. For purposes of the elections for President, Vice-President, Senator and Member of the House of Representatives, no pre-proclamation controversies shall be allowed on matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns or the certificate of canvass, as the case may be. xxx
*No pre-proclamation cases are allowed in the
case of barangay elections.
2011 Bar Exam MCQ 55. Xian and Yani ran for Congressman in the same district. During the canvassing, Yani objected to several returns which he said were tampered with. The board of canvassers did not entertain Yani's objections for lack of authority to do so. Yani questions the law prohibiting the filing of preproclamation cases involving the election of Congressmen since the Constitution grants COMELEC jurisdiction over all pre-proclamation cases, without distinction. Is Yani correct?
2011 Bar Exam MCQ
A. Yes, the Constitution grants jurisdiction to COMELEC on all pre-proclamation cases, without exception. B. No, COMELEC’s jurisdiction over pre-proclamation cases pertains only to elections for regional, provincial, and city officials C. No, COMELEC’s jurisdiction over pre-proclamation cases does not include those that must be brought directly to the courts. D. Yes, any conflict between the law and the Constitution relative to COMELEC‘s jurisdiction must be resolved in favor of the Constitution.
1st Ground: RULE 4, Section 1. Illegal Composition of the Board of Canvassers. – xxx when, among other similar circumstances, any of the members do not possess legal qualifications and appointments. The information technology capable person xxx shall be included as among those whose lack of qualifications may be questioned.
2nd Ground: Rule 4, Section 2 - Illegal Proceedings of the Board of Canvassers. - xxx when the canvassing is a sham or mere ceremony, the results of which are pre-determined and manipulated as when any of the following circumstances are present: a) precipitate canvassing; b) terrorism; c) lack of sufficient notice to the members of the BOC's; d) Improper venue
When and Where Commenced? - may be initiated in the BOC or directly with the COMELEC, with a verified petition
- shall be filed immediately when the BOC begins to act as such, or at the time of the appointment of the member xxx, or immediately when the proceedings become illegal.
Section 21. RA 7166 – Partial Proclamation. – Notwithstanding the pendency of any preproclamation controversy, the Commission may summarily order the proclamation of other winning candidates whose election will not be affected by the outcome of the controversy.
Rule 6, Section 6. Pendency of preproclamation controversy. - The pendency of a pre-proclamation controversy involving the validity of the proclamation as defined by law shall suspend the running of the period to file an election protest.
2011 Bar Exam MCQ 37. Pre-proclamation controversies shall be heard: A. Summarily without need of trial. B. through trial by commissioner. C. ex parte. D. through speedy arbitration.
2011 Bar Exam MCQ 55. Xian and Yani ran for Congressman in the same district. During the canvassing, Yani objected to several returns which he said were tampered with. The board of canvassers did not entertain Yani's objections for lack of authority to do so. Yani questions the law prohibiting the filing of preproclamation cases involving the election of Congressmen since the Constitution grants COMELEC jurisdiction over all preproclamation cases, without distinction. Is Yani correct?
2011 Bar Exam MCQ 55. Is Yani correct? A. Yes, the Constitution grants jurisdiction to COMELEC on all pre-proclamation cases, without exception. B. No, COMELEC’s jurisdiction over pre-proclamation cases pertains only to elections for regional, provincial, and city officials C. No, COMELEC’s jurisdiction over pre-proclamation cases does not include those that must be brought directly to the courts. D. Yes, any conflict between the law and the Constitution relative to COMELEC‘s jurisdiction must be resolved in favor of the Constitution.
3. PETITION TO ANNUL PROCLAMATION - Pre-proclamation controversy discovered only after proclamation
If the illegality of the proceedings of the BOC is discovered after the official proclamation of the supposed results, a verified petition to annul the proclamation may be filed before the COMELEC within ten (10) days after the day of proclamation. Upon receipt of the verified petition, the Clerk of the Commission shall have the same docketed and forthwith issue summons to the parties to be affected by the petition, with a directive for the latter to file their answer within five (5) days from receipt. Thereafter the case shall be deemed submitted for resolution, which shall not be later than seven (7) days from receipt of the answer.
The period to file an election protest is suspended by the filing of a petition to annul the proclamation of the winner. (Manahan vs. Bernardo, 283 SCRA 505)
4. ELECTION CONTESTS A. Election Protest -
A petition contesting the elections or returns of an elective public official.
WHO MAY FILE ELECTION PROTEST? – any candidate who was voted for in the same office who received the second (2nd) or third (3rd) highest number of votes; in multi-slot position, among the next four (4) candidates following the last ranked winner duly proclaimed, as reflected in the Statement of Votes (SOV)
GROUNDS? Electoral fraud, anomalies or irregularities in protested precincts ISSUE: “Who obtained the highest legal votes”
JURISDICTION?
a. President & Vice-Pres. – Supreme Court en banc (sitting as the P.E.T.) [Sec. 4, Art. VII, 1987 Constitution) b. Senators – S.E.T. [Sec. 17, Art. VI, 1987 Constitution) c. Congressman – H.R.E.T. [Ibid.] d. Autonomous Region, Provincial, City COMELEC (any of the 2 divisions) [Sec. 2(2), Art. IX-C, 1987 Constitution] e. Municipal – R.T.C. f. Barangay – M.T.C.
APPEAL?
Decisions of the MTC and the RTC are appealable to the COMELEC (Sec. 2[2], Art. IX-C, 1987 Constitution). Said decision of the COMELEC may be brought to the SC on certiorari on questions of law. Decisions of the COMELEC may be brought to the SC on certiorari. Decisions of the SET and HRET may be elevated to the SC on certiorari if there was grave abuse of discretion.
What to file? Verified Election Protest (10 legible copies + number of protestee/s) with Certificate of Non-forum Shopping (CNFS) PERSONAL Service and Filing
When to file? Non-extendible ten (10 )days from proclamation. (30 days – P.E.T. Rules; 15 days S.E.T. Rules)
Payment of COMELEC Docket Fees is jurisdictional and mandatory
PARTIES? Protestant vs. Protestee (Protestant may assume office after the protestee is unseated)
If the protestee has resigned or accepted an appointment, the protest should continue. If the protestee died, he should be substituted by his successor. If it is the protestant who died, he should be substituted by the public official who would have succeeded him.
An election protest which does not specify the precinct where the alleged irregularities occurred is fatally defective. (Pena vs. HRET, 270 SCRA 34).
Execution pending appeal On motion of the prevailing party with notice to the adverse party, the court, while still in possession of the original records, may, at its discretion, order the execution of the decision in an election contest before the expiration of the period to appeal, subject to the following rules: (a) xxx three-day notice xxx. There must be good reasons xxx. The court, in a special order, must state the good or special reasons justifying the execution pending appeal.
Good or special circumstances? (1) constitute superior circumstances demanding urgency that will outweigh the injury or damage should the losing party secure a reversal of the judgment on appeal; and (2) be manifest, in the decision sought to be executed, that the defeat of the protestee or the victory of the protestant has been clearly established.
TRO or Status Quo Order? (b) If the court grants an execution pending appeal, an aggrieved party shall have twenty (20) working days from notice of the special order within which to secure a restraining order or status quo order from the Supreme Court or the Commission on Elections. The corresponding writ of execution shall issue after twenty days, if no restraining order or status quo order is issued. During such period, the writ of execution pending appeal shall be stayed.
Execution pending appeal may be ordered on the basis of the combination of two or more of the following reasons: (1) public interest or the will of the people; (2) the shortness of the remaining portion of the term of the contested office; and (3) the length of time that the election contest has been pending. (Navarosa vs. COMELEC, G.R. No. 157957, 18 September 2003) xxx and the filing of a bond are good reasons for ordering execution pending appeal in favor of the protestant. (Alvarez vs. COMELEC, 353 SCRA 434)
B. Quo Warranto -a petition to disqualify an elective official under Section 68 of the Omnibus Election Code or Section 40 of the Local Government Code
WHO MAY FILE? – Any registered voter in the constituency
Grounds? Ineligibility or disloyalty to the Republic ISSUE: “Qualifications or lack thereof of the winning candidate”
JURISDICTION? a. President & Vice-Pres. – Supreme Court en banc (sitting as the P.E.T.) [Sec. 4, Art. VII, 1987 Constitution) b. Senators – S.E.T. [Sec. 17, Art. VI, 1987 Constitution) c. Congressman – H.R.E.T. [Ibid.] d. Autonomous Region, Provincial, City - COMELEC (any of the 2 divisions) [Sec. 2(2), Art. IX-C, 1987 Constitution] e. Municipal – R.T.C. f. Barangay – M.T.C.
APPEAL? Decisions of the MTC and the RTC are appealable to the COMELEC (Sec. 2[2], Art. IX-C, 1987 Constitution). Said decision of the COMELEC may be brought to the SC on certiorari on questions of law. Decisions of the COMELEC may be brought to the SC on certiorari. Decisions of the SET and HRET may be elevated to the SC on certiorari if there was grave abuse of discretion.
What to file? Verified Petition for Quo Warranto (10 legible copies) with CNFS
PERSONAL Service and Filing
When to file? Non-extendible 10 days from proclamation Pendency of a PPC shall suspend the running of the period. (10 days – P.E.T. Rules; 10 days S.E.T. Rules) Payment of COMELEC Docket Fees is jurisdictional and mandatory
Parties?
Petitioner vs. Respondent (If the respondent is ousted, the petitioner will not be seated)
COMELEC FILING FEES The filing fee must be paid within the 10-day period. This defect cannot be cured by subsequent payment (Melendres vs. COMELEC, G.R. No. 129998, 25 November 1999). Non-payment or partial (or incomplete) payment of filing/ docket fees for election protests is a fatal defect. In which case, the election protest should be dismissed (Soller vs. COMELEC, G.R. No. 139853, 05 September 2000). In the same way, a petition for quo warranto may be dismissed by the House of Representatives Electoral Tribunal if the required cash deposit is not paid (Garcia vs. HRET, G.R. No. 134792, 12 August 1999).
2006 BAR, Question No. V (3) Q: Differentiate an election protest from an action for quo warranto.
2001 BAR, Question No. XVII Q: Under the B.P. 81, as amended, briefly differentiate an election protest from quo warranto case, as to who can file and the respective grounds therefor. 1997 BAR, Question No. 17 (b); 1996 BAR Question No. 14 [1]; 1998 BAR Question No. 18 Q: State how election protests are initiated heard and finally resolved.
2012 ESSAY QUESTIONS IV. Mr. Yellow and Mr. Orange were the leading candidates in the vice-presidential elections. After the elections, Yellow emerged as the winner by a slim margin of 100,000 votes. Undaunted, Orange filed a protest with the Presidential Electoral Tribunal (PET). After due consideration of the facts and the issues, the PET ruled that Orange was the real winner of the elections and ordered his immediate proclamation. a. Aggrieved, Yellow filed with the Supreme Court a Petition for Certiorari challenging the decision of the PET alleging grave abuse of discretion. Does the Supreme Court have jurisdiction? Explain. (3%) b. Would the answer in (a.) be the same if Yellow and Orange were contending for a senatorial slot and it was the Senate Electoral Tribunal (SET) who issued the challenged ruling? (3%) c. What is the composition of the PET (2%) d. What is judicial power? Explain Briefly. (2%)
1990 BAR, Question No. 7 (1) Q: Charles Cabrera filed a petition for “quo warranto” with the HRET questioning the election of Pao Escober as Member of the House of Representatives in the 1987 national elections on the ground that Pao is not resident of the district the latter is representing. While the case was pending, Pao accepted an ad-interim appointment as Secretary of Department of Justice. May Charles continue with his “election protest” in order to determine the real winner in the said elections?
Motion for Reconsideration in Election Contests* Evidence is insufficient or Decision is contrary to law * Except Municipal & Barangay
When to file MR? Within five (5) days from promulgation * if not pro forma, suspends the execution or implementation, of the decision, resolution, order or ruling. i. President & Vice President – 10 days (Rule 69, Rules of PET) ii. Senator – 10 days (Rule 80, Revised Rules of SET) iii. Congressman – 10 days (Rule 72, Rules of HRET)
Prohibited Pleadings in Election Contests? a) Motion to dismiss except on the ground of lack of jurisdiction over the subject matter; b) Motion for a bill of particulars; c) Demurrer to evidence; d) Motion for new trial, or for reopening of trial; e) Petition for relief from judgment; f) Motion for extension of time to file pleadings, affidavits or other papers; g) Memoranda, except when required by the Commission in an Order; h) Motion to declare the protestee or respondent in default; i) Dilatory motion for postponement; j) Motion to inhibit the Commissioner/s except on clearly valid grounds; k) Reply or rejoinder; and l) Third-party complaint.
5.) Election Offenses -Criminal cases committed during the election period
JURISDICTION? To INVESTIGATE and PROSECUTE: COMELEC or duly authorized legal officer (concurrent with other prosecuting arms of the government [RA9369])
To TRY and DECIDE to case: Court
Regional Trial
2011 Bar Exams MCQ
51. A candidate who commits vote buying on Election Day itself shall be prosecuted by the A. COMELEC B. Secretary of Justice. C. police and other law enforcement agencies. D. City or Provincial Prosecutor.
Prescription of the Offense? – Five (5) years from commission (Sec. 267, OEC) If discovered in an election contests = 5 years when judgment becomes final and executory.
Some Election Offenses: 1. Prohibited acts under Sections 261 & 262, OEC; Vote-Buying Conspiracy to bribe voters Wagering upon result of election Coercion of subordinates Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion Coercion of election officials and employees Appointment of New Employees Transfer of Government Employees Intervention of public officers and employees Undue influence Unlawful electioneering Carrying Firearm during Election Period Carrying Deadly Weapon in Precinct Unauthorized Entry into Polling Place Failure to Make Proclamation Granting Remuneration to Government Employee
Some Election Offenses: Section 261. (a) Vote buying and vote selling, and (b) Conspiracy to bride voters: Any person who is guilty and willingly testifies shall be exempt from prosecution (Sec. 28, R.A. 6646) Can he be liable for Perjury? False testimony?
PROHIBITED 90 Days BEFORE Elections
Giving donations or gift in cash or in kind, etc. (Sec. 104, OEC). Appointment or use of special policemen, confidential agents or the like. (Sec. 261 (m), OEC)
PROHIBITED 45 Days BEFORE Elections Appointment or hiring of new employees; creation or filling up of new positions; promotion or giving of salary increases, remuneration or privilege. (Sec. 261 (g), OEC). Construction of public works, delivery of materials for public works and issuance of treasury warrants or similar devices for a future undertaking chargeable against public funds. Sec. 261 (w), OEC). Release disbursement or expenditures of public funds. (Sec. 261 (v), OEC).
PROHIBITED (60 days before & 30 days after) Illegal release of prisoners. (Sec. 261 (n), OEC). (n) Illegal release of prisoners before and after election. - The Director of the Bureau of Prisons, any provincial warden, the keeper of the jail or the person or persons required by law to keep prisoners in their custody who illegally orders or allows any prisoner detained in the national penitentiary, or the provincial, city or municipal jail to leave the premises thereof sixty days before and thirty days after the election. The municipal or city warden, the provincial warden, the keeper of the jail or the person or persons required by law to keep prisoners in their custody shall post in three conspicuous public places a list of the prisoners or detention prisoners under their care. Detention prisoners must be categorized as such.
Some Election Offenses: Section 261. Prohibited Acts. - The following shall be guilty of an election offense: xxx (w) Prohibition against construction of public works, delivery of materials for public works and issuance of treasury warrants and similar devices. - During the period of forty-five days preceding a regular election and thirty days before a special election, any person who (a) undertakes the construction of any public works, except for projects or works exempted in the preceding paragraph; or (b) issues, uses or avails of treasury warrants or any device undertaking future delivery of money, goods or other things of value chargeable against public funds.
Controlling Jurisprudence:
The Supreme Court in Robert P. Guzman v. Commission on Elections, Mayor Randolph S. Ting and Salvacion Garcia (G.R. No. 182380, 28 August 2009) applied a literal interpretation of the foregoing provision so as to include a broader scope of prohibited acts. The Supreme Court found that the issuance of the treasury warrant during the period of the election ban violated Section 261 (w) of BP 881 holding that whether or not the treasury warrant in question was intended for public works was of no moment in determining if the legal provision was violated.
Taken From the OLD Election Code: Sec. 64. Prohibited acts. — In addition to the prohibited acts provided in the 1978 Election Code, or declared unlawful or as an election offense in the preceding articles of this Act, the following shall be guilty of an election offense: xxx (d) Prohibition against construction of public works, delivery of materials for public works and issuance of treasury warrants and similar devices. — During the period of forty-five days preceding the election of May 14, 1984, any person who (a) undertakes the construction of any public works, except for projects or works exempted in the preceding section; or (b) issues, uses or avails of treasury warrants or any device undertaking future delivery of money, goods or other things of value chargeable against public funds; or (c) who thereafter receives any payment for the prohibited construction. (B.P. 697)
DOUBLE REGISTRANTS ELECTION OFFENSE (Section 261 (y [5]), of the OEC):
Section 261. Prohibited Acts. - The following shall be guilty of an election offense: xxx xxx xxx (y) On Registration of Voters: xxx xxx xxx (5) Any person who, being a registered voter, registers anew without filing an application for cancellation of his previous registration.
Eve of Election Day Campaigning. (Sec. 5, RA 7166) Selling, furnishing, offering, buying serving or taking intoxicating liquor. (Sec. 261 (dd), OEC.) Giving, accepting free transportation, food, drinks and things of value (Sec. 89, OEC).
Election Days COMELEC Reso 9981
09 April 2016 (8:am of host country) to 09 April 2016 (Philippine time) – Casting of votes by overseas voters 27, 28, & 29 April 2016 – Voting by local absentee voters 09 May 2016 – Election Day (Philippines)
Election Day Campaigning (Sec. 5, RA 7166) Selling, furnishing, offering, buying serving or taking intoxicating liquor. (Sec. 261 (dd), OEC.) Giving, accepting free transportation, food, drinks and things of value (Sec. 89, OEC).
Voting more than once or in substitution of another (Sec. 261 (z) (2) and (3), OEC).
ELECTION DAY Soliciting votes or undertaking any propaganda for or against any candidate or any political party within the polling place or within 30 meters thereof. (Sec. 261 (cc), OEC). Opening of booths or stalls for the sale, etc., of merchandise, or refreshments within a radius of thirty (30) meters from the polling place (Sec, 261 (dd) (2), OEC.) Holding of fairs, cockfights, boxing, horse races or any other similar sports. (Sec. 261 (dd) (3), OEC).
2. RA 6646, Section 27 (“Dagdag- Bawas”)
3. RA 7166, Sections 32, 33 & 34 (Firearms) 4. RA 8046, Section 23 (computer related offenses) 5. RA 8189, Section 45 (any violation thereof) 6. RA 9006, Section 13 (any violation) 7. RA 9369, Section 42 (“Special” Election Offense – Electoral Sabotage)
GUN BAN In Orceo vs. COMELEC, G.R. No. 190779, 26 March 2010, where a petition for certiorari was filed questioning the validity of COMELEC Resolution No. 8714 insofar as it provides that the term "firearm" includes airsoft guns and their replicas/imitations, the Supreme Court ruled:
“The inclusion of airsoft guns and airguns in the term "firearm" in Resolution No. 8714 for purposes of the gun ban during the election period is a reasonable restriction, the objective of which is to ensure the holding of free, orderly, honest, peaceful and credible elections. However, the Court excludes the replicas and imitations of airsoft guns and airguns from the term "firearm" under Resolution No. 8714, because they are not subject to any regulation, unlike airsoft guns.”
In addition to the prohibited acts and election offenses mentioned herein and those enumerated in Sections 261 and 262 of Batas Pambansa Blg. 881 as amended, the following shall be guilty of an election offense or a special election offense to be known as electoral sabotage: A. Any person who commits any of the following:
REMOVES the COC posted on the wall; or DEFACES the same in any manner. B. Any person who SIMULATES:
Actual COC; or An SOVs; or A PRINT or DIGITAL COPY thereof.
C. Any person who SIMULATES the :
Certificate of Canvass; Statement of Votes. D. Any member of the Board who during the prescribed period of posting, REMOVES:
Certificate of Canvass; or its Supporting statement of votes from the wall except to transfer them to a more SUITABLE PLACE.
E. Any member of the Board who SIGNS or AUTHENTICATES the following outside of the polling place:
Print of the Certificate of Canvass; or its supporting Statement of Votes. F. Any member of the Board who SIGNS or AUTHENTICATES a print which bears an IMAGE DIFFERENT from the Certificate of Canvass or Statement of Votes produced after counting and posting on the wall. (Sec. 27 [b], RA 6646)
special election offense to be known as electoral sabotage: SEC. 42. xxx a
"(a) x x x "(b) Any person or member of the board of election inspectors or board of canvassers who tampers, increases or decreases the votes received by a candidates in any election or any member of the board who refuses after proper verification and hearing ,to credit the correct votes or deduct such tampered votes: Provided, however, xxx are perpetrated on large scale or in substantial numbers, the same shall be considered not as an ordinary election offense under Section 261 of the omnibus election code. But a special election offense to be known as electoral sabotage and the penalty to be imposed shall be life imprisonment.
"(1) xxx , is/are committed in the election of a national elective office which is voted upon nationwide xxx , shall adversely affect the results of the election to the said national office to the extent that the losing candidate/s is /are made to appear the winner/s;
"(2) Regardless of the elective office involved, xxx , is a accomplished in a single election document or in the transposition of the figure / results xxx votes exceed five thousand (5,000) votes, and that the same adversely affects the true results of the election ;
"(3) Any and all other forms or tampering increase/s and/ or decrease/s of votes perpetuated or in cases of refusal to credit the correct votes or deduct the tampered votes, where the total votes involved exceed ten thousand (10,000) votes; “xxx in conspiracy or in connivance with the members of the BEIs or BOCs involved, shall be meted the same penalty of life imprisonment."
PENALTY? Punishable with one (1) to six (6) years imprisonment without probation + Disqualification to hold public office and deprivation of the right to vote
1991 BAR, Question No. 11 [a & b] Q: In connection with the May 1987 Congressional elections, Luis Millanes was prosecuted and convicted of an election offense and was sentenced to suffer imprisonment for six years. The court sis not impose the additional penalty of disqualification to hold public office and of deprivation the right of suffrage as provided for in Section 264 of B.P. 881 In April 1991, the President granted him absolute pardon on the basis of a strong recommendation of the Board of Pardons and Parole. Then for the election in May 1992, Luis Millanes files his certificate of candidacy for the office of Mayor in his municipality. What is the effect of the failure of the court to impose the additional penalty? Is the Pardon valid?
6. RECALL*
A mode of removal of an local elective public officer by the people before the end of his term of office
* Only for LOCAL elective officials
Initiation? **a. Resolution of majority of all members of preparatory recall assembly (P.R.A.) (P.R.A. NO LONGER ALLOWED UNDER R.A.9244) b. Petition of at least 25% of the registered voters in the local government unit (Sec. 70, LGC)
The official sought to be recalled is automatically a candidate. (Sec. 71)
Recall shall be effective upon proclamation of successor receiving the highest number of votes. (Sec. 72) The official sought to be recalled cannot resign during the recall. (Sec. 73)
Limitations? a. An official may be subject of recall only once during his term. b. No recall shall take place within one year from assumption of office or one year before the regular local election. (Sec. 74)
IMPEACHMENT! A national inquest into the conduct of public officials.
WHO MAY BE IMPEACHED? President, Vice-President, Chief Justice and Associate Justices of the Supreme Court, Chairmen and Members of the Constitutional Commissions, and the Ombudsman
Grounds? Culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.
Procedure? The House of Representatives shall have exclusive power to initiate all cases of impeachment. 1. Verified Complaint (Member of HR or any citizen + endorsement) 2. Order of business within 10 days + Committee within 3 days (if filed by 1/3 Members = Articles of Impeachment) 3. Committee submit report within 60 session days. 4. Vote of at least 1/3 of all Members.
Limitation? Not more than once within a period of one year against the same official.
Trial and Decision? The Senate shall have the sole power to try and decide all cases of impeachment. A decision of conviction must be concurred in by at least 2/3 of all members of the Senate.
THE END Don’t Stop Believing!
[email protected] / 09189RYANSQ Former Associate Dean, San Sebastian College of Law Former Bar Review Director and Special Lecturer, Recoletos Review Center-Manila Law Professor, San Sebastian College-Recoletos (on leave) Bar Review Lecturer, Jurists Bar Review , Luminous Bar Review, Power House, Legal Advantage, Universidad de Manila, Philippine Christian University, DVOREF Law MCLE Lecturer, UB, UELCI, OGCC-ICPG, Jurists, IBP-Makati Lecturer, NBI Academy Assisting anchor, Radyo Veritas 846 AM PDP-Laban, Legal Counsel/VP Legal Affairs (2010-2011)
Former Chief Legal & Legislative Affairs, Office of Sen. Aquilino “KOKO” Martin L. Pimentel III
