Admin Election

ADMINISTRATIVE LAW BY ATTY. RAUL B. MARIFOSQUE

ADMINISTRATIVE LAW Is that part of the law which governs the organization, functions, and procedures of administrative agencies of the government to which quasi- legislative powers are delegated and quasi- judicial powers are granted, and the extent and manner to which such agencies are subject to control by the court.

SCOPE OF ADMINISTRATIVE LAW (A) The law which fixes the administrative organization and structure of government. (B) The execution or enforcement of which is entrusted to administrative authorities. (C) The law which governs public officers including their competence rights, duties, liabilities, election, etc. (D) The law which creates administration agencies, defines their powers and functions, prescribes their procedures, including the adjudication or settlement by them of contested matters involving private matters. (E) The law which provides the remedies, administrative or judicial, available to those aggrieved by administrative actions or decisions. (F) The law which governs judicial review of, or relief against, administrative actions or decisions. (G) The rules, regulations, orders and decisions (including presidential proclamations) made by administrative authorities dealing the interpretation and enforcement of the laws entrusted to their administration. (H) The body of judicial decisions and doctrines with any of the above.

SOURCES OF ADMINISTRATIVE LAW - the origin of admin law is in legislation and its justification is expediency. (1) Constitutional or statutory enactments creating administrative bodies. e.g. Art IX Constitutional Commissions Social Security System, Admin Code of 1987 of E.D. no. 292, P.D. 902, 902-A. (SEC) (2) Decisions of Courts interpreting the charter of Admin Bodies and defining their powers, rights, inhibitions, among others and the effects of their determinations and regulations.

Aratuc vs COMELEC

88 SCRA 251 Maceda vs. Energy Regulatory Board 192 SCRA 1990 (3) Rules and Regulations issued by the Admin Bodies in pursuance of the purposes for which they are created. e.g. Omnibus Rules implementing the Labor Code by DOLE, circulars of the monetary board on interest rates and other rule- making power of the SEC. (4) Determination and orders of the Admin Bodies in the settlement of controversies arising in their respective fields. e.g. the ad judicatory powers of the NLRC on money claims etc.

*What is and administrative agency? -It is described as a body endowed with quasi- legislative and quasi- judicial powers for the purpose of enabling it to carry out laws entrusted to it for enforcement or execution.

*What is the nature of an administrative agency? -Basically this agency pertains to the executive department because its principal function is the implementation of the law in accordance with the policies and instructions laid down by the legislative. Hence, (A) It may be regarded as an arm of the legislative in so far as it is authorized to promulgate rules by virtue of a valid delegation of legislative power; and (B) It may loosely considered a court because it performs functions of a particular judicial character as when it decides factual and sometimes even legal questions as an incident of its general power of regulation. (cited in the Book of Justice, Isagani Cruz p.12)

*The criterion in determining whether a body or agency is administrative or not. - They are created by: (1) Constitutional provisions Ex. Constitutional Commissions (2) Legislative enactments Ex. NLRC, SEC, NHA, etc. (3) Authority of Law Ex. MMDA

*Can administrative bodies be altered or abolished? -Yes. (A) For those created by legislations and authority of law, they can be abolished anytime; However (B) If constitutionally created, abolition must be done by proper amendment of the constitution under Art. XVII.

*Power of Administrative Bodies (A) Quasi- Legislative (or rule- making power) (B) Quasi- Judicial power (ad judicatory power) (C) Determinative power (or incidental power)

*Quasi- Legislative Power -It is the authority delegated by the lawmaking body to the administrative body to adopt rules and regulations intended to carry out the provisions of a law and implement legislative policy.

*Quasi- Judicial Power -Defined as the power of the administrative authorities to make determinations of facts in the performance of their official duties and to apply the law as they construl it to the facts so found.

*Determinative Powers -They are the powers incidental to the exercise of its quasi- judicial authority. They are classified: (A) Enabling Powers- those that permit the doing of an act which the law undertakes to regulate and which would be unlawful without government approval. Ex. Issuance of liquor and business permit, approval by SEC of Articles of Inc. etc. (2) Directing Powers- powers directing the doing or performing of particular acts insuring compliance with the law and are exercised for corrective purposes. Ex. Certification of Environmental Compliance by factories, Compliance of Seatbelt

*The nature of exercise of powers by the administrative body or agency or officer.

-It may either be discretionary or ministerial.

*Administrative Rule -Any agency statement of general applicability that implements or interprets a law, fixes and describes the procedures in, or practice requirements of an agency, including its regulations. Ex. Memoranda or Statement Concerning the internal administration

*Rule- Making -It means an agency process for the formulation, amendment or repeal of a rule.

*Is rule- making (quasi- legislative) identical with the legislative power? -No. The power to issue admin rules and regulations is different from powers to promulgate laws. Admin rules is only intended to implement the law and to carry out the legislative policy.

*How Binding are the Administrative regulations and policies issued by Administrative Body? -It is enacted by administrative body to interpret the law have the force and effect of law and are entitled to great respect, they are bending on all persons subject to them, and the court will take judicial notice of them. (Sierra Madre Trust vs. Sec of Agriculture and Natural Resources, 121 SCRA 384)

*The requisites in order that the exercise of quasi- legislative power (Ex. Issuance of Administrative regulations) be valid? -For validity, the administrative regulations must comply with the following requisites: (1) Issued or its promulgation must be authorized by law/ legislation. (Osen vs. Aldanese) 43 Phil 64 (2) It must be within the scope or purview of the authority given by the legislature; it must not be ultra vires or beyond the limits of the authority conferred because an administrative agency can not amend an act of congress. (Bote- Takeda Chemicals vs. dela Serna) 228 SCRA 329 (3) It must be prescribed in accordance with the prescribed procedure. e.g. Public notice and hearing are not required unless legislation requires. e.g. Fixing toll rates charge of ERB

(4) It must be reasonable. -Must not be violative of due process. *Lumangco vs. CA 160 SCRA 848 *Taxicab Operators of Metro Manila vs. Bot 11 SCRA 597 *Philippine Association of Service Exporters Inc. vs. Torre 212 SCRA 298 (5) Admin Rules with penal sanctions must comply with the following requisites: (A) The law must itself declare as punishable the violation of the Admin rule or regulation. (B) The law should define or fix the penalty for the violation of the admin rule or regulation. (C) The regulation must be published. Pesigan vs. Angeles 129 SCRA 174

*Are the subpoena and contempt power inherent in Administrative Bodies? -No. Unless expressly conferred by law are not inherent power being judicial in nature. Manalo vs. Roldan- Confesor 215 SCRA 808

*Are there Admin proceedings or determination where notice and hearing are not necessary as part of due process? -Yes. Ex. (A) Grant of Provisional Authority for Increased rates on engaged in a particular business. RCPI vs. NTC 185 SCRA 517 PLDT vs. NTC 190 SCRA 717 (B) Summary proceedings of distraint and levy upon the property of a delinquent taxpayer.

(C) Cancellation of a passport where no abuse of discretion is committed by the Secretary of Foreign Affairs. Suntay vs. People 101 Phil 770 (D) Summary abatement of nuisance per se which affects the immediate safety of persons of property. Art. 704 Civil Code

*Is the doctrine of res judicata applicable to admin decisions or orders? -It is well settled in our jurisprudence that if it attained finality, the same have force and effect of res judicata.

ADMINISTRATIVE REMEDIES AND REVIEW

*Rule or Doctrine Exhaustion of Admin Remedies. -Requires that when an administrative remedy is provided by law relief must be sought by exhausting the remedy before the courts may act.

*Two Doctrines (A) Prior Resort- doctrine of primary administrative jurisdiction is one where there is competent jurisdiction vested upon the admin agency or bodies to act upon a matter. (Industrial Enterprises vs. CA) 184 SCRA 426

(B) Doctrine of finality of admin action- means no resort to court will be allowed unless the admin action has been completed and there is nothing left to be dont. (Sta. Rosa Ming vs. Leido) 156 SCRA 1

Doctrine of Primary Jurisdiction Courts can not and will not determine a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discution requiring special knowledge, experiences and services, etc.

*Are administrative officers tasked to implement a law also authorized to interpret the law? Why? -Yes, because they have the expertise to do so. In a long line of cases, the SC reasoned out by saying that to deprive administrative bodies of that power to interpret would be to defeat the law. The law will practically be nullified and will remain unenforced because of inaction.(PLDT vs. NTC, 190 SCRA 717 [1990]; Atlas Consolidated Mining and Dev’t. Corp. vs. CA, 182 SCRA 166 [1990])

*If the administrative offices can interpret the law, are they binding? -Yes, such interpretations by officers given the task to implement the law are given great weight (Atlas Consolidated Case; Gonzales vs. Land Bank, 183 SCRA 520), unless such construction is clearly shown to be in sharp contrast with the governing law or statute. (Nestle Phils., Inc. vs. CA, 203 SCRA 504 [1991]). The rationale for this rule relates not only to the emergency of the multifarious needs of a modern or modernizing society and the establishment of diverse administrative agencies for addressing and satisfying those needs; it also relates to accumulation of experience and growth of specialized capabilities by the administrative agency charged with implementing a particular statute. (Nestle Phils., Inc. vs. CA, GR. No. 86738, November 18, 1991, 203 SCRA 504; CEMCO Holdings, Inc. vs. National Life Assurance Co. of the Philippines., Inc., GR. No. 171815, August 7, 2007).

*What is the concept of administrative adjudication or quasi- judicial power? -It is the power to hear and determine or ascertain facts and decide by the application of rules of law to the facts and the enforcement and administration of law.

*What are the requisites of administrative adjudication? -They are: (1) Jurisdiction; (2) Notice; and (3) Hearing.

*What are the grounds for judicial review of administrative determination? -They are: (1)

When the act is beyond the powers vested in the administrative agency;

(2)

When the determination is without or in excess of authority;

(3)

In case of arbitrary or unreasonable exercise of power; and

(4)

When the determination is based on error of law.

*Is the doctrine of res judicata applicable in administrative cases? Explain. -Yes, in order to put to final rest a decision which has become final and executory. (San Luis vs. CA, 174 SCRA 258; Nasipit Lumber vs. NLRC, 177 SCRA 93; Puma Sportschufabrilon Rudolf Dassler vs. Madayag, 189 SCRA 592 [1990]).

*Is judicial review of administrative decisions a trial de novo? Why?

-No. it is merely an ascertainment of whether the executive findings are not in violation of the Constitution or the laws. The Court merely determines that the findings are free from fraud or imposition or whether they find reasonable support in the evidence. (Lovina vs. Moreno, G.R. No. L-17821, November 29, 1963)

ELECTION LAWS

BY ATTY. RAUL B. MARIFOSQUE

*Suffrage -It means the right to vote in an election of all officers chosen by the people and in the determination of all questions submitted to the people.

*The Governing Election Law in the Philippines Ans. Sources: (A) Pre- Commonwealth Election Law covering period from 1907- 1935. (B) R.A. 180 (Revised Election Code as amended by R.A. 599, 867 etc. (C) Election Law after martial law. (D) Various Resolution passed by the COMELEC implementing the election laws during their respective times. (E) Decisions and legal jurisprudence by the Supreme Court.

*COMELEC Powers and Functions As provided in the Constitution (A) Admin and Supervision of elections (B) Promulgate rules and regulations

*Kinds of Elections (A) General or Regular (B) Special Election *System of Voting under Election Law -Australian ballot system *Voting of En Banc COMELEC Members -Majority of all its members *Has the COMELEC the power to annul illegal registry lists of voters? -Yes. (Prudente vs.Genium Nov. 6, 1951) as this is within the constitution power of the COMELEC.

*Does COMELEC have the power to cancel the canvass of election returns of the Board of Canvassers? -Yes. (Abante vs. Relato GR No. L6813/1953)

*Has the COMELEC the power to decide questions involving the right to vote? -This is expressly withheld from the COMELEC. (Nacionalista Party vs. COMELEC). *Does the COMELEC have the power to investigate and prosecute election officers? -Yes. A. Pimentel vs. COMELEC 98 SCAD 37 (1998) *How will the COMELEC deliberate in election cases? -It may sit En Banc or in two divisions and shall promulgate its own rules and regulations to expedite the disposition of cases including pre- proclamation cases. *When may the Supreme Court Review orders of COMELEC? -Illegal or constitute gross abuse of discretion. (SUMULONG vs. COMELEC) *When can an election take place? -If it is expressly provided by law. (Garchitorena vs. Cresine 39 Phil. 258) *Who has the power to declare a failure of election. -COMELEC (Loong vs. COMELEC 70 SCAD 626) *May a Political Party participate in the party- list election? -Yes. Under the Constitution and R.A. 7941 (Bayan Muna vs. COMELEC) June 26, 2001

*What is the effect of filing a certificate of candidacy by a person holding public appointive office or position? -Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and 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. (Sec. 66 Art. IX, B.P. Blg. 881) *What is the effect of the filing of a certificate of candidacy by an elective provincial, municipal or city officials?

-Any elective official, whether national or local, who has filed a certificate of candidacy for the same or any other office shall no be considered resigned from office. (Sec. 23, COMELEC Resolution No. 3636, Rules and Regulations Implementing R.A. No. 9006 otherwise known as “Fair Election Act” for the May 14, 2001 National and Local Elections). *Does the fact that a person is registered as a voter in one district prove that he is not domiciled in another district? Why? -No. The fact that a person is registered as a voter in one district is not proof that he is not domiciled in another voter in a place other that his residence of origin is not sufficient to consider him to have abandoned or lost his residence. (Marcita Mamba Perez vs. COMELEC, G.R. No. 133944, October 28, 1999 citing Faypon vs. Quirino, 96 Phil. 294). Well- settled is the rule that residence is synonymous with domicile.

*Is there a constitutional right to run for or hold public office? Explain. -None. What is recognized is merely a privilege subject to limitations imposed by law. Section 26, Article II of the Constitution neither bestows such a right nor elevates the privilege to the level of an enforceable right. There is nothing in the plain language of the provision which suggests such a thrust of justifies an interpretation of the sort. -The “equal access” provision is not self- executing, and there is no plausible reason for according a different treatment to the “equal access” provision. Like the rest of the policies enumerated in Article II, the provision does not contain any judicially enforceable Constitutional right but merely specifies a guideline for legislative or executive action. The disregard of the provision does not give rise to any cause of action before the courts. (Rev. Elly Pamatong vs. COMELEC, G.R. No. 161872, April 13, 2004) *Why does the law reserve the right to run for public office only to citizens of the Philippines? -This is so because the assumption is that those who are resident aliens of a foreign country are incapable of such entire devotion to the interest and welfare of their homeland for with one eye on their duties here, they must keep another eye on their duties under the laws of the foreign country of their choice in order to preserve their status as permanent residents thereof. (Caasi vs. CA, G.R. No. 88831; COMELEC vs. Miguel, G.R. No. 84508, November 8, 1990). *Who is a substitute candidate? -A substitute candidate is one who takes the place of another who is no longer a candidate, otherwise, the former would be an additional, not a substitute candidate. (Pontawe vs. COMELEC, G.R. No. 59343, April 24, 1985). *If a candidate is disqualified after the last day of filing certificates of candidacy, what could be the remedy? -There may be a substitute candidate. The substitution may be on or before mid- day of the day of the election. (Pontawe vs. COMELEC, G.R. No. 59343, April 24, 1985). *Who can be a substitute candidate in case a candidate dies, or is disqualified or withdraws after the last day for filing of the certificate of candidacy? -Only a person belonging to and certified by the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affecter not later than mid- day of the day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid- day of election day, said certificate may be filed with any board of election inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission.(Domingo vs. City Board of Canvassers, G.R. No. 105365, June 2, 1992). *What is the nature of the order of the COMELEC disqualifying a candidate? Why? -It is immediately executory, otherwise, there would be no need to nominate a substitute. (Pontawe vs. COMELEC, supra).

*What are the prohibited means of collection of funds for election purposes? -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; 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; provided, that normal

and customary religious stipends, tithes, or collections on Sundays and/ or designated collection days, are excluded from this prohibition. (Sec. 97, Art. XI, B.P. Blg. 881) *What shall constitute the permanent list of voters? -Any provision of P.D. No. 1896 to the contrary notwithstanding, the list of voters prepared and used in the election of Members of the Batasang Pambansa on May 14, 1984, with such additions, cancellations and corrections as may hereafter be made in accordance with the provisions of this Code, shall constitute the permanent list of voters in each city or municipality, as the case may be until 1996. -For the purposes of the next following election, the Commission, through the election registrars, shall assign the proper precincts and polling places to the registered voters in said list. Written notice of any such change shall be made to the affected voters within two weeks therefrom. (Sec. 113, Art. XII, B.P. Blg. 881) *Who may be registered in the list of voters? -All persons having complied with the requisites herein prescribed for the registration of voters shall be registered in the list, provided they possess all the qualifications and none of the disqualifications of a voter. Those who failed to register in the election of 1984, for any reason whatsoever, may register in accordance with the provisions of this Code. Any person who may not have on the date of registration the age or period of residence may also be registered upon proof that on the date of the election, plebiscite or referendum, he shall have such qualifications. (Sec. 4, P.D. No. 1896, as amended; Sec. 116, Art XII, B.P. Blg. 881) *What are the qualifications prescribed for a voter? -Every citizen of the Philippines, not otherwise disqualified by law, eighteen years of age or over, who shall have resided in the Philippines for one year and in the city or municipality wherein he proposes to vote for at least six months immediately preceding the election, may be registered as a voter.

*What constitutes residence for purposes of the election law? -The term residence, as used in constitutional and statutory provisions relating to the qualifications of electors, is synonymous with home or domicile, denoting a permanent dwelling place, to which the party when absent, intends to return. While one cannot by intention alone fix his dwelling place, yet the fact of residence for the purpose of voting depends largely on the intention of making it a permanent home, will now qualify the sojourner as an elector, unless it is otherwise provided by the Constitution or statute. Hence, the two things must concur – the act of residing coupled with the intention to do so. (20 C.J., p. 68; Romualdez vs. COMELEC) *Give the criterion in determining one’s residence. -While there is no absolute criterion to determine one’s place of residence, yet the following rules seem to be established: 1) That a man must have a residence somewhere; 2) That once established, the old residence is presumed to continue until a new one is established; and 3) That a man can have but one domicile of citizenship at a time. -When circumstances are such that a man may claim a domicile at either one or two places, the place which he regards as his home or domicile will be his residence for the purpose of voting. (20 C.J., p. 69). *Who may challenge the right of a person to register? -Any person applying for registration may be challenged before the Board of Election Inspectors on any member, voter, candidate, or watcher. The board shall then examine the challenged person and shall receive such other evidence as it may deem pertinent, after which it shall decide whether the voter shall be included in or excluded from the list as may be proper. All challenges shall be heard and decided without delay, and in no case beyond three (3) days from the date the challenge was made. -After the question has been decided, the Board of Election Inspectors shall give to each party a brief certified statement setting forth to the challenge and the decision thereon. (Sec. 32, P.D. No. 1896, as amended; Sec. 136, Art. XII, B.P. Blg. 881). *When and by whom may the registry list of voters be annulled? -Any book of voters not prepared in accordance with the provisions of this Code or the preparation of which has been effected with fraud, bribery, forgery, impersonation, intimidation, force, or any other similar irregularity or which list is statistically improbable may, upon verified petition of any voter or election registrar, or duly registered political party, and after notice and hearing, be annulled by the Commission: Provided, that no order, ruling or decision annulling a book of voters shall be executed within sixty days before an election.(Sec. 145, Art. XII, B.P. Blg. 881).

*How are election inspectors and poll clerks appointed? -At least thirty days before the date when the voters list is to be prepared in accordance with the Code, in the case of a regular election or fifteen days before a special election, the Commission shall directly or through its duly authorized representatives, constitute a board of election inspectors for each precinct to be composed of a chairman and a poll clerk who must be public school teachers, priority to be given to civil service eligibles, and two members, each representing the two accredited political parties. The appointment shall state the precinct to which they are assigned and the date of the appointment. (Sec. 164, Art. XIV, B.P. Blg. 881). *What are qualifications of members of the Board of Election Inspectors? -No person shall be appointed chairman, member or substitute member of the board of election inspectors unless he is of good moral character and irreproachable reputation, a registered voter of the city or municipality, has never been convicted of any election offense or of any other crime punishable by more than six moths of imprisonment, or if he has pending against him an information for any election offense. He must be able to speak and write English or the local dialect. (Sec. 166, Art. XIV, B.P. Blg. 881). *Who are ineligible for appointment as members of the Board of Inspectors. -No person shall serve as chairman or member of the Board of Election Inspectors if he is related within the fourth civil degree of consanguinity or affinity to any member of the board of election inspectors or to any candidate to be voter for in the polling place or his spouse. (Sec. 167, Art. XIV, B.P. Blg. 881). *How may a member of the Board be relieved of his duties? -Public school teachers who are members of the board of election inspectors shall not be relieved nor disqualified from acting as such members, except for cause and after due hearing. -Any member of the Board of Election Inspectors, nominated by a political party, as well as his substitute may at any time be relieved from office and substituted with another having the legal qualifications upon petition of the authorized representatives of the party upon whose nomination the appointment was made, and it shall be unlawful to prevent said person from, or disturb him in, the performance of duties of the said office. A record of each case of substitution shall be made, setting forth therein the hour in which the replaced member has ceased in the office and the status or the work of the Board of Election Inspectors. Said record shall be signed by each member of the board of election inspectors including the incoming and outgoing officers. (Sec. 171, Art. XIV, B.P. Blg. 881) *Can the election inspectors (Election Committee) pass upon the eligibility of candidates during the counting of the votes? -No. The duties of election inspectors are confined to the conduct of the election, the counting of the votes, and the certification of the results in so far as it relates to the properly certified candidates. The question as to the eligibility of a candidate of office is one with which they have no authority to decide. (See Caesar vs. Garrido , 53 Phil. 97). *What are marked ballots? -Marked ballots containing distinguishing marks, the purpose of which is to identify them.

*What is the cardinal rule in the appreciation of ballots? Explain. -The cardinal objective of ballot appreciation is to discover and give effect to, rather than frustrate the intention of the voters, thus, every ballot shall be presumed valid unless clear and good reasons justify its rejection. Extreme caution should be observed before any ballot is invalidated and doubts in the appreciation of ballots are resolved in favor of their validity. (Sec. 211, B.P. 881; Torres vs. HRET, 351 SCRA 312 [2001]). Thus, it is a well- founded rule ensconced in our jurisprudence that laws and statutes governing election contests especially appreciation of ballots must be liberally construed to the end that the will of the electorate in the choice of public officials may not be defeated by technical infirmities. (De Guzman vs. COMELEC, et al., G.R. No. 159713, March 31, 2004 citing Bince, Jr. vs. COMELEC 242 SCRA 273 [1995]; Benito vs. COMELEC, 235 SCRA 436 [1994]; Pahilan vs. Tabalba, 230 SCRA 205 [1994]; Aruelo, Jr. vs. Court of Appeals, 227 SCRA 311 [1993]; Tatlonghari vs. COMELEC, 199 SCRA 849 [1991]; Unda vs. COMELEC, 190 SCRA 827 [1990]; and, De Leon vs. Guadiz, Jr., 104 SCRA 891 [1981]). *What are the issues raised in a pre- proclamation controversy? -The following issues are raised in a pre- proclamation controversy: (a) Illegal composition or proceedings of the board of canvassers.

(b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 2343, 235 and 236 of this Code. (c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and (d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates. (Sec. 243, Omnibus Election Code). -The enumeration is restrictive and exclusive. (Dagloc vs. COMELEC, et al., G.R. No. 15442-47, December 10, 2003) *What are the matters covered in pre- proclamation controversies? Explain. -Pre- proclamation controversies are limited to: (1) challenges directed against the composition or proceedings of the board of canvassers (not the board of election inspectors), or (2) challenges related to election returns to which a party must have made specific objection. Hence, if the objection to the election returns are “that the election returns are manufactured, fabricated or not authentic, considering that the election returns includes votes on ballots which are spurious, marked and invalid ballots,” the objections are not proper in a proclamation controversy since the objection as worded, do not challenge the returns, but are directed primarily at the ballots reflected in the returns. Thus, it is settled that issues relative to the appreciation of ballots cannot be raised in a proclamation controversy.” -“Appreciation of ballots is the task of the board of election inspectors, not the board of canvassers, and questions related thereto are proper only in election protests.” (Dagloc vs. COMELEC, et al., G.R. No. 154442-47, December 10, 2003) *After proclamation, is a pre- proclamation controversy still viable? Is the rule absolute? Why? -No. After a proclamation has been made, a pre- proclamation case before the COMELEC is no longer viable. (Gallardo vs. Rimando, 187 SCRA 463; Casimiro vs. COMELEC, 171 SCRA 468; Salvacion vs. COMELEC, 170 SCRA 513; Padilla vs. COMELEC, 137 SCRA 424). In Sison vs. COMELEC, 104 SCAD 129, 304 SCRA 170, it was said that the more appropriate remedy is election protest or quo warranto. (Laodenio vs. COMELEC, 85 SCAD 441, 276 SCRA 705; Torres vs. COMELEC, 81 SCAD 228, 270 SCRA 583). -There are exceptions like: a) where the board of canvassers was improperly constituted; b) where a quo warranto was not properly filed; c) where what was filed was not really a petition for quo warranto or an election protest but a petition to annul a proclamation; d) where the filing of a quo warranto petition or an election protest was expressly made without prejudice to the preproclamation controversy or was made ad cautelam; and e) where the proclamation was null and void. (Laodenio vs. COMELEC, et al., supra). *What is the neighborhood rule? Illustrate it. -Under the neighborhood rule, if the name of a candidate was written on the wrong space, it should be counted in his favor if the intention to vote for him for the correct position can be determined. In the case of Lerias vs. COMELEC, it was observed that the ballot in which the first name and the surname with the initial of the first name of Rosette Yniguez Lerias, who was a candidate for representative, was written in the space for senators, should be counted in her favor, where the space for the House of Representatives was left blank. (Lerias vs. COMELEC). *What should be alleged in the election protest? 1) That the protestant is a candidate voted for in the last election and that he has presented a certificate of candidacy; 2) That the protestee has been proclaimed in the said election; and 3) The date of the proclamation in order to determine the period within which the protest should be filed. -The above facts are jurisdictional. The Court of First Instance (now RTC) being a court of special and limited jurisdiction, cannot try an election protest until the special facts upon it may take jurisdiction are expressly shown in the motion of protest. (Tengco vs. Jocson, 43 Phi. 715). *What is the remedy of an aggrieved party after the proclamation of a candidate? Is the rule absolute? Explain. -As a general rule, the proper remedy after the proclamation of the winning candidate for the position contested would be to file a regular election protest or a petition for quo warranto. This rule, however, admits of exceptions, to wit: (1) where the board of canvassers was improperly constituted; (2) where quo warranto was not the proper remedy; (3) where what was filed was not really a petition for quo warranto or an election protest but a petition to annul the proclamation; (4) where the filing of a quo warranto

petition or an election protest was expressly made without prejudice to the pre- proclamation controversy or was made ad cautelam; and (5) where the proclamation was null and void. (Lorenzo vs. COMELEC, et al., G.R. No. 158371, December 11, 2003 citing Ibasco vs. Ilao, 110 Phil. 553, [1960]). *May a party in an election contest dispense with the filing of a motion for reconsideration from a decision of the Division of the COMELEC to the en banc? Explain. -No. Under the existing Constitutional scheme, a party to an election case within the jurisdiction of the COMELEC in division cannot dispense with the filing of a motion for reconsideration having been filed. (Ambil, Jr. vs. COMELEC, 344 SCRA 358 [2000]). Failure to abide by this procedural requirement constitutes a ground for dismissal of the petition.

*When may judicial counting of votes in election contests be ordered? -Where allegations in a protest or counter- protest so warrant, or whenever in the opinion of the court the interests of justice so require, it shall immediately order the book of voters, ballot boxes and their keys, ballots and other documents used in the election to be brought before it and that the ballots be examined and the votes recounted (Sec. 225, Art. XXI, B.P. Blg. 881; Garcia vs. COMELEC, G.R. No. 88158; Uy vs. COMELEC, G.R. No. 97108, May 5, 1992). *Under what circumstances may the election in a political unit be annulled? Why? -In order to annul the election in a political unit, two (2) conditions must concur: a) The illegality must affect more than 50% of the votes cast; and b) It must be impossible to distinguish the good votes from the bad. -When more than 50% of the total number of votes are illegal, the annulment is justified for the reason that the remainder did not constitute a valid constituency. (Espaldon vs. Bandon, HRET Case No. 14, November 26, 1990). *When may a proclaimed candidate be unseated? -A proclaimed candidate may be unseated if: 1) The opponent is adjudged the true winner of the election by final judgement (Sec. 251); 2) The prevailing party is declared ineligible or disqualified by final judgment in a quo warranto case (Sec. 253, OEC); 3) The incumbent is removed from office for cause (Sec. 264, OEC; Secs. 18, 9, & 12, R.A. No. 3019; Gallardo vs. Rimando, G.R. No. 91718, July 13, 1990).