Admin Law Reviewer

ADMINISTRATIVE LAW I. II. III. IV. V. VI. VII.

Quasi-Legislative Power Quasi-Judicial Power Administrative Procedure Judicial Review Of Admin Decisions Modes Of Judicial Review Extent Of Judicial Review Enforcement Of Agency Action

99 102 103 104 106 108 109

6. COMELEC Commissioners 7. COA Commissioners F. Religious Test or Qualification G. Disqualifications to Hold Public Office III.

FORMATION OF OFFICIAL RELATION 118 A. Modes of Commencing Official Relation 118 B. Election: Selection or designation by a popular vote 118 C. Appointment 118 D. Qualification Standards and Requirements under the Civil Service Law 119 1. Qualification Standards 2. Political Qualifications for an Office 3. Property Qualifications 4. Citizenship 5. Effect of removal of qualifications during the term 6. Effect of pardon upon the disqualification to hold public office E. Discretion of Appointing Official 120 F. Effectivity of Appointment 120 G. Effects of a complete, final and irrevocable appointment 120

IV.

ASSUMPTION AND TERM OR TENURE OF OFFICE 121 Qualification to Office 121 Oath of Office 121 1. Definition 2. Persons Authorized to Administer Oaths 3. Persons Obliged to Administer Oaths in All Instances 4. Time of Taking the Oath of Office 5. Requalification C. Giving of Bonds 122 1. Bond, definition 2. Persons Required to Give Bond 3. Effect of Failure to Give Bond within the Prescribed Period D. Term and Tenure of Office 122 1. Term of Office and Tenure of Office Distinguished 2. Power of the Legislature to Fix and Change the Term of Office 3. When Term of Office Dependent upon "Pleasure of the President" 4. No Vested Interest in Term of Office 5. Term of Office Not Extended by Reason of War E. Doctrine of Holdover 123 1. Purpose 2. Holding-Over Rules F. Commencement of Term of Office 123

LAW ON PUBLIC OFFICERS I.

PUBLIC OFFICE AND OFFICERS A. Public Office 1. Definition 2. Purpose 3. Nature 4. Elements 5. Comparisons: Public Employment and Public Contract 6. Creation 7. Modification and Abolition of Public Office 8. Abandonment 9. Estoppel to Deny Existence of Office B.

C. D. II.

110 110

A. B.

Public Officer 112 1. Definition 2. A person cannot be compelled to accept a public office. 3. No presumption of power Classification of Public Offices and Public Officers 112 De Facto Officers 113

ELIGIBILITY AND QUALIFICATIONS A. Definition B. Power to Prescribe Qualifications C. Time of Possession of Qualifications D. Construction of Restrictions on Eligibility E. Qualifications usually Prescribed 1. President and Vice President 2. Senator 3. Congressmen 4. Supreme Court Justice 5. Civil Service Commisioner

115 115 115 116 116 116

117 117

1. Where the time is fixed 2. Where no time is fixed V. POWERS AND DUTIES OF PUBLIC OFFICERS A. Source of Government Authority B. Scope of Powers of a Public Officer C. Territorial Extent of Powers of Public Officer D. Duration of Authority of Public Officers E. Construction of Grant of Powers F. Classification of Powers G. Time of Execution of Powers H. Ratification of Unauthorized Acts I. Accountability and Responsibility of Public Officers and Employees

123 123 123 123 124 124 124 124 125

VI.

125

A. B.

RIGHTS AND PRIVILEGES OF PUBLIC OFFICERS Right to Office Right to Salary or Compensation

125

VII. ADMINISTRATIVE DISCIPLINE A. Over Presidential Appointees B. Over Non-Presidential Appointees C. Over Elective Officials

128 128 128 130

VIII. TERMINATION OF OFFICIAL RELATIONS A. Modes of Termination

132

ELECTION LAW I.

GENERAL PRINCIPLES A. Sources of Philippine Election Law B. Theory of Popular Sovereignty C. Suffrage

135 135 136 136

II. THE COMELEC A. Purpose B. Composition C. Powers and Functions D. Rendition of Decision

137 137 138 138 140

III. ELECTIONS IN GENERAL A. Kinds of Elections B. Authority for Holding Elections

141

C. Date of Election D. Time for Holding Elections E. Place for Holding Elections F. Manner of Holding Elections IV. PRE-ELECTION REQUIREMENTS A. Precincts and Polling Places B. Official Ballots, Election Returns and Ballot Boxes C. Registration of Voters D. Registration of Political Parties E. Registration for Party-list F. Certificates of candidacy

142

V. ELECTION CAMPAIGN AND EXPENDITURES A. Election Campaign B. Election Contributions and Expenditures C. Duties of candidates and political parties D. Repeal of Sec. 105-112 of BP 881 as election offenses

153

VI. THE ELECTION PROPER A. In General B. Casting of votes C. Counting of votes D. Canvass

159 159 160 163 170

VII. MODES OF CHALLENGING CANDIDACY & ELECTION RESULTS 175 A. Nuisance candidates and cancellation of certificate of candidacy B. Pre-proclamation controversies 176 C. Petition to annul or suspend proclamation 180 D. Declaration of failure of election 180 E. Disqualification cases 180 F. Election contests 181 VIII.

ELECTION OFFENSES

ADMINISTRATIVE LAW Definitions

Administrative Law is the law concerning the powers and functions of admin agencies, including especially the law governing judicial review of admin action. (Kenneth Culp Davis)

Administrative Agency is a governmental authority, other than a court or legislative body, which affects the rights of private parties through rule-making and adjudication (KC Davis) Sources of Administrative Law 1. 2. 3. 4.

constitution/statutory enactments creating admin bodies (SSS Act, Admin Code 1987) court decisions interpreting charters of admin bodies and defining their powers, rights and limits; rules and regulations issued by the admin bodies (ex: Omnibus Rules Implementing the Labor Code) determinations and orders of admin bodies in settling controversies.

Types of administrative agencies 1. Those created to function in situations wherein the govt is offering some gratuity, grant or special privilege. (GSIS, SSS, PAO) 2. To carry on actual businesses of government (BIR, Bureau of Customs, Bureau of Immigration, Land Registration Authority) 3. To perform some business services for the public (Bureau of Posts, MWSS, NFA, NHA) 4. To regulate business affected with public interest (Insurance Commission, LTFRB, NTC) 5. To regulate private business and individuals under police power (SEC, MTRCB) 6. Those set up to function in situations wherein the government is seeking to adjust individual controversies because of some strong social policy involved (NLRC, SEC, DAR, COA) Factors responsible for the emergence of admin agencies (Pangasinan Transport Co vs. Public Service Commission) 1. growing complexity of modern life 2. multiplication of subjects of governmental regulation 3. increased difficulty of administering laws

implementing/executory I. QUASI-LEGISLATIVE POWER Power of making rules and regulations to govern a certain subject (indispensable as the primary function of admin bodies is regulatory) grant of rule-making powers to admin agencies is a relaxation of the principle of separation of powers and serves as an exception to the doctrine of non-delegation of legislative powers Non-delegation doctrine - Legislative power is vested in the legislature, hence it may not escape its duties by delegating that power to any other body or authority. Any attempt to abdicate that power is void - potestas delegata non delegare potest. (People vs. Vera) Exceptions: 1. 2. 3. 4.

delegation to local authorities (loc govt) to the people at large; to the president, in times of war or other national emergency, or simply to fix tariff rates, import and export quotas; tonnage and wharfage dues; delegation to admin bodies

Valid delegation: when the statute was complete in all its terms and provisions when it left the hands of legislature so that nothing more was left to the judgment of the delegate -

Exception: o o

minor details may be left to be supplied or filled in by rules and regulations to be promulgated by exec officers & admin boards power to ascertain facts may be delegated

Test for valid delegation (Santiago v. COMELEC) 1. 2.

it is complete in itself, setting forth the policy to be executed or implemented; it fixes a standard, the limits of which are determinate and determinable, to which the delegate must conform in the performance of his functions.

Powers of Admin Agencies (from Am Jur) 1. Quasi-legislative (power of rule-making) 2. Quasi-judicial (power of adjudication) 3. Discretionary and Ministerial 4. Determinative Powers

3 Categories of Rules and Regulations promulgated by Admin bodies 1. those intended to supply the details of legislation 2. those intended to interpret or construe the particular law or statute being enforced 3. those intended to “determine some fact or state of things upon which the enforcement of the act shall depend” (Field vs. Clark)

Powers of Admin Agencies (fr Carlota outline): rule-making, adjudicatory, licensing, price/rate-fixing,

Sufficient standard - one which defines legislative policy, marks it limits, maps out its boundaries,

and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. Limits on Rule-making Power a. must be authorized by law (Olsen vs. Aldanese) b. must not amend the law (Syman vs. Jacinto) c. must not define a criminal act (People vs. Maceren) d. must be germane to the purposes of the law it was meant to implement (Toledo vs. CSC) e. must not restrict, expand or diminish the law (CIR vs. CA, GMCR vs. Bell Telecoms) f. action of the admin agency is to be set aside if there is an error of law, a grave abuse of power, or lack or grave abuse of discretion clearly conflicting with either the letter or the spirit of the law (Land Bank vs. CA) Publication and Effectivity Admin Code of 1987: every agency required to file with UP Law Center 3 certified copies of every rule adopted by it (Bk VII, Sec. 3) Date of effectivity of rule: 15 days from date of filing (Bk VII, Sec 4), except in the ff instances: 1. Different date fixed by law or specified in the rule 2. In cases of imminent danger to public health, safety and welfare

Tanada vs. Tuvera - Publication is required in: 1. 2. 3. 4.

statutes of local application private laws PDs & Eos issued by the Pres. in the exercise of its legislative powers Admin rules & regulations implementing existing law pursuant to valid delegation

Publication NOT required in: [only exceptions] 1. interpretative regulations 2. internal regulations Penal regulations – must be published in full text (Admin Code, Book VII, Sec 6 (2)) – must be published before it is to take effect (People vs. Que Po Lay) – the law itself must so declare the act as punishable – penal statutes are in the exclusive domain of the legislature and cannot be delegated Interpretive Rules – interprets the law enacted by legislature – interpretive rule can be found erroneous by the successor; wrong construction of the law cannot give right to a vested right (Hilado vs. CIR) – admin interpretation merely advisory (Victorias v SSC)

Victorias v SSC - Distinguish between:

1. 2.

Admin rule/regulation – with the force and effect of a valid law; must be published Administrative interpretation of law – admin agency renders an opinion or gives a statement of policy; need not be published

Fixing of rates, Wages, Prices Rate – any charge to the public for a service open to all and upon the same terms, including individual or joint rates, tolls, classification or schedules thereof, as well as communication, mileage, kilometrage, and other special rates which shall be imposed by law or regulation to be observed and followed by any person. (Admin Code, Book VII, Sec. 2 (3)) – Admin agency to publish or circulate notices of proposed rules and afford interested parties the opportunity to submit their views prior to the adoption of any rule (Admin Code, Book VII, Sec. 9 (1)) – To be valid, proposed rates must be published in a newspaper of general circulation at least 2 weeks before the first hearing thereon (Book VII, Sec. 9 (2))

Vigan Electric v PSC - Nature of rate-fixing: 1. Quasi-legislative – the rate applies to all kinds of enterprises throughout the Philippines; notice 2.

& hearing are required only because the Admin Code says so Quasi-judicial – the rate exclusively pertains to a particular entity; notice & hearing are required per Panay Bus & KMU rulings

Licensing Function - Licensing includes agency process involving the grant, renewal, denial, revocation, suspension, annulment, withdrawal, limitation, amendment, modification, or conditioning of a license License includes the whole or any part of any agency permit, certificate, passport, clearance, approval, registration, charter, membership, statutory exemption, or other form of permission or regulation of the exercise of a right or privilege No license may be withdrawn, suspended, revoked or annulled without notice and hearing (Book VII, Sec 17 (2)) except: 1. in cases of willful violation of pertinent laws, rules and regulations 2. when public security, health or safety requires otherwise II. QUASI-JUDICIAL POWER - Term applied to the action, discretion, etc of public admin offices or bodies required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them as a basis for their official action and to exercise discretion of a judicial nature (Yupangco vs. CA) Investigatory or Inquisitorial Power - Power to inspect or to secure or to require the disclosure of information by means of accounts, records or otherwise 1. issuance of subpoena 2. swearing-in of witnesses 3. interrogation of witnesses

4. 5. 6. 7. 8. 9.

calling for production of books, papers and records requiring that books, papers and records be made available for inspection inspecting premises requiring written answers to questionnaires requiring reports, periodic or special requiring the filing of statements

Power to issue subpoena - All agencies with quasi-judicial functions have the power to issue subpoena as long as in the exercise of quasi-judicial functions, even if the charter is silent. Power is vested in the admin agency by the Admin Code (Book VII, Sec 13) Test for valid enforcement of subpoena: 1. within authority of the agency (expressly authorized by law) 2. demand is not too indefinite (subpoena duces tecum) 3. information is reasonably relevant (Evangelista vs. Jarencio) Power to declare contempt - Not all agencies with quasi-judicial functions have the power to declare comtempt. The power must expressly granted in the agency’s charter. If there is no such grant, the admin agency must invoke the aid of the RTC as the power is inherently judicial Warrants of arrest, Admin searches - Admin agencies cannot issue warrants of arrest. Under the Constitution, only a judge may issue search or arrest warrants (Salazar vs. Achacoso) except in cases of deportation of illegal and undesirable aliens following a final order of deportation (arrest warrant) Imposition of Fines and Penalties - Admin agencies can impose fines and penalties subject to the ff tests to be complied with for the imposition of the penalty to be valid: 1. Subject matter must be within the authority of Congress to legislate 2. Penalty must be admin/ civil in character 3. Agency must be expressly authorized to impose the penalty Judicial Determination of Sufficiency of Standards – the ff are sufficient standards: 1. Interest of law and order - Rubi V Provincial Board Of Mindoro 2. Pub Interest - People V Rosenthal & Osmena 3. Justice, equity and substantial merits of the case - Intl Hardwood & Veneer Co V Pangil Federation 4. What is moral, educational or amusing - Mutual Film Corp V Indl Commission 5. What is sacrilegious - Burstyn V Wilson 6. Adequate & efficient instruction - Pacu V Sec 7. Reasonableness as an implied standard - Wisconsin Inspection Bureau V Whitman 8. To promote simplicity, economy or efficiency - Cervantes V Auditor General 9. Maintain monetary stability, promote rising level of production & real income - Ppl V Joliffe Determinative Powers & Functions: (EDDES) 1. ENABLING – enabling, permitting or disallowing something which the law undertakes to regulate to be done with their approval (granting or denial of licenses)

2. 3. 4. 5.

DIRECTING – corrective powers, powers of assessment DISPENSING – granting of exemptions from or relaxing of a general prohibition EXAMINING – investigatory powers (subpoena, contempt) SUMMARY POWER – power to apply compulsion or force against persons or property to effectuate a legal purpose without a judicial warrant to authorize such action (from Martin and Martin)

III. ADMINISTRATIVE PROCEDURE Cardinal Primary Rights (Ang Tibay vs CIR) 1. Right to a hearing – right to present own case and to present evidence in support 2. Right to have evidence considered 3. Decision must be supported by evidence 4. Substantial evidence - more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion 5. Transparency of records - decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected 6. Independent consideration of the law and facts of the controversy by the judge 7. Decision must reveal relevant issues - absence of one of the 7 rights is sufficient to question the proceedings Notice and hearing - when required: 1. When law specifically requires notice and hearing (Halili vs. PSC, Bautista vs. WCC) 2. When it affects a person’s status and liberty (Comm’r of Immigration vs. Fernandez) Notice and hearing - when NOT required: 1. If admin action is based on an undisputed fact and not a quasi-judicial function 2. If it involves the exercise of discretion and there is no grave abuse of discretion (De Bisschop vs. Galang) 3. When rules to govern future conduct of persons or enterprises, unless the law provides otherwise (Taxicab Operators of Manila vs. Board of Transportation) 4. In the valid exercise of police power Examples: Arrest of criminal offenders before the filing of charges, distraint of property of delinquent taxpayers, suspension pending an investigation, cancellation of a passport Jurisdiction - Admin agencies may only exercise such powers as are explicitly or by necessary implication conferred on them by law. Admin and Judicial Proceedings Arising from the Same Facts - The difference in the proceedings (one admin, the other criminal) is not legal but merely physical incompatibility. The 2 proceedings are independent of each other, involving different causes of action and can proceed simultaneously (Galang vs. CA)

Rules of Evidence Admin agencies are not bound by technical rules of evidence but due process must be observed. IV. JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS Factors Affecting Finality of Admin Decisions (QHNF) 1. Question of constitutionality 2. History of the statute 3. Nature of the problem (question of law or question of fact) 4. Finality of decision (non quieta movere) General rule: Courts refuse to interfere with proceedings taken by admin agencies, except: (BUAGF) 1. 2. 3. 4. 5.

Admin agency has gone beyond statutory authority Agency exercised unconstitutional powers Admin agency has clearly acted arbitrarily and without regard to his duty Grave abuse of discretion Decision vitiated by fraud, imposition or mistake (Manuel vs. Villena)

Exhaustion of Administrative Remedies Pascual v Provincial Board - Where the law has delineated the procedure by which an administrative appeal or remedy could be effected, the same should be followed before recourse to judicial action can be initiated. Judicial review is available only after exhaustion of admin remedies for the ff reasons: 1. The law prescribes a procedure- legal reason. 2. To give the agency a chance to correct its own errors, save the trouble of going to court- practical reason 3. reasons of comity- expedient courtesy Summary of exceptions to the doctrine of exhaustion of administrative remedies: 1. 2. 3. 4. 5. 6. 7. 8. 9.

when there is a violation of due process when the issue involved is purely legal when administrative action is patently illegal amounting to lack or excess of jurisdiction when there is estoppel on part of the admin agency concerned when there is irreparable injury/damage when the respondent is a department secretary whose acts as alter ego of the President bears the implied and assumed approval of the latter when to require exhaustion of admin remedies would be unreasonable when it would amount to a nullification of a claim when the subject matter is a private land in land case proceedings

10. 11. 12. 13. 14. 15. 16. 17.

when the rule does not provide a plain, speedy and adequate remedy and when there are circumstances indicating the urgency of judicial intervention when such administrative remedy is permissive and voluntary, when the legislative intended to allow judicial remedy even though admin remedies have not been exhausted. when the case has not reached the stage of ripeness for adjudication. when the claim involved is small when strong public interest is involved in quo warrant proceeding

Smart Communications vs. NTC – The principle of exhaustion of admin remedies applies only where the act of the admin agency was performed pursuant to its quasi-judicial function, not when the assailed act pertained to its rule-making or quasi-legislative power.

Primary Jurisdiction or Preliminary Resort - Courts will not intervene if the question to be resolved is one which requires the expertise of admin agencies and the legislative intent on the matter is to have uniformity in the rulings. It can only occur where there is a concurrence of jurisdiction between the court and the admin agency. It is a question of Court yielding to the agency because of latter’s expertise: does not amount to OUSTER of court. Standing to Challenge - Legal standing is a personal or substantial interest such that a party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. Such interest must be material and personal. (Joya vs. PCGG, Lozada vs COMELEC) Lujan v Defenders of Wildlife: 3 Elements of standing: 1) Plaintiff must have suffered an injury in fact, an invasion of a legally protected interest which is: a. Concrete and particularized, and b. Actual and imminent, not merely conjectural; 2) There must be a causal connection between the injury and the conduct complained of; 3) It must be likely, as opposed to merely speculative, that the injury will be redressed by a favourable court decision. Ripeness - The purpose of the “ripeness” doctrine is to prevent courts, through avoidance of premature adjudication, from entangling in abstract admin policies; and to protect agencies from judicial interference until an admin decision has been formalized and its effects have been felt in a concrete way by the party challenging such action. (Abbot Laboratories v Gardner) Requirements for the application of the doctrine: 1) fitness of the issue for judicial resolution (WON purely legal question); and 2) the hardship to the parties of withholding consideration (economic sanctions, criminal or civil liability). Both must be satisfied. V. MODES OF JUDICIAL REVIEW

2. Order the continued performance of some act for the purpose of preventing further injury. Certiorari - Requisites: 1. Lack of jurisdiction or grave abuse of discretion amounting to lack of jurisdiction 2. No plain, adequate and speedy remedy 3. The admin agency must be performing a quasi-judicial function. Certiorari may not be invoked if it involves a ministerial function 4. PURPOSE: to set aside or nullify proceedings. Prohibition - Requisites: 1. Lack of jurisdiction or grave abuse of discretion 2. No plain, adequate and speedy remedy 3. Applies to agencies performing quasi-judicial and ministerial functions 4. PURPOSE: to prohibit or stop a proceeding. PREVENTIVE! Not for acts already performed. Mandamus - Requisites: 1. Duty is ministerial 2. Right of petitioner is clear and controlling 3. No other plain, speedy and adequate remedy PURPOSE: compelling a party to perform an act arising out of a positive duty enjoined by law Exceptions: Mandamus will lie against a discretionary duty when the official or agency refuses to exercise the duty itself. It will not lie to enforce a contractual obligation as the duty sought to be enforced must be a ministerial duty Declaratory relief - Requisites: 1. Party is interested under a deed, will, contract or written instrument and his rights are affected by law. 2. Filed BEFORE the breach or violation thereof 3. PURPOSE: to determine construction, validity, and declaration of rights thereunder. Other conditions: 1. Justiciable controversy 2. Controversy bet persons w/ adverse interests. 3. Must have legal interest 4. Ripe for adjudication Habeas Corpus - It is intended, as a speedy remedy, to secure the release of a person deprived of his liberty. A person detained upon orders of an agency may test the validity of his detention through the privilege of the writ of habeas corpus. HC applies when there is illegal confinement or detention or illegal restraint of liberty or when rightful custody of any person is withheld from the person entitled thereto. Injunction as provisional remedy - Provided to preserve the petitioner’s rights while main action is pending. It may be used to: 1. Prevent the commission of certain acts complained of

Requisites: 1. Plaintiff is entitled to relief demanded 2. Commission or continuance of act complained of would probably work injustice to him. 3. Defendant is doing, threatens or about to do acts in violation of petitioner’s rights which may render the judgment ineffective. If plaintiff wins, injunction becomes permanent, the writ is dissolved. TYPES: 1. Preliminary mandatory injunction: plaintiff wants to compel defendant to do something 2. Preliminary injunction: to prevent or stop defendant from doing something 3. Restraining order: lifespan of 20 days after which hearing is held to decide propriety 4. Permanent injunction Suit for damages, indirect Method - Parties aggrieved by some agency action may be able to obtain judicial review in an action for damages brought against the agency or its officials. WON action will prosper will depend on the determination of such other questions as state immunity from suit and the applicable statutes. VI. EXTENT OF JUDICIAL REVIEW Generally, laws creating admin agencies and providing for judicial review may indicate the scope of that review. The ff are the general rules: 1. Questions of law are always reviewable by courts. 2. Findings of fact is based on substantial evidence are conclusive and binding on courts. 3. If the decision of a case is discretionary on the part of the agency, the courts can review if the decision is attended with capriciousness 4. Questions of jurisdiction are always reviewable as they go into the question of authority to decide. Law-Fact Distinction - There is no clear-cut line which can be drawn to separate questions of law from question of fact. Most cases may involve mixed questions of law and fact. Question of Law - A party challenging admin action may direct his attack against the: constitutionality of the statute creating the agency and granting its powers or the validity of the agency action if this transcends the limits established by law or against the correctness of its interpretation and application of the law. Question of Fact - when the issue involved is whether a certain thing exists or whether an event has taken place, or which of the 2 versions of a happening is correct, a question of fact is raised. Finality is attached to findings of fact of some agencies when supported by substantial evidence.

This is a recognition of the expertise of the agency as to matters entrusted to them for regulation or decision. But the courts have the power to review findings of fact when the evidence on record is not substantial and WON such is substantial is for the court to say. Questions of Discretion - Discretion is the power to make a choice among permissive actions or policies. The very essence of a discretionary power is that the person or persons exercising it may choose which of several courses of action should be followed. Discretion may be defined, when applied to public functionaries, as the power or right conferred upon them by law, of acting officially under certain circumstances, according to the dictates of their own judgment and conscience and not controlled by the judgment of others. There is a well-recognized distinction with judicial review of admin discretion and substitution of judicial discretion for admin discretion. A court ordinarily may not or will not review or disturb an admin agency’s discretion which is within the limits of the powers conferred in the absence of a clear showing that such had been exercised arbitrarily, unreasonably or in bad faith. Questions of policy or discretion are reviewable only for unreasonableness, departure from statutory standards or lack of evidentiary support and questions of wisdom, propriety or expediency are for the agency to resolve. The courts will not substitute its discretion or judgment for that of the admin agency but will determine the lawfulness of its action. The ruling of an admin agency, on questions of law, while not as conclusive as its findings of facts, is nevertheless persuasive and gain much weight specially if the agency is one of special competence and experience. A ministerial act is one performed in response to a duty which has been positively imposed by law and its performance required at a time and in a manner or upon conditions specifically designated, the duty to perform under the conditions specified not being upon the officer’s judgment or discretion. VII. ENFORCEMENT OF AGENCY ACTION Admin determinations are enforceable only in the manner provided by statute. If the statute has failed to provide the remedy for their enforcement, they are unenforceable. Some determinations are not to be enforced at all in any ordinary sense of that term. Their only sanction is the force of public opinion invoked by the fairness of a full hearing, the intrinsic injustice of the conclusion, strengthened by the official prestige of tribunal, and the full publication of any violation of the decision. The legislative may aid the enforcement of admin determination by providing a penalty for failure to comply therewith and direct and positive sanctions (grant of subpoena power and contempt powers) are also afforded by provisions for admin or judicial processes to compel obedience or prevent violation.

Administrative enforcement includes the ff: 1. focusing on public opinion 2. revocation 3. suspension 4. refusal to renew licenses 5. refusal to grant clearance paper to ships 6. withholding or denying benefits 7. imposing conditions 8. seizure and sale or destruction property exclusion and deportation 9. acts against CPCs 10. imposition and collection of fines and penalties 11. summary distraint of personal property or levy on real property Judicial enforcement: Statutes customarily provide for judicial enforcement of admin determination. OBJECT: to enable such admin agency by invoking the power of the court, to mobilize the judicial authority in carrying out the policies of the statute. Res judicata applies to decisions of admin agencies if such decisions are in the exercise of their quasi-judicial functions. Res judicata does not apply if it is in the exercise of purely admin functions. Res judicata is a judicial doctrine. LAW ON PUBLIC OFFICERS I. PUBLIC OFFICE AND OFFICERS A. Public Office 1. Definition: the right, authority and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the appointing power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. (Mechem) 2. Purpose: to effect the end for which government has been instituted which is the common good; not profit, honor, or private interest of any person, family or class of persons (63 Am Jur 2d 667) 3. Nature: A public office is a public trust. (Art. XI, Sec. 1, 1987 Consti). It is a responsibility and not a right. (Morfe v. Mutuc)  There is no vested right to public office. General Rule: Being a mere privilege given by the state, does not vest any rights in the holder of the office. This rule applies when the law is clear. Exception: When the law is vague, the person’s holding of the office is protected and he





should not be deprived of his office. (Segovia v. Noel) Public office is not property. (Cornejo v. Gabriel) Exceptions: - In quo warranto proceedings relating to the question as to which of 2 persons is entitled to a public office - In an action for recovery of compensation accruing by virtue of the public office Public office being personal, the death of a public officer terminates his right to occupy the contested office and extinguishes his counterclaim for damages (Abeja v. Tanada).

4. Elements (a) Created either by: - Constitution - Legislature - municipality or other body through authority conferred by the Legislature (b) Possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (c) Powers conferred and duties discharged must be defined, directly or impliedly by law; (d) Duties must be performed independently and without control of a superior power other than the law; Exception: If duties are those of an inferior or subordinate office, created or authorized by the Legislature and by it placed under the general control of a superior office or body; (e) Must have some permanency and continuity Note: This is not to be applied literally, and the element of continuance cannot be considered as indispensable. 5. Comparisons: (a) Public Office v. Public Employment: All public office is public employment, but not all public employment is a public office. (b) Public Office v. Public Contract: A public office is an incident of sovereignty, a public contract is for a limited duration, with specific duties, and originates from the will of the contracting parties. 6. Creation (a) Modes of Creation by the Constitution by statute / law by a tribunal or body to which the power to create the office has been delegated (b) Delegation of Power to Create Public Office Where an office is created pursuant to illegally delegated powers, the office would have no existence. (UST v. Board of Tax Appeals) 7. Modification and Abolition of Public Office General Rule: The power to create an office includes the power to modify or abolish it. (i.e.,

this is generally a legislative function) (Ocampo v. Sec. of Justice) Exceptions: Where the Constitution prohibits such modification / abolition; Where the Constitution gives the people the power to modify or abolish the office 8. Abandonment: When a public official voluntarily accepts an appointment to an office newly created by law, which is incompatible with the former, he will be considered to have abandoned his former office. Exception: Non-acceptance of the new appointment would affect public interest, and the public official is thereby constrained to accept. (Zandueta v. Dela Costa) 9. Estoppel to Deny Existence of Office: When a person has acted as a public officer, esp. where he has received public monies by virtue of his office, he is estopped from denying that he has occupied a public office. B.

Public Officer

1. Definition: One who performs public functions / duties of government by virtue of direct provision of law, popular election, or appointment by competent authority. His duties involve the exercise of discretion in the performance of the functions of the government, and are not of a merely clerical or manual nature. (a) Who are public officers: For applying the RPC, employees, agents, or subordinate officials, of any rank or class, who perform public duties in the government or in any of its branches. (b) Who are not public officers: (i) Special policemen salaried by a private entity and patrolling only the premises of such private entity (Manila Terminal Co. v. CIR); (ii) Concession forest guards (Martha Lumber Mill v. Lagradante); (iii) Company cashier of a private corporation owned by the government (Tanchoco v. GSIS) 2. A person cannot be compelled to accept a public office. Exceptions: Citizens required, under conditions provided by law, to render personal military or civil service (Sec. 4, Art. II, 1987 Const.); Person elected to a public office but refuses without legal motive to be sworn in or to discharge his duties. 3. No presumption of power: The government is merely an agency through which the will of the state is expressed and enforced. Its officers therefore are likewise agents entrusted with the responsibility of discharging its functions. As such, there is no presumption that they are empowered to act. There must be a delegation of such authority, either express or implied. In the absence of a valid grant, they are devoid of power. (Villegas v. Subido) C.

Classification of Public Offices and Public Officers

1. Creation (a) Constitutional (b) Statutory 2. Public Body Served (a) National (b) Local 3. Department of government to which their functions pertain (a) Legislative (b) Executive (c) Judicial 4. Nature of functions (a) Civil (b) Military 5. Exercise of Judgment or discretion (a) Quasi-judicial (b) Ministerial 6. Legality of Title to office (a) De Jure (b) De Facto 7. Compensation (a) Lucrative (b) Honorary D.

(a) Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to the be the officer he assumed to be; (b) Under color of a known and valid appointment or election, but where the officer has failed to conform to some precedent requirement or condition (e.g., taking an oath or giving a bond); (c) Under color of a known election or appointment, void because: i. the officer was not eligible; ii. want of power in the electing or appointing body; iii. defect or irregularity in its exercise; iv. such ineligibility, want of power, or defect being unknown to the public. (d) Under color of an election or an appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such. 4. Comparisons (a) Officer De Jure v. Officer De Facto De Jure Requisites Existence of a de jure office; must possess the legal qualifications for the office in question; must be lawfully chosen to such office; must have qualified himself to perform the duties of such office according to the mode prescribed by law. Basis of Authority Right: lawful right / title to the office

De Facto Officers

1. De Facto Doctrine: A person, who, by the proper authority, is admitted and sworn into office is deemed to be rightfully in such office until: (a) by judicial declaration in a proper proceeding he is ousted therefrom; or (b) his admission thereto is declared void.

How ousted

Cannot be ousted.

Validity of official acts

Valid, subject to exceptions (e.g., done beyond scope of his authority, etc.) Entitled as a matter of right;

2. Purpose of the doctrine: To ensure the orderly functioning of government. The public cannot afford to check the validity of the officer's title each time they transact with him.

Compensation

3. Definition of De Facto Officer: Where the duties of his office are exercised under any of the following circumstances:

"No work, no pay" is not applicable to him. (b) Officer De Facto v. Intruder

De Facto De jure office; Color of right or general acquiescence by the public; Actual physical possession of the office in good faith

Reputation: possession and performs the duties under color of right, without being technically qualified in all points of law to act By direct proceeding (quo warranto); not collaterally Valid as to the public until his title is adjudged insufficient. Entitled only during the time when no de jure officer is declared; Paid only for actual services rendered by him.

Nature Basis of authority Validity of "official" acts Compensation

-

De Facto Officer under any of the 4 circumstances discussed under Part II (above). Color of right or title to office Valid as to the public until his title is adjudged insufficient

Intruder Takes possession of an office and undertakes to act officially without authority, either actual or apparent None. Absolutely void

Entitled only during the time when no de jure officer is declared; Paid only for actual services rendered by him.

Not entitled.

A.

Definition 1. Eligibility: endowment / requirement / accomplishment that fits one for a public office. 2. Qualification: endowment / act which a person must do before he can occupy a public office.

B.

Power to Prescribe Qualifications General Rule: Congress is empowered to prescribe qualifications. Restrictions: 1. Cannot exceed its constitutional powers; 2. Cannot impose conditions of eligibility inconsistent with constitutional provisions; 3. The qualification must be germane to the position ("reasonable relation" rule); 4. Cannot prescribe qualifications so detailed as to practically amount to making an appointment; 5. Where the Constitution establishes specific eligibility requirements for a particular constitutional office, the constitutional criteria are exclusive, and 6. Congress cannot add to them except if the Constitution expressly or impliedly gives the power to set qualifications. 7. In the absence of constitutional inhibition, Congress has the same right to provide disqualifications that it has to provide qualifications for office.

C.

Time of Possession of Qualifications 1. At the time specified, if specified by the Constitution or law. 2. Where silent, there are 2 views: a. at the time of commencement of term or induction into office; b. at the time of the election or appointment (Frivaldo v. Comelec)  Eligibility is a continuing nature, and must exist throughout the holding of the public office. Once the qualifications are lost, then the public officer forfeits the office.

An intruder / usurper may ripen into a de facto officer. Good faith on the part of the public is a factor in this.

4. Office created under an unconstitutional statute: He may be considered de facto at least before the declaration of unconstitutionality. 5. Legal Effect of Acts of De Facto Officers (a) As regards the officers themselves: A party suing or defending in his own right as a public officer must show that he is an officer de jure. It is not sufficient that he be merely a de facto officer. (b) As regards the public and third persons: The acts of a de facto officer are valid as to third persons and the public until his title to office is adjudged insufficient. (c) Official Acts of De Facto Officers not subject to collateral attack Remedy: Quo warranto proceedings 6. Liabilities: Generally held to be the same degree of accountability for official acts as that of a de jure officer. The de facto officer cannot excuse his responsibility for crimes committed in his official capacity by asserting his de facto status. 7. Right to Compensation General rule: Cannot maintain an action to recover the salary, fees or other emoluments attached to the office, even though he has performed the duties thereof. (Gen. Manager of PPA v. Monserate) Exception: One who becomes a public officer de facto without bad faith on his part, and who renders the services required of the office. II.

ELIGIBILITY AND QUALIFICATIONS

D. Construction of Restrictions on Eligibility: Presumption in favor of eligibility. E.

Qualifications usually Prescribed

1. President (Sec. 2, Art. VI, Const.) and Vice President (Sec. 3, Art. VII, Const) (a) Natural-born citizen (b) 40 years old on day of election (c) resident of the Philippines for at least 10 yrs immediately preceding election day 2. Senator (Sec. 3, Art. VI, Const) (a) Natural-born citizen (b) 35 years old on day of election (c) able to read and write (d) registered voter (e) resident of the Philippines for not less than two years immediately preceding election day

3. Congressmen (Sec. 6, Art. VI, Const.) (a) Natural-born citizen (b) 25 years old on day of election (c) able to read and write (d) registered voter in district in which he shall be elected (e) resident thereof for not less than one year immediately preceding election day Note: In election law, residence refers to domicile, i.e. the place where a party actually or constructively has his permanent home and where he intends to return. (Aquino v. Comelec) 4. Supreme Court Justice (a) Natural born citizen (b) at least 40 years old (c) 15 years or more a judge or engaged in law practice (d) of proven CIPI (competence, integrity, probity and independence) 5. Civil Service Commissioners (Sec. 1 [1], Art. IXB. Const.) (a) Natural-born citizen (b) 35 years old at time of appointment (c) proven capacity for public administration (d) not a candidate for any elective position in elections immediately preceding appointment 6. COMELEC Commissioners (Sec. 1[1], Art. IXC) (a) Natural-born citizen (b) 35 years old at time of appointment (c) college degree holder (d) not a candidate for elective position in election immediately preceding appointment (e) chairman and majority should be members of the bar who have been engaged in the practice of law for at least 10 years 7. COA Commissioners (a) Natural-born citizen (b) 35 years old at time of appointment (c) CPA with >10 year of auditing experience or (d) Bar member engaged in practice of law for at least 10 years Note: Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. (Cayetano v. Monsod) (e) Not have been candidates for elective position in elections immediately preceding appointment F.

Religious Test or Qualification: not required for the exercise of civil or political rights. (Art. III, Sec. 5, 1987 Const.)

G.

Disqualifications to Hold Public Office In General: Individuals who lack any of the qualifications prescribed by the Constitution or by law for a public office are ineligible / disqualified. 1. Mental or physical incapacity 2. Misconduct or crime involving moral turpitude 3. Impeachment 4. Removal or suspension from office 5. Previous tenure of office 6. Consecutive terms: a. Vice-President = 2 consecutive terms b. Senator = 2 consecutive terms c. Representative = 3 consecutive terms d. Elective local officials = 3 consecutive terms  Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. 7. Holding more than one office (CLU v. Executive Secretary) 8. Relationship with the appointing power Exceptions to rule on nepotism: a. persons employed in a confidential capacity b. teachers c. physicians d. members of the Armed Forces of the Philippines 9. Office newly created or the emoluments of which have been increased 10. Being an elective official: not eligible for appointment or designation in any capacity to any public office or position during his tenure; he may be appointed provided he forfeits his seat 11. Having been a candidate for any elective position 12. Under the Local Government Code a. Sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by 1 year or more of imprisonment, within 2 years after serving sentence; b. Removed from office as a result of an administrative case; c. Convicted by final judgment for violating the oath of allegiance to the Republic; d. Dual citizenship; e. Fugitive from justice in criminal or non-political cases here or abroad; f. Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of the Local Government Code; g. Insane or feeble-minded.

III. FORMATION OF OFFICIAL RELATION A. Modes of Commencing Official Relation 1. Election 2. Appointment

3.

B.

Others: Succession by operation of law; Direct provision of law, e.g. ex-officio officers

Election: Selection or designation by a popular vote

C. Appointment 1. Definition Definition

Extent of Powers Security of tenure? When deemed abandonment of prior office

Designation Imposition of additional duties upon an existing office

Limited No. Assumption of a designated position is not deemed abandonment

Appointment Selection of an individual to occupy a certain public office by one authorized by law to make such selection Comprehensive Yes. Assumption of a 2nd appointive position is usually deemed abandonment

2. Nature of Appointing Power: Intrinsically an executive act involving the exercise of discretion. (Concepcion v. Paredes) 3. Presidential Appointees  Nominated and appointed with the consent of the Commission on Appointments: Heads of the executive departments (Art. VII, Sec. 16, 1987 Const.); Ambassadors (ibid); Other public ministers and consuls (ibid); Officers of the armed forces from the rank or colonel or naval captain (ibid); Other officers whose appointments are vested in him by the Constitution (ibid), including Constitutional Commissioners (Art. IX-B, Sec. 1 (2) for CSC; Art. IX-C, Sec. 1 (2) for COMELEC; Art. IX-D, Sec. 1 (2) for COA).  Can be appointed without the need for CoA approval: All other officers of the government whose appointments are not otherwise provided for by law; Those whom he may be authorized by law to appoint; Members of the Supreme Court; Judges of lower courts; Ombudsman and his deputies  Kinds of Presidential Appointments (a) Regular: made while Congress is in session; subject to confirmation by the CoA (b) Ad interim: made while Congress is not in session

i.

Recess appointment power keeps in continuous operation the business of government when Congress is not in session.

ii.

Appointment shall cease to be effective upon rejection by the CoA, or if not acted upon, at the adjournment of the next session, regular or special, of Congress.

(1) Permanent: last until they are lawfully terminated Note: Ad interim appointment is permanent. (Matibag v. Benipayo) (2) Temporary or acting: last until a permanent appointment is issued D.

Qualification Standards and Requirements under the Civil Service Law

1. Qualification Standards (a) Minimum requirements for a class of positions in terms of education, training and experience, civil service eligibility, physical fitness, and other qualities required for successful performance. (Sec. 22, Book V, EO 292) (b) Responsibility of the departments and agencies to establish, administer and maintain qualification standards as an incentive to career advancement. (Sec. 7, Rule IV, Omnibus Rules) 2. Political Qualifications for an Office (i.e., membership in a political party) General Rule: Not required Exceptions: (a) Membership in the electoral tribunals of either the House of Representatives or Senate (Art. VI, Sec. 17, 1987 Const.); (b) Party-list representation; (c) Commission on Appointments; (d) Vacancies in the Sanggunian (Sec. 45, Local Government Code) 3. Property Qualifications: None. Inconsistent with the nature and essence of the Republican system. (Maquerra v. Borra) 4. Citizenship 5. Effect of removal of qualifications during the term: The officer must be terminated. 6. Effect of pardon upon the disqualification to hold public office General Rule: Not restore the right to hold public office. (Art. 36, RPC) Exceptions: (a) Expressly restored by the terms of the pardon (Art. 36, RPC); (b) When a person is granted pardon because he did not commit the offense imputed to him (Garcia v. Chairman, COA)

E.

Discretion of Appointing Official: Appointment is an essentially discretionary power and must be performed by the officer in which it is vested, the only condition being that the appointee should possess the qualifications required by law. (Lapinid v. CSC)

F.

Effectivity of Appointment: Immediately upon its issuance by the appointing authority. (Rule V, Sec. 10, Omnibus Rules).

G.

Effects of a complete, final and irrevocable appointment General rule: An appointment, once made, is irrevocable and not subject to reconsideration. It cannot be taken away except for cause, and with previous notice and hearing (due process). Exceptions: (a) When the appointment is an absolute nullity (Mitra v. Subido); (b) When there is fraud on the part of the appointee (Mitra v. Subido); (c) Midnight appointments (Art. VII, Sec. 15, 1987 Const.) Exception: Temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.

IV. ASSUMPTION AND TERM OR TENURE OF OFFICE A. Qualification to Office 1. Definition: The act of signifying one's acceptance of the appointive position. Generally consists of the taking / subscribing / filing of an official oath, and in certain cases, of the giving of an official bond, as required by law. (Mechem) Designates when security of tenure begins. 2. Effect of Failure to Qualify: (a) Deemed evidence of refusal of the office. (b) Ground for removal  Justifiable reasons for delay in qualifying: sickness, accident, and other fortuitous events that excuse delay.  The Omnibus Election Code provides that the officer must qualify (i.e., take his oath of office and assume office) within 6 months from proclamation. Otherwise, the position will be deemed vacant. Exception: If the non-assumption of office is due to a cause beyond his control. B. Oath of Office 1. Definition: Outward pledge whereby one formally calls upon God to witness to the truth of what he says or to the fact that he sincerely intends to do what he says.  Mere incident to the office and constitutes no part of the office itself. However, oath-taking for the President, Vice-President and Acting President are mandatory (Art. VII, Sec. 5, Const.). 2. Persons Authorized to Administer Oaths (a) Notaries public; (b) Judges;

(c) Clerks of court; (d) Secretary of House / Senate; (e) Secretary of Exec. Departments; (f) Bureau Directors; (g) Register of Deeds; (h) Provincial governors; (i) City mayors; (j) Municipal mayors; (k) Any other officer in the service of the government whose appointment is vested in the President (l) Any other officer whose duties, as defined by law or regulation, require presentation to him of any statement under oath 3. Persons Obliged to Administer Oaths in All Instances, (a) Notaries public (b) Municipal judges (c) Clerks of court 4. Time of Taking the Oath of Office: Before entering upon the discharge of his duties. 5. Requalification: If a public officer is re-elected or re-appointed, he must take another oath and fulfill the other condition precedents before assuming office. C.

Giving of Bonds

1. Bond, definition: An obligation binding the sureties to make good the officer’s default. It is in the nature of an indemnity bond rather than a penal or forfeiture bond. It is required not for the benefit of the office holder, but for the protection of the public interest and is designed to indemnify those suffering loss or injury by reason of misconduct or neglect in office. 2. Persons Required to Give Bond (a) Accountable public officers or those to whom are entrusted the collection and custody of public money; (b) Public ministerial officers whose actions may affect the rights and interests of individuals. 3. Effect of Failure to Give Bond within the Prescribed Period  If not condition precedent, merely constitutes a ground for forfeiture of the office.  If condition precedent, renders the office vacant. D.

Term and Tenure of Office

1. Term of Office and Tenure of Office Distinguished

Term of Office De jure Fixed and definite period of time during which the officer may claim to hold the office as of right

Tenure of Office De facto Period during which the incumbent actually holds the office. It may be shorter than the term.

2. Power of the Legislature to Fix and Change the Term of Office  Where the term is fixed by the Constitution, Congress has no power to alter the term BUT such term of office can be shortened or extended by the vote of the people ratifying a constitutional amendment.  Where the term is not fixed, Congress may fix the terms of officers other than those provided for in the Constitution.  Congress has the power to change the tenure of officers holding offices created by it. However, if the term is lengthened and made to apply to the incumbents, this could be tantamount to a legislative appointment which is null and void.

2. Where no time is fixed: Generally begin on the date of the election or the appointment. V. POWERS AND DUTIES OF PUBLIC OFFICERS A. Source of Government Authority: The people, the sovereignty. B.

Scope of Powers of a Public Officer: Powers expressly granted by law are within the scope of the public office. Specifically: (1) those essential to the accomplishment of the main purpose for which the office was created; or (2) those which, although incidental or collateral, are germane to and serve to promote the accomplishment of the principal purpose (Lo Cham v. Ocampo).

C.

3. When Term of Office Dependent upon "Pleasure of the President": The public officer may be removed without notice or hearing. (Alba v. Evangelista) 4. No Vested Interest in Term of Office 5. Term of Office Not Extended by Reason of War E.

Doctrine of Holdover: A public officer whose term has expired or services have been terminated is allowed to continue holding his office until his successor is appointed or chosen and had qualified. (Mechem)

1. Purpose: Public interest; to prevent a hiatus in the government pending the time when a successor may be chosen and inducted into office. 3. Holding-Over Rules  Where the law provides for it: The office does not become vacant upon the expiration of the term if there is no successor elected and qualified to assume it.  Where the law is silent: Unless hold-over is expressly or impliedly prohibited, incumbent may hold-over.  Where the Constitution limits the term of a public officer and does not provide for hold-over: Hold-over is not permitted. F.

Commencement of Term of Office

1. Where the time is fixed: Begin on the specified date.

Territorial Extent of Powers of Public Officer General Rule: Where a public officer is authorized by law to perform the duties of his office at a particular place, action at a place not authorized by law is ordinarily invalid. Exceptions: (a) Consuls; (b) Police officers, who may arrest persons for crimes committed outside Philippine territory; (c) Doctrine of hot pursuit

D.

Duration of Authority of Public Officers: Limited to that term during which he is, by law, invested with the rights and duties of the office.

E.

Construction of Grant of Powers: Strict. Construed as conferring only those powers which are expressly imposed or necessarily implied.

F.

Classification of Powers Discretionary Definition Acts which require the exercise of reason in determining when, where, and how to exercise the power. (Lamb v. Phipps)

Can be delegated?

Generally, NO. Exception: When the power to substitute / delegate has been given

When is mandamus

Only if the duty to do something has been delayed for an

Ministerial Acts performed in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done (Lamb v. Phipps) Generally, YES. Exception: When the law expressly requires the act to be performed by the officer in person and / or prohibits such delegation In all cases.

proper?

Is public officer liable?

unreasonable period. Mandamus to compel the officer to make a decision, not as to what decision. (Aprueba v. Ganzon) Generally not. Exceptions: if there is fraud or malice

B.

Liable if duty exercised contrary to the manner prescribed by law.

G. Time of Execution of Powers 1. Where not indicated: Within a reasonable time 2. Where indicated: Merely directory Exceptions: (a) When there is something in the statute which shows a different intent (Araphoe City v. Union Pac); (b) Where a disregard of the provisions of the statute would injuriously affect a public interest or public right; (c) When the provision is accompanied by negative words importing that the acts shall not be done in any other manner or time than that designated. H.

Ratification of Unauthorized Acts

1. If act was absolutely void at the time it was done: Cannot be ratified 2. If merely voidable: Can be ratified and rendered valid 3. Government not estopped by the unauthorized or illegal acts of officers. (Government v. Galarosa) I. 

Accountability and Responsibility of Public Officers and Employees Norm of Performance of Duties: standards of personal conduct provided for in Sec. 4, RA 6713 (a) Commitment to public interest; (b) Professionalism; (c) Justness and sincerity; (d) Political neutrality; (e) Responsiveness to the public; (f) Nationalism and patriotism; (g) Commitment to democracy; (h) Simple living

VI. RIGHTS AND PRIVILEGES OF PUBLIC OFFICERS A. Right to Office: Right to exercise the powers of the office to the exclusion of others.

Right to Salary or Compensation

1. General Rules:  A public officer is not entitled to compensation for services rendered under an unconstitutional statute or provision thereof. Exception: If some other statute provides otherwise.  If no compensation is fixed by law, assumed to have accepted the office to serve gratuitously.  After services have been rendered, compensation thus earned cannot be taken away by a subsequent law. However, he cannot recover salary for a period during which he performed no services.  One without legal title to office is not entitled to recover salary or compensation attached to the office.  One who intrudes into or usurps a public office has no right to the salary or emoluments attached to the office.  Compensation is not an element of public office. 2. Salary, Wages, and Per Diems Defined and Distinguished  Salary: time-bound  Wages: service-bound  Per Diem: allowance for days actually spent for special duties 3. Salary of Public Officer Not Subject to Attachment 4. Future or Unearned Salaries Cannot be Assigned 5. Agreements Affecting Compensation Held Void: This is usually with reference to unperformed services and the salary or fees attached thereto. 6. Right to Recover Salary: De Jure Officer and De Facto Officer  Where a duly proclaimed elective official who assumes office is subsequently ousted in an election protest, the prevailing party can no longer recover the salary paid to the ousted officer. Exception: If there was fraud on the part of the de facto officer which would vitiate his election. (Rodriguez v. Tan)  A de jure officer may recover from-(a) the government: when the government continues to pay the de facto officer even after the notice of adjudication of the protest in favor of the de jure officer. (b) a de facto officer: when notice of adjudication of the title to the de jure officer has been given, and the de facto officer still continues to exercise duties and receive salaries and emoluments. (c) an intruder / usurper: in all instances. 7. Additional or Double Compensation Prohibited Additional Double

negligently or willfully employs or retains unfit or improper persons; (b) Where, being charged with the duty to see that they are appointed or qualified in a proper name, he negligently or willfully fails to require them the due conformity to the prescribed regulations; (c) Where he so carelessly or negligently oversees, conducts or carries on the business of his officer as to furnish the opportunity for the default; (d) Where he has directed, authorized or cooperated in the wrong; (e) Where liability is expressly provided in the statute.

There is only 1 position, but the public officer is There are 2 positions, and with additional getting additional compensation. functions and emoluments for both positions  Pensions / gratuities are not considered as additional, double, or indirect compensation. (Sec. 8, Art. IX-B, Const.)  By its very nature, a bonus partakes of an additional remuneration or compensation. (Peralta v. Auditor General) 8. Recovery of Salary During Period of Suspension  If preventively suspended, cannot recover, but if subsequently exonerated, can recover.  If given penalty of removal, but was completely exonerated upon appeal, can recover.  If given penalty of removal, but penalty was commuted from removal to mere suspension or demotion, cannot recover because still found guilty.  If suspension / removal is unjustified, can recover. C.

Doctrine of Official Immunity: A public officer enjoys qualified, not absolute immunity. The protection generally applies only to activities within the scope of office that are in good faith and are not reckless, malicious or corrupt.

1. Purpose: To indirectly protect the sovereign by protecting the public official in the performance of his governmental function. 2. When a Public Officer if Subject to Civil Liability  The following must concur: (a) injury to the individual must be established (b) the public officer must have violated a right or duty owed to the individual claiming damages (c) the officer must have maliciously and in bad faith acted outside the scope of his / her authority (ultra vires)

6. Liability of Subordinates: A subordinate who acts in good faith under lawful orders of a superior officer is not personally liable in an action for damages. He shall be civilly liable for willful or negligent acts done by him which are contrary to law, morals, public policy or good customs, even if he acted under orders of his superior. 7. Liability for Tortuous Acts: Public officers are not immune from suit for their own tortuous conduct, even where such conduct is committed in the course of their employment. 8. Criminal Liability:  The mere fact that an officer is acting in an official capacity will not relieve him from criminal liability.  The mere expiration of the term of office of the public official will not prevent the prosecution and punishment for a misdemeanor committed in office; nor does the re-election of a public official extinguish the criminal liability incurred by him during his previous term of office. VII.

ADMINISTRATIVE DISCIPLINE

A. Over Presidential Appointees 1. Disciplinary Authority Lies with the Appointing Authority

4. Kinds of Liability of Ministerial Officers  Nonfeasance: neglect or refusal, without sufficient excuse, to perform an act which it was the officer’s legal duty to the individual to perform  Misfeasance: failure to use, in the performance of a duty owing to an individual, that degree of care, skill and diligence  Malfeasance: the doing, either through ignorance, inattention or malice, of that which the officer has no legal right to do at all

2. Power to Appoint Implies the Power to Remove; Exceptions  Justices of the Supreme Court (by impeachment)  Members of Constitutional Commissions (by impeachment)  Ombudsman (by impeachment)  Judges of inferior courts (disciplinary or removal power vested in the Supreme Court)

5. Liability of Superior Officer for Acts of Subordinate General Rule: Public officers are not civilly liable to 3rd persons for the acts of their subordinates. Exceptions: (a) Where, being charged with the duty of employing or retaining his subordinates, he

1. Grounds  Sec. 46(a), Book V of EO 292: for cause as provided by law and after due process.  Sec 46(b): Grounds constituting just cause

B. Over Non-Presidential Appointees

2. Jurisdiction



Original complaints may be filed: (a) directly with the CSC or (b) with the Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities for officers and employees under their jurisdiction.  Decisions of Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities - final where penalty imposed is suspension for not more than 30 days or fine not exceeding 30 days’ salary.  Where decision rendered by a bureau or office head is appealable to CSC - may be initially appealed to the department and finally to the CSC. Pending appeal, executory except when penalty is removal: executory only after confirmation by the Secretary concerned. (c) Decisions imposing penalty of suspension for more than 30 days or fine exceeding 30 days’ salary, demotion in rank or salary or transfer, removal or dismissal from office - appealable to the CSC. 3. Procedure in Administrative Cases Against Non-Presidential Appointees  Administrative proceedings may be commenced against a subordinate officer or employee by: Secretary or head of office of equivalent rank; head of local government; chiefs of agencies; regional directors; or upon sworn written complaint of any other person.  For complaints filed by any other person (a) Submit sworn statements covering his testimony and those of his witnesses together with his documentary evidence. (b) If, based on such papers, no prima facie case, the disciplining authority shall dismiss the case. Otherwise, notify the respondent in writing of the charges against the latter. (c) Respondent shall be allowed not less than 72 hours after receipt of complaint to answer in writing under oath, with supporting sworn statements and documents. He shall also indicate WON he elects a formal investigation if his answer is not considered satisfactory. (d) If answer is found satisfactory, dismiss the case. (e) Although respondent does not request formal investigation, one shall nevertheless be conducted when from the allegations of the complaint and the answer, including the supporting documents, the merits of the case cannot be decided judiciously without conducting such. (f) Decision shall be rendered within 30 days from termination of the investigation or submission of investigator’s report (within 15 days from conclusion of the investigation). (e) Either party may avail services of counsel and may require the attendance of witnesses and production of documentary evidence in his favor through subpoena or subpoena duces tecum. 4. Appeals and Petition for Reconsideration  Within 15 days from receipt of decision, unless petition for reconsideration is seasonably filed (petition shall be decided within 15 days).  Petition for reconsideration shall be based only on any of the following grounds: (a) new evidence has been discovered which materially affects the decision rendered; (b) decision is not supported by the evidence on record; or (c) error of law or irregularities have been committed which are prejudicial to the interests of



the respondent. Only one petition for reconsideration shall be allowed.

5. Summary Proceedings: No formal investigation is necessary and the respondent may be immediately removed or dismissed when: (a) charge is serious and evidence if guilt is strong; (b) respondent is a recidivist or has been repeatedly charged and there is reasonable ground to believe that he is guilty of the present charge; and (c) respondent is notoriously undesirable. 6. Preventive Suspension  The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending investigation, if the charge involves: (d) dishonesty; (e) oppression or grave misconduct; (f) neglect in the performance of duty; or (g) if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service. 

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Maximum period: (a) 90 days for national officials (b) 60 days for local appointive and elective officials, except if the case is filed in the Ombudsman, the latter may impose a preventive suspension for a period of 6 months. When the administrative case against the officer or employee under preventive suspension is not finally decided by the disciplining authority within 90 days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall be automatically reinstated in the service.

Bar Q & A Director X failed the lifestyle check conducted by the Ombudsman’s Office because X’s assets were grossly disproportionate to his salary and allowances. Moreover, some assets were not included in his Statements of Assets and Liabilities. He was charged with graft and corrupt practices and pending the completion of investigations, he was suspended from office for six months. Aggrieved, X petitioned the Court of Appeals to annul the preventive suspension order on the ground that the Ombudsman could only recommend but not impose the suspension. Moreover, according to X, the suspension was imposed without any notice or hearing, in violation of due process. Is X’s contention meritorious/ Discuss briefly. Answer: The contention of X is NOT meritorious. The suspension meted out to him is preventive not punitive. Section 24 of 6770 grants the Ombudsman the power to impose preventive suspension up to six months. Preventive suspension may be imposed without any notice or hearing. It is merely a preliminary step in an administrative investigation and is not the final determination of the guilt of the officer concerned. (Garcia v.

.Mojica)

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7. Penalty  Same penalties shall be imposed for similar offenses; only one penalty shall be imposed in each case.  May impose penalty of removal from service, demotion in rank, suspension for not more than 1 year without pay, fine not exceeding six months’ salary, or reprimand. (Sec. 46(d), Book V, EO 292)  If respondent is found guilty of 2 or more charges or counts, penalty should be that corresponding to the most serious charge or count and the rest may be considered as aggravating circumstances. (Sec. 17 of the Implementing Civil Service Rules and Regulations)  Reprimand, whether given by CSC or head of department or agency shall be considered a penalty. However, warning or admonition shall not be considered a penalty. (Sec. 15 of the Implementing Civil Service Rules and Regulations)  In meritorious cases and upon recommendation of the CSC, the President may commute or remove administrative penalties or disabilities imposed upon officers or employees in disciplinary cases, subject to such terms and conditions as he may impose in the interest of the service.

2. Local Elective Officials (Sec. 60-68, Local Government Code)  Grounds: (a) Disloyalty to the Republic of the Philippines (b) Culpable violation of the Constitution (c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty (d) Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor (e) Abuse of authority (f) Unauthorized absence for 15 consecutive days, except in the case of members of the sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan, and sangguniang barangay (g) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country (h) Such other grounds as may be provided in this Code and other laws.

C.

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Over Elective Officials

1. Impeachment  Procedure (a) Verified complaint may be filed by any member of the House of Representatives or by any citizen upon a resolution of endorsement by any member thereof. (b) Complaint shall be included in the Order of Business within 10 sessions days and referred to the proper Committee within 3 session days thereafter. (c) The Committee, after hearing, and by majority vote of all its members, shall submit its report to the House within 60 session days from such referral, together with the corresponding resolutions. Resolution shall be calendared for consideration of the House within 10 session days from receipt thereof. (d) Vote of at least 1/3 of all members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. (e) Where verified complaint or resolution of impeachment is filed by at least 1/3 of all the members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall proceed. (f) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President is on trial, the SC Chief Justice shall preside, but shall not vote. No person shall be convicted without the concurrence of 2/3 of all the members of the Senate.  Judgment shall not extend further than removal from office and disqualification to hold office, but the party convicted shall be liable and subject to prosecution, trial and punishment according to law.

No impeachment proceedings shall be initiated against the same official more than once within a period of 1 year.

Procedure (1) Verified Complaint Where to file: a. provincial or city official: Office of the President b. municipal official: Sangguniang Panlalawigan c. barangay official: Sangguniang Panlungsod or Sangguniang Bayan (2) Answer: Within 7 days after the administrative complaint is filed, require the respondent to submit his verified answer within 15 days from receipt thereof (3) Investigation: Commenced within 10 days after receipt of respondent’s answer. Terminated within 90 days. No investigation shall be held within 90 days immediately prior to any local election, and no preventive suspension shall be imposed within the said period. (4) Decision: Within 30 days after end of the investigation, decision in writing stating clearly and distinctly the facts and the reasons for such decision.

 Preventive Suspension (a) May be imposed at any time after the issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. (b) Upon expiration, the suspended elective official shall be deemed reinstated without prejudice to the continuation of the proceedings against him, which shall be terminated within 120 days from the time he was formally notified of the case against him. (c) No preventive suspension shall be imposed within 90 days immediately prior to any local election. If preventive suspension has been imposed prior to the 90-day period immediately preceding

local election, it shall be deemed automatically lifted upon the start of the aforesaid period. 

Administrative Appeal: Within 30 days from receipt of the decision, appeal to: (a) sanggunian panlalawigan - decisions of the sangguniang panlungsod of component cities and sangguniang bayan (b) Office of the President - decisions of the sangguniang panlalawigan, the sangguniang panlungsod of highly urbanized cities, and the sangguniang panglungsod of independent component cities

VIII. TERMINATION OF OFFICIAL RELATIONS A. Modes of Termination 1. Expiration of Term or Tenure of Office (a) End of a fixed term: Unless he is authorized by law to hold over (b) End of Pleasure where one holds office at pleasure of appointing authority (c) Loss of confidence in primarily confidential employment (Hernandez v. Villegas) 2. Reaching the age limit; Retirement  Conditions for entitlement to retirement benefits (R.A. No. 8291) (a) has rendered at least 15 years of service; (b) at least 60 years of age at the time of retirement; and (c) not receiving a monthly pension benefit from permanent total disability.  Compulsory Retirement: Unless the service is extended by appropriate authorities, retirement shall be compulsory for an employee at least 65 years of age with at least 15 years of service; Provided that if he has less than 15 years of service, he may be allowed to continue in the service in accordance with existing civil service rules and regulations. (Beronilla v. GSIS) 3. Bona fide abolition of office  To consider an office abolished, there must have been an intention to do away with it wholly and permanently.  There can be no tenure to a non-existent office. After the abolition, there is in law no occupant. The right to security of tenure disappeared with the abolished office as an accessory following the principal.  Abolition Must Be in Good Faith: To be valid, the abolition must be made in good faith, not for personal or political reasons, and not implemented in violation of law.  Reorganization: Where there is an alteration of the existing structure of government offices or units therein, including the lines of control, authority and responsibility between them to promote greater efficiency, to remove redundancy of functions, or to affect economy and make it more responsive to the needs of their public clientele. It may result in the loss of one’s position through removal or abolition of office. But in order to be valid, it must also be done in good faith. 4. Abandonment of office: Must be total and absolute, and must be under such circumstances as clearly to indicate an absolute relinquishment thereof.

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When an office is once abandoned, the former incumbent cannot legally repossess it even by forcible re-occupancy. Abandonment by reason of acceptance of another office, to be effective and binding, must spring from and be accompanied by deliberation and freedom of choice, either to keep the old office or renounce it.

5. Acceptance of an incompatible office: He who, while occupying one office, accepts another office incompatible with the first, ipso facto absolutely vacates the first office. That the second office is inferior to the first does not affect the rule, and eventhough title to the second office fails as where election is void, rule is still the same. 

If the law or Constitution forbids the acceptance by a public officer of any other office other than that which he holds, it is not a case of incompatibility but of legal prohibition.

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Incompatibility of offices exists where: (a) There is conflict in such duties and functions so that the performance of the duties of one interferes with the performance of the duties of another, as to render it improper for considerations of public policy for one person to retain both. (b) One is subordinate to the other and is subject in some degree to its supervisory powers; in such situation where both are held by the same person, the design that one acts as a check on the other would be frustrated. (c) The Constitution or the law itself, for reasons of public policy, declares the incompatibility.

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Exceptions (a) Where the officer cannot vacate the first office by his own act, as where the law requires the approval of the provincial board before a municipal official can resign. (b) First office is held under a different government from that which conferred the second. (c) Officer is expressly authorized by law to accept another office. (d) Second office is temporary.

6. Resignation: There must be an intention to relinquish a part of the term, accompanied by the act of relinquishment.  Need not be in any particular form, unless some form is prescribed by statute. May either be in writing or by parol.  Conflicting Views: (a) No acceptance is necessary to render a resignation effective. (b) To be effective, the resignation must be accepted by competent authority.  A “courtesy resignation” cannot properly be interpreted as resignation in a legal sense. It just manifests the submission of a person to the will of the political authority.  career positions with security of tenure (i.e. local elective officials).

7. Removal for cause (Sec. 2(3), Art. IX, Const.)  Grounds: (a) For Presidential appointees, there is no specific law providing for grounds for their removal. Determination of grounds is just a matter of practice and by analogy, the grounds used for non-presidential appointees are made applicable. (b) For civil service officials and employees, see Sec. 46, Book V, E.O. No. 292 which provides for at least 30 grounds for disciplinary action. (c) For local elective officials, Sec. 60 of the Local Government Code. (d) Misconduct need not be “in office” in case of appointive officers. (e) Misconduct must be “in office” in case of elective officers. (f) Misconduct committed during a prior term, not a ground for dismissal  Transfer from One Position to Another May or May Not Constitute Violation of Security of Tenure  Transfer: movement from one position to another which is of equivalent rank, level, or salary without break in service involving the issuance of an appointment.  Not considered disciplinary when made in the interest of public service - employee shall be informed of the reasons therefore. If the employee believes that there is no justification for the transfer, may appeal to the SC.  Transfer may be from one department or agency to another or from one organizational unit to another in the same department or agency, provided that any movement from the noncareer service to the career service shall not be considered a transfer. 8. Temporary appointments’ termination: What is determinative is not the nature of the office, but the nature of the appointment. 9. Recall: Procedure is provided in Secs. 69-75 of the LGC

of candidacy. (b) Sec. 11 of RA 8436: any elective official, running for any officer other than one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned upon the start of the campaign period. 15. Performance of act or accomplishment of purpose for which the office was created: Renders office functus officio. ELECTION LAW I. GENERAL PRINCIPLES A. Sources of Philippine Election Law 1. 1987 Constitution 2. BP 881 (Omnibus Election Code) 3. RA 6646 (Electoral Reforms Law of 1987) 4. RA 6679 (Barangay Elections) 5. RA 6735 (Law Providing for Initiative and Referendum) 6. RA 7166 (1991 Synchronized Elections Law) 7. RA 7941 (Election of Party-List Representatives) 8. RA 8189 (Continuing Registration) 9. RA 8436 (Automated Election System) 10. RA 8524 11. RA 9006 (Fair Election Act of 2001)

10. Impeachment

B. Theory of Popular Sovereignty: A democratic and republican government derives all its powers, directly or indirectly, from the people at large. Its essence is indirect rule. Actual sovereignty is exercised by the people by means of suffrage.

11. Prescription of right to office: Any person claiming a right to a position in the civil service is required to file his petition for reinstatement within one year, otherwise he is deemed to have abandoned his office. The one-year period presupposes judicial action, not administrative action.

C.

12. Death 13. Conviction of crime where disqualification is an accessory penalty 14. Filing of certificate of candidacy: Any person holding appointive public offices or positions, including active AFP members, is considered ipso facto resigned from office by the mere filing of certificate of candidacy. (Sec. 66 of the Omnibus Election Code)  The ff. provisions have been REPEALED by Sec. 14 of R.A. 9006 (Fair Election Act of 2001): (a) Sec. 67 of BP 881: any elective official, whether national or local, running for any office OTHER than one which he is holding in a permanent capacity, except for President and Vice President, shall be considered ipso facto resigned from office by the mere filing of a certificate

Suffrage

1. Definition: The right and obligation of qualified citizens to vote (1) in the election of certain national and local officials, and (2) in the decision of public questions submitted to the people. It is not a natural right but a privilege which may be given or withheld by the lawmaking power subject to constitutional limitations. 2. Object: Continuity of government and the preservation and perpetuation of benefits. 3. Scope: (a) Election: the means by which the people choose their officials for definite periods and to whom they entrust, for the time being as their representatives, the exercise of powers of government. (b) Plebiscite: the submission of constitutional amendments or important legislative measures to

the people for ratification. (c) Referendum: the power of the electorate to approve or reject legislation through an election called for the purpose. (Sec. 2c, R.A. 6735) It may be of 2 classes: (1) Referendum on statutes: petition to approve or reject an act or law, or part thereof, passed by Congress; and (2) Referendum on local law: petition to approve or reject a law, resolution or ordinance enacted by regional assemblies and local legislative bodies (d) Initiative: the power of the people to propose amendments to the Constitution or to propose and enact legislation through an election called for the purpose. (Sec. 2a, R.A. 6735) 3 systems: (1) Initiative on the Constitution: petition proposing amendments to the Constitution; Note: In the case of Santiago v. COMELEC, the SC held that there is no law yet that is sufficient enough for proposing amendments to the Constitution. R.A. 6735 was deemed sufficient for statutory amendments but not Constitutional amendments. (2) Initiative on statutes: petition proposing to enact a national legislation; (3) Initiative on local legislation: petition proposing to enact a regional, provincial, city, municipal or barangay law, resolution or ordinance (e) Recall: the termination of official relationship of a local elective official for loss of confidence prior to the expiration of his term through the will of the electorate. 4. Substantive Requirements for Exercise (Art. V, Sec. 1, 1987 Const.) (a) Citizenship: by birth or naturalization (b) Age: at least 18 at the time of the election (c) Residency: have resided in the Philippines for at least 1 year, and in the place wherein they propose to vote for at least 6 months immediately preceding the election.  It is not necessary that a person should have a house in order to establish his residence or domicile in a municipality. Enough that he should live there, provided that his stay is accompanied by his intention to reside therein permanently. (Marcos v. Comelec) (d) Absence of disqualifications: (1) Persons sentenced by final judgment to suffer imprisonment for not less than 1 year. (Note: he / she shall automatically re-acquire the right to vote upon the expiration of 5 years after the service of sentence.) (2) Persons adjudged by final judgment of having committed any crime involving disloyalty to the duly constituted government (e.g. rebellion, sedition, violation of the firearms law) or any crime against national security. (Note: he / she shall automatically reacquire the right to vote upon the expiration of 5 years after the service of sentence.) (3) Insane or incompetent persons as declared by competent authority. 

No literacy, property or other substantive requirement shall be imposed on the exercise of suffrage, and that Congress may not add or alter the qualifications. Congress, however, to a limited extent can regulate the right of suffrage by:  Defining qualifications of voters  Regulating elections

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Prescribing form of official ballot Providing for manner of choosing candidates and names to be printed on the ballot Regulating manner of conducting elections Suppressing whatever evils incident to the election of public officers, pursuant to its duty to secure the secrecy and sanctity of the ballots

II. THE COMELEC A. Purpose: To protect the sanctity of the ballot and to ensure the free and honest express of the popular will.  To achieve this, the COMELEC was created as an independent administrative tribunal, coequal with the other departments with respect to the powers vested in it, and not under any of the branches of Government.  To preserve the independence of the COMELEC, appointments or designations in temporary or acting capacities are not allowed. B. Composition: 7-person body consisting of a chairman and 6 commissioners.  The members of the COMELEC must have the following qualifications: (a) Natural born citizens (b) At least 35 years old (c) Holders of a college degree (d) Not candidates for any elective position in the immediately preceding elections (e) Majority of the members, including the chairman, should be members of the Bar who have been engaged in the practice of law for at least 10 years.  Chairman and commissioners are to be appointed by the President with the consent of the CoA.  Commissioners serve for 7 years without reappointment, under staggered terms of 2 years internal: of 3 commissioners first appointed, 3 shall hold office for 7 years, 2 for 5 years, and the rest for 3 years. A member appointed to fill a vacancy shall serve only for the unexpired term to preserve the staggered terms of office. The staggering of terms makes the COMELEC a continuing and self-perpetuating body, and consequently its members would have the benefit of the experience and expertise of the older members in the performance of its functions.  Commissioners are subject to the same disabilities imposed on the President and the VicePresident, including the prohibition against holding any other office or engaging in any other profession or business. C. Powers and Functions 1. Enforcement and administration of election laws and regulations (Art. IX-C, Sec. 2 (1), Const.)  Promulgation of rules and regulations  Fixing of election period (which shall commence 90 days before the election and end 30 days thereafter, unless otherwise fixed by the COMELEC in special cases)  Fixing other reasonable periods for certain pre-election requirements  Declaration of failure/postponement of elections; call for special elections  Prescribe forms, use or adoption of latest technological and electronic devices

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Annulment/ cancellation of illegal registry lists of voters and ordering the preparation of a new one; Cancellation of canvass of election returns and annulment of proclamation based on incomplete results. (Note: COMELEC does not have the power to annul an election which may not have been free, orderly, and honest; such power is merely preventive, not curative.)

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2. Quasi-judicial powers (a) Exclusive original jurisdiction over all contests relating to the election, returns and qualifications of all elective, regional, provincial and city officials. (b) Exclusive appellate jurisdiction over all contests involving municipal officials decided by the RTC, or involving elective barangay officials decided by the MTC. In these cases, the decisions therein shall be final, executory and unappealable. (Art. IX-C, Sec. 2 (2), Const.) 

Pursuant to its quasi-judicial powers, the COMELEC has the power:  To issue subpoena;  To take testimony;  Of contempt Note: This may only be exercised in the exercise of its quasi-judicial functions. No power to hold a person in contempt in the exercise of its administrative functions (e.g. reporter criticizes a contract with COMELEC for supplies, or a person fails to follow the procedure for the distribution of ballot boxes)  To issue warrants of arrest;  Of certiorari, prohibition and mandamus Note: Only in exercise of its appellate jurisdiction (Relampagos v. Cumba)

3. Decide all questions affecting elections (Art. IX-C, Sec. 2 (3), 1987 Const.)  determination of the number and location of polling places  appointment of election officials and inspectors  registration of voters However, no jurisdiction over questions involving the right to vote (i.e. disqualifications of voters, right of a person to be registered, etc.) -- exclusive original jurisdiction of the MTC, appealable to the RTC.

6. Accredit citizens' arms (Art. IX-C, Sec. 2 (5), Const.) 7. Investigation and prosecution of cases of violation of election laws (Art. IX-C, Sec. 2 (5), Const.): Has the power of a public prosecutor with the exclusive authority to conduct the preliminary investigation and the prosecution of election offenses punishable under the election law. The power may be exercised upon complaint or motu proprio. 8. Filing of petitions in court for inclusion or exclusion of voters (Art. IX-C, Sec. 2 (6), Const.) 9. Recommendatory: (a) 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 candidates. (Art. IX-C, Sec. 2 (7), Const.) (b) to the President  for removal of any officer or employee it has deputized;  for imposition of disciplinary action for violation or disregard of, or disobedience to its directive, order, or decision;  for pardon, amnesty, parole, suspension of sentence for violation of election laws, rules and regulations. 10. Supervision / Regulation, for the duration of the election period, of use of all franchises or permits for operation of:  transportation and other public utilities;  media of communication or information;  all grants, special privileges, or concessions granted by the Government or any instrumentality thereof (Art. IX-C, Sec. 4, Const.) D. Rendition of Decision

4. Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government for the exclusive purpose of ensuring free, orderly, honest, peaceful and credible elections (Art. IX-C, Sec. 2(4), Const.)  CMT cadets 18 yrs. of age and above  Any member/s of the AFP, NBI, PNP or any similar agency or instrumentality of the government (except civilian home defense forces) during campaign period and ending 30 days thereafter, when in any area of the country there are persons committing acts of terrorism to influence people to vote for or against any candidate or political party.

1. Composition: The COMELEC may sit en banc or in 2 divisions. General rule: election cases shall be heard and decided in division. Exceptions: Decisions that must be rendered by the COMELEC en banc include:  Decisions on motions for reconsideration (Art. IX-C, Sec. 3, Const.);  Petitions for correction of manifest errors in the Statement of Votes (Sec. 5, Rule 27 of the 1993 Rules of the COMELEC);  Questions pertaining to proceedings of the Board of Canvassers (Mastura v. COMELEC)  Postponement of election (Sec. 4, R.A. 7166)  Declaration of failure of election (Sec. 4, R.A. 7166)  Calling of special elections (Sec. 4, R.A. 7166)

5. Register political parties, etc. (Art. IX-C, Sec. 2 (5), Const.)

2. Time Period and Votes Required: Decide by majority vote of all its members any case or matter

brought before it within 60 days from the date of its submission for decision or resolution. (Art. IX-A, Sec. 7 Const.) 3. Judicial Review: Unless otherwise provided by the Constitution or by law, any decision, order or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within 30 days from receipt of a copy thereof. (Art. IX-A, Sec. 7, Const.)  What is contemplated are decisions, orders or resolutions rendered by the COMELEC in the exercise of its adjudicatory or quasi-judicial powers, not those which are mere incidents of its inherent administrative functions over the conduct of elections. Questions arising from the latter may be taken in an ordinary civil action before the RTC.  By certiorari, a party raises questions of law in the Supreme Court. Findings of fact made by the COMELEC are conclusive upon the Supreme Court.  The Supreme Court has no power of supervision over the COMELEC except to review its decisions on petitions by certiorari. III. ELECTIONS IN GENERAL A. Kinds of Elections 1. General election: Provided for by law for election to offices throughout the State or a certain subdivision thereof, after the expiration of the full term of former officers. 2. Special election: Provided for by law under special circumstances; an election held to fill a vacancy in an office before the expiration of the full term for which the incumbent was elected, or an election at which some issue or proposition is submitted to the vote of the qualified electors. B. Authority for Holding Elections: Conferred by the people, either directly through the Constitution or indirectly through the enactments of the legislature. C. Date of Election  In accordance with the Constitutional policy to synchronize elections, there is a simultaneous conduct of elections for national and local officials once every 3 years. RA 7166: 2nd Monday of May.  The President and Vice-President are elected on the same day every 6 years.  Senators, Elective Members of the House of Representatives, and Elective Provincial, City and Municipal Officials are elected on the same day every 3 years, except with respect to the Senators, only 12 of whom shall be elected every 3 years.  Barangay Elections are held on the same day, and every 5 years thereafter, the term for elective barangay officials having been extended from 3 years to 5 years. (R.A. 7160, Sec. 43 (c) as amended by R.A. 8524) D. Time for Holding Elections: Must be fixed by the authoritative power (i.e. the Constitution; laws in the case of regular elections; the executive or other designated power in the case of special elections). Enactments declaring the time at which an election shall be held are deemed to be matters of substance and must be substantially observed or the election will be void.

Substantial observance is sufficient and slight variations will not invalidate the election. E. Place for Holding Elections: Shall be fixed by general law or by a proclamation or by the notice by which the election is called. Such designated place shall be mandatory. In case of emergencies which necessitates the changing of a polling place, adequate general notice must be given. F. Manner of Holding Elections: Regulations prescribed are merely directory, and a failure to observe them fully will not invalidate the election, where an election has been held in good faith and irregularities do not affect the result. Where a special election is provided for, but no method of holding it is declared, it will be sufficient if it is held in the manner prescribed for the holding of general elections. IV. PRE-ELECTION REQUIREMENTS A. Precincts and Polling Places 1. Precinct (a) Definition: unit of territory for the purpose of voting (Sec. 149, BP 881) (b) Establishment of precincts:  Each barangay shall have at least 1 such precinct. (Sec. 149, BP 881)  The COMELEC may introduce adjustments, changes or new divisions or abolish precincts if necessary. But no changes shall be introduced within 45 days before a regular election and 30 days before a special election or referendum or plebiscite. (Sec. 149, BP 881)  Where it is not practicable to divide a precinct by territory, the COMELEC may adjust or split the precinct by assigning the registered voters alphabetically and equitably among the adjusted or split precinct. The polling places of the said precincts must be in the same building. (Sec. 8, R.A. 7166) 2. Polling Places (a) Definition: Building or place where the Board of Election Inspectors conducts its proceedings and where the voters cast their votes (Sec. 152, BP 881) (b) The COMELEC may introduce changes in the location of polling places when necessary after notice to the registered political parties and candidates affected if any, and hearing. No location shall be changed within 45 days before a regular election and 30 days before a special election, referendum or plebiscite except when it is destroyed or it cannot be used. (Sec. 153, BP 881) B. Official Ballots, Election Returns and Ballot Boxes 1. Form and Contents of Ballots  uniform in size;  printed in black ink on white security paper with distinctive, clear and legible watermarks;

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in the shape of a strip with stub and a detachable coupon containing the serial number of the ballot and a space for the thumbmark of the voter on the detachable coupon;  bear at the top middle portion the coat-of-arms of the Republic, the words, “Official Ballot”, the name of the city or municipality and the province, the date of the election and the following notice in English, “Fill out this ballot secretly inside the voting booth. Do not put any distinctive mark on any part of this ballot”;  contain names of all offices to be voted for;  nothing printed or written at the back except the signature of the chairman of the Board of Election Inspectors COMELEC may prescribe a different form to facilitate the voting by illiterate voters only and to use or adopt the latest technological and electronic devices in connection therewith. (Sec. 23, R.A. 7166) 2. Emergency Ballots: May be used in the event of failure to receive the official ballots on time, or where there are no sufficient ballots for all registered voters, or where they are destroyed at such time as shall render it impossible to provide other official ballots. (Sec. 182, BP 881) 3. Printing of official ballots and election returns: By the Government Printing Office and/or the Central Bank printing facilities exclusively, under the exclusive supervision and control of the COMELEC. The registered political parties or coalitions of parties (or their components should there be any dissolution or division of said coalition) whose candidates obtained at least 10% of the total votes cast in the next preceding senatorial election are each entitled to have a watcher and/or representative. C. Registration of Voters 1. Definition: Act of accomplishing and filing of a sworn application for registration by a qualified voter before the election officer of the city or municipality wherein he resides and including the same in the book of registered voters upon approval by the Election Registration Board. (Sec. 3a, R.A. 8189) 2. Election Registration Board (a) Composition: (1) Chairman: Election Officer. If disqualified, COMELEC shall designate an acting Election Officer. (2) Members: - Public school official most senior in rank; and - Local civil registrar, or in his absence, the city or municipal treasurer. If neither are available, any other appointive civil service official from the same locality as designated by the COMELEC. (b) Disqualification: relation to each other or to any incumbent city or municipal elective official within the 4th civil degree of consanguinity or affinity. 3. When registration conducted: Not less than 120 days before a regular election and 90 days

before a special election. (Sec. 8, R.A. 8189) (Akbayan v. Comelec) However, in the case of an initiative or referendum, the COMELEC is authorized to set a special registration day at least 3 weeks before the scheduled initiative or referendum. (Sec. 5, R.A. 6735) 4. Re-registration: (1) If voter transfers residence to another city or municipality; or (2) his registration has been cancelled on the ground of disqualification and such disqualification has been lifted or removed (Sec. 125, BP 881); 5. System of continuing registration: Daily in the office of the Election Officer during regular office hours, except during the period starting 120 days before a regular election and 90 days before a special election. The filing of the application must be done personally. 6. Challenge of the right to register: May be made before the Election Registration Board by any voter, candidate, or representative of a registered political party. Challenge must be made in writing, under oath and must state the grounds therefor. 7. List of voters: The Board of Election Inspectors must post the final list of voters in each precinct 15 days before the date of the regular or special election or referendum or plebiscite. 8. Inclusion-exclusion cases  Common Rules (a) Time of filing: During office hours (b) Notice: served upon the members of the Board and challenged voter upon filing of the petition. (c) Contents: refer only to 1 precinct, and shall implead the Board as respondents (d) Costs: Generally, none. However, the court may order a party to pay the costs and incidental expenses of the suit should it find that the application was filed solely to harass the adverse party and to cause him to incur expenses. (e) Intervention: any voter, candidate or political party who may be affected by the proceedings (f) Evidence: shall be based on the evidence presented. In no case shall a decision be rendered upon a stipulation of facts. If the case involves the issue of a fictitious voter, the nonappearance of the challenged voter on the day set for hearing shall be prima facie evidence that such voter is fictitious. (g) Decision: within 10 days from date of filing. Cases appealed to the RTC shall be decided within 10 days from receipt of the appeal. In all cases, the court shall decide these petitions not later than 15 days before the election and the decision shall become final and executory. 

Petition for Inclusion of Voters in the List: May apply at any time except 105 days prior to a regular election or 75 days prior to a special election. (a) any person whose application by registration has been disapproved by the Board

of Election Inspectors or (b) any person whose name has been stricken out from the list 

Petition for Exclusion of Voters in the List: May be filed at any time except 100 days before a regular election or 65 days before a special election. (a) any registered voter; (b) any representative of a political party; (c) the Election Officer

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Voters Excluded Through the Inadvertence or Registered with an Erroneous or Misspelled Name: (a) What may be filed: (1) Petition for reinstatement: filed by any registered voter who has not been included in the precinct certified list of voters (2) Petition for correction of name: filed by any registered voter who has been included in the precinct certified list of voters with a wrong or misspelled name (b) Where filed: With the Election Registration Board. If the petition is denied or not acted upon, the voter may file on any date with the proper MTC a petition for an order directing that the voter's name be entered or corrected in the list. The following must be attached to the petition: (1) Certified true copy of his registration record, or identification card, or the entry of his name in the list of voters used in the preceding election; (2) Proof that his application was denied or not acted upon by the Board; (3) Proof that the petitioner has served notice of his application to the Board

9. Annulment of Book of Voters: The book of voters shall be annulled after due notice and hearing by the COMELEC after the filing of a verified petition. No order, ruling or decision annulling a book of voters shall be executed within 90 days before an election.  Who may file: (1) any voter; (2) any election officer; (3) any duly registered political party  Grounds: (1) The book of voters was not prepared in accordance with RA 8189; (2) The book of voters was prepared through fraud, bribery, forgery, impersonation, intimidation, force, or any similar irregularity (3) The book of voters contains data that are statistically improbable 10. Deactivation of registration  Causes: (1) the 3 grounds for disqualification to vote; (2) failure to vote in 2 successive preceding regular elections (SK elections are not considered regular elections for this purpose) (3) court order for exclusion of registration

(4) loss of Filipino citizenship 11. Reactivation of registration  Petition filed: Sworn application for reactivation of registration in the form of an affidavit stating that the grounds for the deactivation no longer exist  Who may file: Any voter whose registration has been deactivated  Where filed: With the Election Officer, who shall then submit such application to the Election Registration Board for appropriate action.  When filed: Not later than 120 days before a regular election and 90 days before a special registration D. Registration of Political Parties 1. Political party, definition: An organized group of persons pursuing the same ideology, political ideas or platforms of government and includes its branches and divisions. Of 2 kinds: (1) national party - party whose constituency is spread over the geographical territory of at least a majority of the regions; and (2) regional party - party whose constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising the region. 2. Purpose of registration (1) Acquire juridical personality; (2) Qualify for subsequent accreditation; and (3) Entitle them to the rights and privileges granted to political parties 3. Rights and privileges granted  To be voted upon as a party, provided that it is registered under the party-list system (Art. IX-C, Sec. 7, Const.);  To have a watcher in every Election Registration Board (Sec. 15, R.A. 8189);  To inspect and/or copy at its expense the accountable registration forms and/or the list of registered voters in the precincts (Sec. 42, R.A. 8189)  To have a watcher and/or representative in the procurement, watermaking, printing, numbering, storage and distribution of election returns and official ballots (Sec. 8, R.A. 6646);  To have watchers who shall verify the contents of the ballot boxes (Sec. 189, BP 881. This privilege is only available to the ruling party and the dominant opposition party.);  To have one watcher in every polling place and canvassing center (Sec. 26, R.A. 7166);  To be present and to have counsel during the canvass of the election returns (Sec. 25, R.A. 6646)  To receive the 4th copy (if the dominant majority party) or the 5th copy (if the dominant minority party) of the election returns (Sec. 27, R.A. 7166 as amended by R.A. 8045 and R.A. 8173) 4. Procedure (1) The political party seeking registration may file with the COMELEC a verified petition,

attaching its constitution and by-laws, platform or program of government and such other relevant information as may be required by the COMELEC. (2) The COMELEC shall require publication of the petition for registration or accreditation in at least 3 newspapers of general circulation. (3) After due notice and hearing, the COMELEC shall resolve the petition within 10 days from the date it is submitted for decision. (Sec. 61, BP 881. Note however the discrepancy with Sec.

62 which states that resolution of the petition for registration or accreditation shall be 15 days from the date of submission for decision.)

5. Who may not be registered  religious denominations and sects (Art. IX-C, Sec. 2 (5), Const.; Sec. 61, BP 881)  those which seek to achieve their goals through violence or unlawful means (Art. IX-C, Sec. 2 (5), Const., Sec. 61, BP 881)  those which refuse to uphold and adhere to the Constitution (Art. IX-C, Sec. 2 (5), Const.)  those supported by foreign governments (Art. IX-C, Sec. 2 (5), Const.) 6. Forfeiture of status and cancellation of registration (a) Forfeiture of status: Singly or in coalition with others, fails to obtain at least 10% of the votes cast in the constituency in which it nominated and supported a candidate/s in the election next following its registration. After notice and hearing. (Sec. 60, BP 881) (b) Cancellation of registration, grounds: (1) Accepting financial contributions from foreign governments or their agencies (Art. IX-C, Sec. 2 (5), Const.); (2) Party is a religious sect or denomination, organization or association organized for religious purposes (Sec. 6 (1), R.A. 7941); (3) Party advocates violence or unlawful means to seek its goal (Sec. 6 (2), R.A. 7941); (4) Party is a foreign party or organization (Sec. 6 (3), R.A. 7941); (5) Party is receiving support from any foreign government, foreign political party, foundation, organization, whether directly (through its officers or members) or indirectly (through third parties) for partisan election purposes (Sec. 6 (4), R.A. 7941); (6) Party violates or fails to comply with election laws, rules or regulations (Sec. 6 (5), R. A. 7941); (7) Party declares untruthful statements in its petition for registration (Sec. 6 (6), R.A. 7941); (8) Party has ceased to exist for at least 1 year (Sec. 6 (7), R.A. 7941); (9) Party fails to participate in the last 2 preceding elections (Sec. 6 (8), R.A. 7941); (10) If registered under the party-list system, fails to obtain at least 2% of the votes in the 2 preceding elections for the constituency in which it has registered. (Sec. 6 (8), R.A. 7941) 7. Nomination and selection of official candidates  Pres., VP, Senators: 165 days before the date of election

 E.

Congressmen, and elective provincial, city or municipal officers: 75 days before the day of the election Registration for Party-list

1. Party-list system, definition: mechanism of proportional representation in the election of representatives to the House of Representatives from national, regional and sectoral parties or organizations or coalitions registered with the COMELEC. Component parties or organizations of a coalition may participate independently, provided the coalition of which they form part does not participate in the party-list system. (Sec. 3, R.A. 7941) 2. Purpose: To enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. (Sec. 2, R.A. 7941) 3. Who may be registered (1) Political parties (2) Sectoral parties: organized groups of citizens belonging to the labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professional sectors, and whose principal advocacy pertains to the special interest and concerns of their sector (Sec. 3d, R.A. 7941) (3) Sectoral organizations: groups of citizens or coalitions of groups of citizens who share similar physical attributes or characteristics, employment, interest or concerns (Sec. 3e, R.A. 7941) (4) Coalitions: aggrupations of duly registered national, regional, sectoral parties or organizations for political and/or election purposes (Sec. 3f, R.A. 7941)  Parties, organizations or coalitions that are already registered with the COMELEC need not register anew, but if they want to participate in the party-list system, must file with the COMELEC a manifestation of such desire to participate not later than 120 days before the election. (Sec. 4, R.A. 7941, as amended by Sec. 11, R.A. 8436) 4. Procedure for registration (1) Petition: verified by the party/organization/coalition's president or secretary. Must state its desire to participate in the party-list system as a national, regional or sectoral party or organization or a coalition. (2) When filed: Not later than 90 days before the election (3) Attachments: constitution; by-laws; platform or program of government; list of officers; coalition agreement (as applicable); other relevant information as may be required by the COMELEC (4) After due notice and hearing, the COMELEC shall resolve the petition within 15 days from the date it was submitted for decision, but not later than 60 days before election. (Sec. 5, R.A. 7941)

5. Grounds for refusal and/or cancellation of registration: same for political parties as mentioned above. 6. Nomination of party-list representatives: Submit to the COMELEC a list of not more than 5 names from which party-list representatives shall be chosen in case it obtains the required number of votes. Must be submitted not later than 45 days before the election.  Limitations: (1) Nominee must have all of a voter’s qualifications and none of the disqualifications. Must be a registered voter, able to read and write, and at least 25 years on the day of the election. (2) For youth sector nominees, must be at least 25 but not more than 30 yrs. old on the day of the election. (3) Bona fide member of the party or organization which he/she seeks to represent for at least 90 days preceding the day of the election. (4) An elected party-list representative who changes his affiliation within 6 months before an election is not eligible for nomination under his new party or organization. (5) A person may be nominated in 1 list only. (6) Only persons who have given their consent in writing may be named in the list. (7) The list cannot include any candidate for any elective office or any person who has lost his bid for an elective office in the immediately preceding election. (8) Changes of name or alterations in the order of nominees are generally not allowed after the list has been submitted to the COMELEC. Exceptions: when the nominee: (a) dies (b) withdraws his nomination in writing (c) becomes incapacitated 7. Party-list and district representatives distinguished Party-list representative District representative Scope of electorate National Legislative district Residence requirement None Resident of his legislative district for at least 1 year immediately before the election Manner of election Voted upon by party or Elected personally organization. Effect of disaffiliation with Loses his seat, will be Does not lose seat party substituted by another Effect of vacancy Substitution will be made Special election, provided that within the party the vacancy takes place at least 1 year before the next election. Effect of change in Prohibited from sitting as Does not prevent a district

affiliation within 6 months prior to election Effect of loss during previous election F.

representative under his new party or organization. Cannot sit

representative from running under his new party. Can run again

Certificates of candidacy

1. Candidate, definition: Any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of parties. (Sec. 79, BP 881)

Guest Candidacy: A political party may nominate and/or support candidates not belonging to it.

(Sec. 70, BP 881) This is not applicable in cases of political parties registered under the party-list system. 2. Qualifications: See provisions of the Constitution and LGC for the relevant candidates. Qualifications prescribed by law are continuing requirements and must be possessed for the duration of the officer's active tenure. (Frivaldo v. COMELEC; Labo v. COMELEC) 3. Filing of certificate of candidacy (a) Mode: Personally or by his duly authorized representative. (b) Time: In 12 legible copies not later than 120 days before the elections. (c) Place: (1) COMELEC main office in Manila (for President, VP, Senator) (2) Regional election director (for Congressman of NCR district) (3) City election registrar (for Congressman of district in cities outside NCR which comprise one or more legislative districts) (4) Provincial election supervisor (for Provincial offices) (5) City or municipal election registrar (for City/Municipal offices) 4. Contents of certificate of candidacy  Announcing his candidacy for the office stated therein and that he/she is eligible for such office  Political party to which the candidate belongs  Civil status  Date of birth  Residence  Post office address for all election purposes  Profession or occupation  That he/she will support and defend the Constitution and will maintain faith and allegiance thereto

   

That he/she will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities That he/she is not a permanent resident or immigrant to a foreign country That the obligation imposed by oath is assumed voluntarily, without mental reservation or purpose of evasion That the facts stated in the certificate of candidacy are true to the best of his knowledge

5. Withdrawal of certificate: Prior to the election, by submitting to the office concerned a written declaration under oath. If a candidate files a certificate of candidacy for more than 1 office, he shall not be eligible for any of them. However, he 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 provided that this is done before the expiration of the period for the filing of certificates of candidacy. The filing of the withdrawal shall not affect whatever civil, criminal, or administrative liabilities which a candidate may have incurred. 6. Disqualifications (1) Status (a) lack of Filipino citizenship (b) lack of residency requirement (c) insanity or incompetence, as declared by competent authority (d) permanent residence or immigrant status in a foreign country, unless he has waived such status in accordance with the residence requirement (2) Acts: Sentence by final judgment for: (a) subversion, insurrection, rebellion (b) offense for which he has been sentenced to more than 18 months of imprisonment; (c) offense involving moral turpitude; (d) giving money or other material consideration to influence, induce or corrupt voters or public officials performing electoral functions (e) committing acts of terrorism to enhance his candidacy (f) spending in his election campaign an amount in excess of that allowed (g) soliciting, receiving or making prohibited contributions (h) engaging in election campaign or partisan political activity outside the campaign period and not pursuant to a political party nomination (i) having removed, destroyed, obliterated, defaced or tampered with or prevented the distribution of lawful election propaganda (j) violating election rules and regulations on election propaganda through mass media (k) having coerced, intimidated, compelled, or influenced any of his subordinates, members, or employees to aid, campaign or vote for or against any candidate or aspirant for the nomination or selection of candidates (l) having directly or indirectly threatened, intimidated, or caused, inflicted or produced any violence, injury, punishment, damage, loss or disadvantage upon any person or of the immediate members of his family, his honor or property, or used fraud to compel, induce or

prevent the registration of any voter, or the participation in any campaign, or the casting of any vote, or any promise of such registration, campaign, vote, or omission therefrom (m) unlawful electioneering (n) violating the prohibition against release, disbursement or expenditure of public funds 45 days before a regular election (or 30 days in the case of a special election) (o) soliciting votes or undertaking propaganda on election day for or against any candidate or any political party within the polling place or within a 30 m radius (3) Nuisance candidacy: Filing a certificate of candidacy: (a) To put the election process in mockery or disrepute; or (b) To cause confusion among the voters by the similarity of the names of the registered candidates, or (c) Clearly demonstrating that he/she has no bona fide intention to run for the office which the certificate of candidacy has been filed, and thus prevents a faithful determination of the true will of the electorate. (Sec. 69, BP 881) (4) Falsity of material representation in the certificate of candidacy Disqualifications under the LGC (1) Sentenced by final judgment for offense punishable by 1 year or more of imprisonment and within 2 years after serving sentence (2) Removed from office as a result of an administrative case (3) Convicted by final judgment for violating the oath of allegiance to the Republic of the Philippines (4) Dual citizenship (Mercado v. Manzano) (5) Fugitives from justice in criminal and non-political cases here and abroad. Fugitive from justice: includes not only those who flee after conviction to avoid punishment, but also those who, after being charged, flee to avoid prosecution. (Marquez v. Comelec) (6) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of the LGC. (Frivaldo v. Comelec) (7) Insane or feeble-minded Special Disqualifications under the Lone Candidate Law (Sec. 4, R.A. 8295) The following are disqualified from running in a special election called to fill a vacancy, provided that evidence of guilt is strong: (1) Elective official who resigned from his office by accepting an appointive office or for whatever reason, and his previous office has become vacant due to his resignation; (2) Anyone who, directly or indirectly, coerces, bribes, threatens, harasses, intimidates, or actually causes, inflicts or produces any violence, injury, punishment, torture, damage, loss or disadvantage to any person or persons aspiring to become a candidate or that of the immediate member of his family, his honor or property that is meant to eliminate all other potential candidate. 7. Effect of death, disqualification or withdrawal

 

If a candidate of a registered or accredited political party dies, withdraws or is disqualified after the last day for filing of the certificates of candidacy: ONLY a person belonging to and certified by the same party may file a certificate of candidacy to replace him. If the death, withdrawal or disqualification occurs between the day before the election and mid-day of the election day: certificate may be filed with any Board of Election Inspectors in the political subdivision where he is a candidate or with the COMELEC if it is a national position. (Sec. 77, BP 881)

8. Petition to deny due course or to cancel certificate: Verified; may be filed by any person exclusively on the ground that a material misrepresentation contained therein as required is false; filed not later than 25 days from the time of filing of the certificate, and shall be decided not later than 15 days before the election. (Sec. 78, BP 881) V. ELECTION CAMPAIGN AND EXPENDITURES A. Election Campaign 1. Election campaign or partisan political activity: An act designed to promote the election or defeat of a particular candidate or candidates to a public office. It does not include public expressions of opinions or discussions of probable issues in a forthcoming election or on attributes or criticisms of probable candidates proposed to be nominated in a forthcoming political party convention. Prohibitions  Members of the board of election inspections (Sec. 173, BP 881)  Civil service officers or employees (Art. IX-B, Sec. 2 (4), Const.)  Members of the military (Art. XVI, Sec. 5 (3), Const.) 2. Campaign period: Prohibited for any person, political party or association of persons to engage in an election campaign or partisan political activity except during the campaign period. (Sec. 80, B.P. 881) 3. Lawful election propaganda  Pamphlets, leaflets, cards, decals, stickers, or other written or printed materials not larger than 8½x14 inches  Handwritten or printed letters urging voters to vote for or against any political party or candidate;  Cloth, paper or cardboard posters, framed or posted, not larger than 2x3 feet. Note: Streamers not larger than 3x8 feet are allowed at a public meeting or rally or in announcing the holding of such. May be displayed 5 days before the meeting or rally and shall be removed within 24 hours after such.  Paid advertisements in print or broadcast media. Requirements: (1) Bear and be identified by the reasonably legible or audible words “political advertisement paid for” followed by the true and correct name and address of the candidate or party for



whose benefit the election propaganda was printed or aired. (Sec. 4.1, R.A. 9006) (2) If the broadcast is given free of charge by the radio or TV station, identified by the words "airtime for this broadcast was provided free of charge by" followed by the true and correct name and address of the broadcast entity. (Sec. 4.2, R.A. 9006) (3) Print, broadcast or outdoor advertisements donated to the candidate or political party shall not be printed, published, broadcast or exhibited without the written acceptance by said candidate or political party. Written acceptance must be attached to the advertising contract and submitted to the COMELEC within 5 days after its signing. (Sec. 4.3, R.A. 9006, cf. Sec. 6.3, R.A. 9006) All other forms of election propaganda not prohibited by the Omnibus Election Code or the Fair Election Act of 2001.

Adiong v. Comelec: COMELEC resolution 2347 was unconstitutional insofar as it prohibits the posting of decals and stickers on cars and other moving vehicles since it infringes on the right to freedom of expression. 4. Prohibited Acts (1) For any foreigner to: (a) aid any candidate or political party, directly or indirectly; (b) take part or influence in any manner any election; (c) contribute or make any expenditure in connection with any election campaign or partisan political activity (2) For any person during the campaign period to: (a) remove, destroy, obliterate or in any manner deface or tamper with lawful election propaganda; (b) prevent the distribution of lawful election propaganda (3) For any candidate, political party, organization or any person to: (a) give or accept, directly or indirectly, free of charge, transportation, food or drinks or things of value during the five hours before and after a public meeting, on the day preceding the election, and on the day of the election; (b) to give or contribute, directly or indirectly, money or things of value for such purpose. 5. Mass Media: Equal access to media time and space (1) Print advertisements shall not exceed 1/4 page, in broadsheet and 1/2 page in tabloids thrice a week per newspaper, magazine, or other publications, during the campaign period; (2) Bona fide candidates and registered political parties running for nationally elective office are entitled to not more than 120 mins of TV advertisement and 180 mins of radio advertisement whether by purchase or by donation; (3) Bona fide candidates and registered political parties running for locally elective office are entitled to not more than 60 mins of TV advertisement and 90 mins of radio advertisement whether by purchase or by donation;

(4) Broadcast stations or entities are required to submit copies of their broadcast logs and certificates of performance to the COMELEC for the review and verification of the frequency, date, time and duration of advertisement broadcast for any candidate or political party; (5) All mass media entities are required to furnish the COMELEC with a copy of all contracts for advertising, promoting or opposing any political party or the candidacy of any person for public office within 5 days after its signing; (6) No franchise or permit to operate a radio or TV station shall be granted or issued, suspended or cancelled during the election period. 6. Rallies, meetings and other political activity  All applications for permits must immediately be posted in a conspicuous place in the city or municipal building, and the receipt thereof acknowledged in writing.  Applications must be acted upon in writing by local authorities concerned within 3 days after their filing. If not acted upon within said period, deemed approved.  Only justifiable ground for denial of the application: prior written application by any candidate or political party for the same purpose has been approved.  Denial of any application for said permit is appealable to the provincial election supervisor or to the COMELEC whose decision shall be made within 48 hours and which shall be final and executory. 7. COMELEC space, poster area, time and information bulletin  COMELEC space: Space in at least 1 newspaper of general circulation in every province or city, or in the absence of such newspaper, in any other magazine or periodical in said province or city. Allocated to the COMELEC upon payment of just compensation (Phil. Press Institute v. Comelec), and utilized exclusively by the COMELEC for public information dissemination on election-related concerns. (Sec. 8, R.A. 9006) 

COMELEC time: Airtime in at least 1 major broadcasting station or entity in every province or city, or in the absence of such entity, in any radio or TV station in said province or city. Allocated to the COMELEC free of charge, and utilized exclusively by the COMELEC for public information dissemination on election-related concerns. (Sec. 8, R.A. 9006)

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COMELEC poster area: COMELEC may authorize political parties and party-list groups to erect common poster areas for their candidates in not more than 10 public places (e.g. plazas, markets, barangay centers). Poster areas not larger than 12x16 feet or its equivalent. For independent candidates, size of common poster area not larger than 4x6 feet or its equivalent. (Sec. 9, R.A. 9006)

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COMELEC information bulletin: Contain the picture, bio-data and program of government of every candidate. Any candidate can reprint these bulletins, provided it is an exact replica and shall bear the candidate’s name who caused the reprint and the printer’s name. (Sec. 93, B.P. 881)

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COMELEC official sample ballot: To be released at least 30 days before an election. (Sec. 185, B.P. 881, as amended by R.A. 7904)

8. Public forum: Non-political non-partisan private or civic organization can initiate and hold public fora at which all registered candidates for the same office may participate to present, explain and/or debate on their campaign platforms and programs and other like issues. 9. Election surveys: Measurement of opinions and perceptions of the voters as regards a candidate's popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters' preference for candidates or publicly discussed issues during the campaign period.  Sec. 5.4 which prohibits the publication of surveys 15 days (for national candidates) or 7 days (for local candidates) before an election was declared unconstitutional (petition filed by Manila Standard and SWS, front page of Philippine Star, May 6, 2001) 10. Exit polls: May be taken subject to the following requirements: (a) Pollsters shall not conduct their surveys within 50 meters from the polling place, whether said survey is taken in a home, dwelling place and other places; (b) Pollsters shall wear distinctive clothing; (c) Pollsters shall inform the voters that they may refuse to answer; (d) Result of the exit polls may be announced after the closing of the polls on election day, and must clearly identify the total number of respondents, and the places where they were taken. Said announcement shall state that the same is unofficial and does not represent a trend. (ABSCBN v. Comelec) B. Election Contributions and Expenditures 1. Contributions  Definition: Gift, donation, subscription, loan, advance or deposit of money or anything of value, or a contract, promise or agreement to contribute, WON legally enforceable, made for influencing the results of the elections but shall not include services rendered without compensation by individuals volunteering a portion or all of their time in behalf of a candidate or political party. It shall also include the use of facilities voluntarily donated by other persons, the money value of which can be assessed based on the rates prevailing in the area. 

Prohibited contributions (1) Public or private financial institutions. But they are not prohibited if: (a) the financial institutions are legally in the business of lending money (b) the loan is made in accordance with laws and regulations AND (c) the loan is made in the ordinary course of business (2) Natural and juridical persons operating a public utility or in possession of or exploiting any natural resources of the nation;

(3) Natural and juridical persons who hold contracts or sub-contracts to supply the government or any of its divisions, subdivisions or instrumentalities, with goods or services or to perform construction or other works; (4) Natural and juridical persons who have been granted franchises, incentives, exemptions, allocations or similar privileges or concessions by the government or any of its divisions, subdivisions or instrumentalities, including GOCCs; (5) Natural and juridical persons who, within 1 year prior to the date of the election, have been granted loans or other accommodations in excess of P100,000 by the government or any of its divisions, subdivisions or instrumentalities including GOCCs; (6) Educational institutions which have received grants of public funds amounting to no less than P100,000; (7) Officials or employees in the Civil Service, or members of the Armed Forces of the Philippines; (8) Foreigners and foreign corporations, including foreign governments. (Sec. 96, BP 881) 2. Prohibited raising of funds (1) If the following are held for raising campaign funds or for the support of any candidate from the start of the election period up to and including election day: (a) dances (b) lotteries (c) cockfights (d) games (e) boxing bouts (f) bingo (g) beauty contests (h) entertainments, or cinematographic, theatrical or other performances (2) For any person or organization, civic or religious, directly or indirectly, to solicit and/or accept from any candidate 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 start of the election period up to and including election day. Note: Normal and customary religious stipends, tithes, or collections on Sundays and/or other designated collection days, are excluded. 3. Expenditures  Definition: Includes the payment or delivery of money of anything of value, or a contract, promise or agreement to make an expenditure, for the purpose of influencing the results of the election. It shall also include the use of facilities personally owned by the candidate, the money value of the use of which can be assessed based on the rates prevailing in the area. 

Limitations on aggregate amount to be spent for a campaign: (1) For Candidates (a) President and VP: P10 for every voter currently registered (b) Other candidates: P3 for every voter currently registered in the constituency where he

filed his certificate of candidacy (c) Candidates without a political party: P5 for every voter (2) For Political Parties: P5 for every voter currently registered in the constituency or constituencies where it has official candidates 

Lawful expenditures (1) Traveling expenses of candidates and campaign personnel in the course of the campaign and for personal expenses incident thereto; (2) Compensation of campaigners, clerks, stenographers, messengers, and other persons actually employed in the campaign; (3) Telegraph and telephone tolls, postage, freight and express delivery charges; (4) Stationery, printing and distribution of printed matters relative to candidacy; (5) Employment of poll watchers; (6) Rent, maintenance and furnishing of campaign headquarters, office or place of meetings; (7) Political meetings and rallies and the use of sound systems, lights and decorations during such; (8) Newspaper, radio, TV and other public advertisements; (9) Employment of counsel; cost not taken into account in determining amount of expenditures incurred; (10) Copying and classifying list of voters, investigating and challenging the right to vote of persons registered in the list; cost not taken into account in determining amount of expenditures incurred; (11) Printing sample ballots as authorized by the COMELEC; cost not taken into account in determining amount of expenditures incurred;

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Persons authorized to incur expenditures (1) Candidate; (2) Treasurer of a political party; (3) Any person authorized by such candidate or treasurer. Authority must be in writing; signed by the candidate or the treasurer; show the expenditures so authorized; state the full name and exact address of the person so designated; and be furnished the COMELEC.

4. Prohibited donations  By candidate, spouse, relative within 2nd civil degree of consanguinity or affinity, campaign manager, agent or representative; treasurers, agents or representatives of political party  During campaign period, day before and day of the election  Directly or indirectly: donation, contribution or gift in cash or in kind, or undertake or contribute to the construction or repair of roads, bridges, school buses, puericulture centers, medical clinics and hospitals, churches or chapels cement pavements, or any structure for public use or for the use of any religious or civic organization. Note: Normal and customary religious dues or contributions, as well as periodic payments for legitimate scholarships established and school contributions habitually made before the prohibited period, are excluded.

C. Duties of candidates and political parties 1. accounting of contributions and expenditures (Sec. 105, B.P. 881) 2. keeping of detailed records of contributions and expenditures (Sec. 106b, B.P. 881) 3. issuance of receipt for contribution received 4. preservation of records of contributions and expenditures for at least 3 years after the election (Sec. 106c, B.P. 881) 5. filing of statement of contributions and expenditures within 30 days after the election day. (Sec. 14, R.A. 7166). Failure to do so shall prohibit the elected officer from entering upon his duties until he has filed such, and shall constitute an administrative offense. D. Repeal of Sec. 105-112 of BP 881 as election offenses: Sec. 39 of R.A. 7166 repealed the inclusion of said provisions as election offenses, with such repeal to have retroactive effect. VI. THE ELECTION PROPER A. In General 1. What constitutes an election: Plurality of votes sufficient for a choice conditioned on the plurality of valid votes or a valid constituency regardless of the actually number of votes cast. Those who did not vote are assumed to assent to the action of those who voted. 2. Failure of elections: Causes for the declaration of such may occur before or after the casting of votes or on the day of the election. (Sec. 4, R.A. 7166) 

Grounds: (Sison v. Comelec) (1) Election in any polling place has not been held on the date fixed due to force majeure, violence, terrorism, fraud, or other analogous causes; (2) Election in any polling place had been suspended before the hour fixed for the closing of the voting due to force majeure, violence, terrorism, fraud, or other analogous causes; and (3) After the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof such election results in a failure to elect due to force majeure, violence, terrorism, fraud or other analogous causes.

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How declared: Decided by the COMELEC en banc by a majority vote of its members. (Sec. 4, R.A. 7166)

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Holding or continuation of election: COMELEC shall call for such on a date reasonably close to the date of the election not held, suspended, or which resulted in a failure to elect but not later than 30 days after the cessation of the cause of such. (Sec. 6, B.P. 881)

3. Postponement of elections: May be done by the COMELEC motu proprio or upon a verified petition by any interested party

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Grounds: violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, or other analogous cause of such a nature that the holding of a free, orderly and honest election becomes impossible in any political subdivision. (Sec. 5, B.P. 881)

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How declared: Decided by the COMELEC en banc by a majority vote of its members. (Sec. 4, R.A. 7166)



Holding of election: COMELEC shall call for such on a date reasonably close to the date of the election not held, suspended, or which resulted in a failure to elect but not later than 30 days after the cessation of the cause for such. (Sec. 5, B.P. 881)

4. Special elections: To be held to fill a permanent vacancy in the House of Representatives occurring at least 1 year before the expiration of the term, to be held not earlier than 60 days nor longer than 90 days after the occurrence of the vacancy. But if the vacancy occurs in the Senate, the special election shall be held simultaneously with the succeeding regular election. (Sec. 4, R.A. 7166) B.

Casting of votes

1. Secrecy of the ballot: A legal voter will not be compelled to disclose for whom he voted. Moreover, third persons are not permitted to testify to its purport. The voter may, however, if he chooses, waive his privilege of secrecy and voluntarily disclose the contents of his ballot. 2. Method of voting  Voiter must vote in person.  Voter must vote but once.  Voter need not vote the whole ticket. 3. Absentee voting: Under RA 7166, absentee voting as provided for in EO 157 shall apply to the elections for President, Vice-President, and Senators ONLY and shall be limited to: (a) members of the AFP (b) members of the PNP (c) other government officers and employees who are duly registered voters and who, on election day, may temporarily be assigned in connection with the performance of their election duties to places where they are not registered voters. 4. Block voting: Expressly prohibited by Art. IX-C, Sec. 7 of the 1987 Constitution. However, it must be noted that under the party-list system, votes may be counted in favor of political parties, organizations or coalitions rendered under said system. This, in a way, may be construed as the exception to the prohibition on block voting.

5. Voting hours General rule: 7 AM to 3 PM Exception: There are voters present within 30 meters in front of the polling place who have not yet cast their votes, in which case the voting shall continue but only to allow said voters to cast their votes without interruption.

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No voter shall change his ballot more than once. (Sec. 14, R.A. 8436)

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6. Authentication of the ballot: Before delivering an official ballot to the voter, the chairman of the Board of Election Inspectors shall affix his signature at the back of the ballot in the presence of the voter. Failure to do so shall be noted in the minutes of the Board of Election Inspectors and shall constitute an election offense. (Sec. 24, R.A. 7166) But, the ballot if valid even if not signed by the BEI chairman. (Punzalan v. Comelec)

Any ballot whose number does not coincide with the number of the ballot delivered to the voter, as entered in the voting record, shall be considered as spoiled and shall be so marked and signed by the members of the board of election inspectors.

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The absence of the signature of the chairman in the ballot given to a voter as proof of the authenticity of the ballot is fatal.

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Any ballot returned to the chairman whose detachable coupon has been removed not in the presence of the board of election inspectors and of the voter, shall be considered as spoiled and shall be so marked and signed by the members of the board of election inspectors.

7. Preparing the ballot and voting 

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

No voter shall be allowed to: (a) enter a booth occupied by another, nor enter the same accompanied by somebody, except as provided for in the law; (b) stay therein for a longer time than necessary (c) speak with anyone other than as provided in the law while inside the polling place. It shall be unlawful to: (a) prepare the ballot outside the voting booth; (b) exhibit its contents to any person (c) erase any printing from the ballot (d) intentionally tear or deface the same or put thereon any distinguishing mark; (e) use carbon paper, paraffin paper, or other means for making a copy of the contents of the ballot; (f) make use of any other means to identify the vote of the voter. Preparation of ballots for illiterates and disabled persons (Sec. 196, B.P. 881) (a) No voter shall be allowed to vote as an illiterate or as a physically disabled unless it is so indicated in his registration record. (b) He may be assisted in the preparation of his ballot by: (1) a relative by affinity or consanguinity within the fourth civil degree, or (2) if (1) is not available, then any person of his confidence who belongs to the same household; or (3) any member of the board of election inspectors. In no case shall an assistor assist more than 3 times. (c) The person assisting shall: (1) prepare the ballot for the illiterate or disabled voter inside the voting booth; (2) bind himself in a formal document under oath to fill out the ballot strictly in accordance with the instructions of the voter and not to reveal the contents of the ballot prepared by him.

A violation of these 2 duties shall constitute an election offense.

8. Challenge of illegal voters (Sec. 199, B.P. 881): Any voter or watcher may challenge any person offering to vote for not being registered, for using the name of another or suffering from existing disqualification. In such case, the board of election inspectors shall satisfy itself as to whether or not the ground for the challenge is true by requiring proof of registration or the identity of the voter. 

Challenge based on certain illegal acts (Sec. 200, B.P. 881), grounds: (a) that the challenged person has received or expects to receive, has paid, offered or promised to pay, has contributed, offered or promised to contribute money or anything of value as consideration for his vote or for the vote of another; (b) that he has made or received a promise to influence the giving or withholding of any such vote; or (c) that he has made a bet or is interested directly or indirectly in a bet which depends upon the result of the election. The challenged person shall take a prescribed oath before the BEI that he has not committed the acts alleged. Upon the taking of oath, the challenge shall be dismissed and the voter allowed to vote, but in case of his refusal to take such oath, challenge shall be sustained and he shall not be allowed to vote.

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Non-conclusiveness of admission of challenged vote (Sec. 201, B.P. 881): Not be conclusive upon any court as to the legality of the registration of the voter challenged or his vote in a criminal action against such person for illegal registration or voting.

9. Records or statements to be prepared and kept  Record of challenges and oaths  Minutes of voting and counting of votes  List of unused ballots

C. Counting of votes: Conducted by the BEI, which shall not adjourn or postpone or delay the count until it has been fully completed, unless otherwise ordered by the COMELEC.

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1. Board of Election Inspectors: Constituted by COMELEC for each precinct at least 30 days before the date when the voters list is to be prepared (regular election) or 15 days before a special election. (a) Composition: Chairman, poll clerk and member, all public school teachers, with priority given to those with permanent appointments. (Sec. 164, BP 881, as amended by Sec. 13, R.A. 6646) If there are not enough public school teachers, the following may be appointed for election duty: (1) teachers in private schools; (2) employees in the civil service; or (3) other citizens of known probity and competence who are registered voters of the city or municipality (b) Powers: (Sec. 168, BP 881) (1) Conduct the voting and counting of votes in their respective polling places; (2) Act as deputies of the Commission in the supervision and control of the election in the polling places wherein they are assigned, to assure the holding of the same in a free, orderly and honest manner; (3) Perform such other functions prescribed by the Omnibus Election Code or by the rules and regulations promulgated by the COMELEC (c) Prohibitions: (1) No person shall serve a chairman or member of the Board if he is related within the 4th civil degree of consanguinity or affinity to any member of the Board, or to any candidate to be voted for in the polling place or his spouse (Sec. 167, BP 881) (2) No member of the Board shall engage in any partisan political activity or take part in the election except to discharge his duties as such and to vote. (Sec. 173, BP 881) (3) No member of the Board shall, before the termination of the voting, make any announcement as to whether a certain registered voter has already voted or not, as to how many have already voted or how many so far have failed to vote, or any other fact tending to show or showing the state of the polls, nor shall he make any statement at any time as to how any person voted, except as witness before a court. (Sec. 205, BP 881) 2. Counting proper 

Counting to be public and without interruption

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Venue for counting: in any other place within a public building in the same municipality or city. The public building shall not be located within the perimeter of or inside a military or police camp or reservation nor inside a prison compound.

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Manner of counting (1) BEI shall unfold the ballots and form separate piles of 100 ballots each, which shall be held together with rubber bands, with cardboard of the size of the ballots to serve as folders. (2) The BEI chairman shall take the ballots of the first pile one by one and read the names of candidates voted for and the offices for which they were voted in the order in which they appear thereon, assuming such a position as to enable all of the watchers to read such names. (3) The chairman shall sign and affix his right hand thumbmark at the back of the ballot immediately after it is counted. (4) The poll clerk and the third member shall record on the election returns and the tally board or sheet each vote as the names voted for each office are read. (The election returns are mandated by law to be prepared simultaneously with the counting of the votes.) (5) After finishing the first pile, the BEI shall determine the total number of votes recorded for each candidate, the sum being noted on the tally board or sheet and on the election returns. In case of discrepancy such recount as may be necessary shall be made. The ballots shall then be grouped together again as before the reading. Thereafter, the same procedure shall be followed with the second pile of ballots and so on successively. (6) After all the ballots have been read, the BEI shall sum up the totals recorded for each candidate, and the aggregate sum shall be recorded both on the tally board or sheet and on the election returns. (7) It shall then place the counted ballots in an envelope provided for the purpose, which shall be closed signed and deposited in the compartment for valid ballots. (8) The tally board or sheet as accomplished and certified by the BEI shall not be changed or destroyed but shall be kept in the compartment for valid ballots. Duties of BEI in counting: confined to the conduct of the elections and the counting of votes. Counting should be liberal to effectuate the will of the electorate. Duty of the BEI to issue a certificate of the number of the votes received by a candidate upon request of the watchers. All the members of the BEI shall sign the certificate.

3. Marked ballots  Definition: Ballots containing a distinguishing mark which would tend to identify the voter who cast such ballot. 

Purpose of disallowing marked ballots: Some unscrupulous persons taking advantage of their influence or political prestige may require voters to place a distinguishing “mark” on their ballot, in consideration of some promise, reward or other valuable consideration and to which the voters would have no escape because of the distinguishing marks required of them to place on their ballots. This threatens the independence of the voters in the exercise of their right to vote.

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Effect: Invalidated in their entirety, and none of the votes therein are counted.

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Determination of marked ballots: Only in an unmistakable case where the ballot appeared to be marked, should it be rejected. The determinative factor is the existence of evidence aliunde tending to show the intention or purpose in the use of the contested manner or means of voting, which is to identify the ballots. In the absence of evidence aliunde clearly showing the intention or plan was for purposes of identification, signs on ballots are presumed accidental. A majority vote of the board of election inspectors shall be sufficient to determine whether a ballot is marked or not.

4. Appreciation of ballots 

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Guiding principles (a) Doubts are to be resolved in favor of the validity of ballots. (b) Liberal construction in reading the ballots, and intendments should be in favor of a reading which render the ballot effective. (c) Minor blemishes should not affect the validity of the ballot where the intention of the voter to vote for certain persons is discernible in the ballot. (d) Errors in spelling, honest mistakes due to ignorance or illiteracy should not defeat the intention of the voter. However, if the ballot is so defective as to fail to show any intention, it must be disregarded. Rules (Sec. 211, BP 881): Every ballot shall be presumed valid unless there is clear and good reason to reject it.

BALLOT

HOW COUNTED

Containing name of a candidate affixed thereto through any MECHANICAL process

Totally VOID

Clearly appears to have been FILLED by 2 DIFFERENT PERSONS

Totally VOID

Written with CRAYON, LEAD PENCIL or INK, wholly or in part

Valid

INITIALS only or ILLEGIBLE or does NOT sufficiently identify the candidate for whom it is intended

STRAY vote but shall not invalidate whole ballot

Vote for a person who has not filed a certificate of candidacy or in favor of a candidate for an office for which he did not present himself

STRAY vote but shall not invalidate the whole ballot

Vote for a candidate who has been disqualified by final judgment

STRAY vote but shall not invalidate the whole ballot

Only candidates’ FIRST NAME or SURNAME is written; no other candidate with same first name or surname for same office

Valid

Only candidates’ FIRST NAME is written which when read has a SOUND SIMILAR to the SURNAME of another candidate

Vote counted in favor of the candidate with such SURNAME

2 or more candidates with the SAME full name, first name or surname, one is the incumbent, and on the ballot is written ONLY full name, first name or surname

Vote counted for the INCUMBENT

Woman candidate uses her maiden name, married name, or both, there is another candidate with the SAME SURNAME

In favor of the candidate who is an INCUMBENT.

2 or more words written on the SAME LINE, ALL are surnames of 2 or more candidates

NOT be counted for any of them unless one is the surname of the incumbent who has served for at least 1 year –for the INCUMBENT

2 or more words are written on DIFFERENT LINES, ALL are surnames of 2 or more candidates with the same surname for an office which the law authorizes the election of more than one and there are the same of such surnames written as there are candidates with that surname

In favor of ALL candidates bearing the surname

1 word is written which is the FIRST NAME of a candidate and which is also the SURNAME of his opponent

Vote counted for the OPPONENT (SURNAME)

2 words written, 1 of which is the FIRST NAME of the candidate and the other is the SURNAME of his opponent

Vote shall NOT be counted for either

Name or surname INCORRECTLY WRITTEN which when read has a sound similar to the name or surname of a candidate when correctly written (Idem sonans rule)

Vote counted in favor of such a candidate

Name or surname of a candidate appears in the

Counted for the office for which he is

space for an office for which he is a candidate and for an office for which he is NOT a candidate

running for. Vote for the office for which he is not a candidate, STRAY vote except when it used to identify the voter, VOID.

Name of a candidate is NOT written in the PROPER SPACE on the ballot but is preceded by the name of the office for which he is a candidate

Vote counted for the candidate

Words written on the appropriate blank is the IDENTICAL NAME, SURNAME or FULL NAME of 2 or more candidates for the SAME OFFICE, none of whom is the incumbent

Vote counted for candidate to whose ticket belong all the other candidates voted for in the same ballot for the same constituency.

PREFIXES: Sr., Mr., Datu, Don, Ginoo, Hon., Gob. or SUFFIXES: Hijo, Jr., Segundo

Valid

CIRCLES, CROSSES, LINES on spaces which the voter has not voted

NOT invalidate the ballot

Space appears a name of a candidate that is ERASED and another CLEARLY WRITTEN

Vote for the one CLEARLY WRITTEN

UNINTENTIONAL or ACCIDENTAL flourishes, strokes, strains NICKNAMES and APPELATIONS of affection and friendship accompanied by FIRST NAME or SURNAME of the candidate

NOT annul it except when used to identify the voter: VOID

NICKNAME used is one by which the candidate is generally or POPULARLY KNOWN in the locality and UNACCOMPANIED by a first name or surname of the candidate

Counted for the candidate IF there is no other candidate for the same office with the same nickname

CORRECTLY written FIRST NAME of the candidate with a DIFFERENT SURNAME

NOT counted for any candidate having such first name BUT valid for other candidates

2 or more candidates are voted for an office which the law authorizes election of only ONE

NOT counted in favor of any of them BUT the ballot is considered valid for other candidates

Candidates voted for EXCEED the number of those to be elected

Valid BUT the votes counted are those names which were FIRST WRITTEN by the voter until the authorized number is covered Valid

ACCIDENTAL tearing or perforation

NOT annul it

Failure to remove the DETACHABLE COUPON

NOT annul it

Erroneous initial of FIRST NAME accompanied by CORRECT SURNAME of the candidate

NOT annul it

Totally written in ARABIC in localities where it is of GENERAL USE

Erroneous initial of SURNAME accompanied by CORRECT FIRST NAME of the candidate

NOT annul it

4. Election returns

Erroneous MIDDLE INITIAL

NOT annul it

There exists another person who is NOT a candidate with the same first name or surname of a candidate

NOT annul it

COMMAS, DOTS, HYPHENS between the first name and surname of the candidate or on other parts of the ballot Traces of letter “T” or “J” or similar ones First letters or syllables of names which the voters does not continue

NOT invalidate it unless it clearly appears that they were deliberately put by the voter as IDENTIFICATION marks: VOID

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Definition: Official document containing the date of the election, the province, municipality and the precinct in which it is held, and the votes received by each candidate written in figures and in words. It is the document on which the Certificates of Canvass are based, and is the only document that constitutes sufficient evidence of the true and genuine results of the elections. (Garay v. COMELEC)

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Number of copies and their distribution (Sec. 27, R.A. 7166, as amended by R.A. 8045 and R.A. 8173): BEI shall prepare in their handwriting the returns in their polling places, in the number of copies provided and in the form to be prescribed by the COMELEC. (a) President, VP, Senators, Congressmen: 1st Copy: City or municipal board of canvassers 2nd Copy: Congress, directed to the Senate President 3rd Copy: COMELEC 4th Copy: Dominant majority party as determined by COMELEC

5th Copy: Dominant minority party as determined by COMELEC 6th Copy: Citizens' arm authorized by the COMELEC to conduct an unofficial count 7th Copy: Deposited inside the compartment of the ballot box for valid ballots (b) Local officials: 1st Copy: City or municipal board of canvassers 2nd Copy: COMELEC 3rd Copy: Provincial board of canvassers 4th Copy: Dominant majority party, as determined by the COMELEC 5th Copy: Dominant minority party, as determined by the COMELEC 6th Copy: Citizens' arm authorized by the COMELEC to conduct an unofficial count 7th Copy: Deposited inside the compartment of the ballot box for valid ballots 

the election returns, which are the results of the ballot count at the precinct level. 2. Nature of canvass proceedings: Administrative and summary in nature. 3. Composition of Board of Canvassers (Sec. 221, BP 881, as amended by Sec. 20, RA 6646) PROVINCIAL CITY MUNICIPAL Chairman

Provincial election supervisor or lawyer in the COMELEC regional office

City election registrar or a lawyer of COMELEC;

Provincial fiscal

City fiscal

Municipal treasurer

Provincial superintendent of schools

City superintendent of schools

Most senior district school supervisor or in his absence, a principal of the school district or elementary school

Announcement of results: The BEI chairman shall make an oral and public announcement of the total number of votes in the polling place for each candidate upon the completion of the election returns.

5. Issuance of the certificate of votes 

Definition: Document which contains the number of votes obtained by each candidate written in words and figures, the number of the precinct, the name of the city or municipality and province, the total number of voters who voted in the precinct, and the date and time issued. It must be signed and thumbmarked by each member of the Board. (Sec. 16, R.A. 6646)

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Duty of the BEI to issue certificate (Sec. 16, R.A. 6646) Refusal to do so constitutes an election offense. (Sec. 27, R.A. 6646)

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Admissibility in evidence: (a) To prove tampering, alteration, falsification or any anomaly committed in the election returns concerned, when duly authenticated by testimonial or documentary evidence presented to the Board of Canvassers by at least 2 members of the BEI who issued the certificate. This is notwithstanding the provisions of Secs. 235 and 236 of BP 881. (b) Of the votes obtained by the candidates. (Balindong v. Comelec) But does not constitute sufficient evidence of the true and genuine results of the elections. (Garay v. Comelec) (c) Failure to present certificate shall be a bar to the presentation of other evidence to impugn the authenticity of the election returns. (Sec. 17, R.A. 6646)

D. Canvass 1. Canvass and certificate of canvass defined: The canvass refers to the process by which the results in the election returns are tallied and totalled. Certificates of canvass are official tabulations of votes accomplished by district, municipal, city and provincial canvassers based on

Vice Chairman Member

Election registrar or COMELEC representative

In cities with more than 1 election registrar, COMELEC shall designate

In case of non-availability, absence, disqualification due to relationship, or incapacity for any cause of any of the members, COMELEC may appoint the following as substitutes, in the order named:

Chairman Vice Chairman

PROVINCIAL

CITY

MUNICIPAL

Ranking lawyer of the COMELEC (1) Provincial auditor (2) Registrar of Deeds (3) Clerk of Court nominated by the Executive Judge of the RTC; (4) Any other available appointive

Ranking lawyer of the COMELEC (1) City auditor or equivalent; (2) Registrar of Deeds; (3) Clerk of Court nominated by the Executive Judge of the RTC; (4) Any other available appointive city official

Ranking lawyer of the COMELEC (1) Municipal Administrator; (2) Municipal Assessor; (3) Clerk of Court nominated by the Executive Judge of the MTC; (4) Any other available appointive municipal official

Member

provincial official Same as for ViceChairman

  Same as for ViceChairman

Same as for ViceChairman

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4. Prohibitions on BOC (1) Chairman and members shall not be related within the 4th civil degree of consanguinity or affinity to any of the candidates whose votes will be canvassed by said board, or to any member of the said board. (Sec. 222, B.P. 881) (2) No member or substitute member shall be transferred, assigned or detailed outside of his official station, nor shall he leave said station without prior authority of the COMELEC during the period beginning election day until the proclamation of the winning candidates. (Sec. 223, B.P. 881) (3) No member shall feign illness to be substituted on election day until the proclamation of the winning candidates. Feigning of illness constitutes an election offense. (Sec. 224, B.P. 881)

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5. Jurisdiction of COMELEC over BOC: COMELEC has direct control and supervision over the BOC. Any member may, at any time, be relieved for cause and substituted motu proprio by the COMELEC. (Sec. 227, B.P. 881) COMELEC has the power to investigate and act on the propriety or legality of the canvass of election returns made by the BOC. 6. Nature of BOC’s duties: To compile and add the results as they appear in the election returns transmitted to it. 

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When ministerial: If there are no irregularities in the election returns, duty consists in the simple matter of arithmetic. Once the COMELEC or the BOC is satisfied in the authenticity of the returns, it has no power to look beyond the face thereof, and its task of tallying is merely ministerial. When there is an error in the computation which is discovered after proclamation, the BOC can simply correct the error; the remedy being purely administrative.

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Certificate of canvass: Signed and affixed with the imprint of the thumb of the right hand of each BOC member, supported by a statement of the votes received by each candidate in each polling place and, on the basis thereof, proclaim as elected the candidates who obtained the highest number of votes cast in the province, city, municipality or barangay. (Sec. 231, B.P. 881) Failure to comply with this requirement shall constitute an election offense.

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Statement of votes: Tabulation per precinct of votes garnered by candidates as reflected in the election returns; its preparation is an administrative function of the board, purely a mechanical act over which COMELEC has direct control and supervision. It supports the certificate of canvass and is the basis of proclamation. Failure to object to the Statement of Votes before the Board of Canvassers does not constitute a bar to raising the issue for the first time before the COMELEC.

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Number of copies of certificates of canvass and their distribution (Sec. 29, R.A. 7166)

When quasi-judicial: When the returns are found to be obviously manufactured, contrary to probabilities, clearly falsified, or not legible.

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BOC must meet not later than 6:00 PM on election day to receive the election returns and canvass those received. BOC must meet continuously from day to day until the canvass is completed. May adjourn only for awaiting other election returns. When it adjourns, it shall make a total of all votes canvassed so far for each candidate for each office furnishing the COMELEC in Manila a certified copy and to make available copies to the media and other interested parties. BOC must resume canvassing once more returns are received.

Principles governing canvass proceedings (a) Strong prima facie case backed up by a specific offer of evidence, and an indication of its nature and importance has to be made out to warrant the reception of evidence aliunde, for the presentation of witnesses and the delays necessarily entailed thereby. (b) When COMELEC has determined after investigation and examination of the voting and registration records that actual voting and election took place in the questioned precincts, election returns cannot be disregarded but are accorded prima facie status as bona fide reports of the result of voting for canvassing and proclamation purposes. (c) COMELEC should guard against proclamation grabbing and against attempts to paralyze the canvassing and proclamation. (d) To allow a respondent to raise belated questions before the COMELEC as to the returns during the review of a case before the COMELEC, which question has not been raised before the board of canvassers, would mean undue delays in the pre-proclamation proceedings. (e) The Supreme Court can review the decisions of COMELEC only in cases of grave abuse of discretion in the discharge of quasi-judicial powers and not in the exercise of its administrative duties.

8. Preparation of certificate of canvass and statement of votes

7. Canvass by the BOC (Sec. 231, B.P. 881) 

The canvass proceedings must be open and in public. A majority vote of all the members of the Board of Canvassers is needed in order to render a decision. Time to complete canvass (subject to reasonable exceptions) (a) Municipalities: 36 hours (b) Cities not comprising at least 1 legislative district: 36 hours (c) Cities comprising at least 1 legislative district: 48 hours (d) Provinces: 72 hours

(1) City or Municipal Board of Canvassers: 7 copies to be distributed as follows: 1st copy: Provincial board of canvassers – for canvassing of election results for President, Vice-President, Senators, Members of the House of Representatives and Elective Provincial Officials 2nd copy: COMELEC 3rd copy: To be kept by the BOC chairman 4th copy: Citizens' arm designated by the COMELEC to conduct media-based unofficial count 5th to 7th copies: Representatives of any 3 of 6 major political parties according to the voluntary agreement of the parties; if there is no agreement, COMELEC shall decide based on the criteria under sec. 26 of RA 7166 (2) City Boards of Canvassers of cities comprising one or more legislative districts, Provincial Boards of Canvassers, and District Boards of Canvassers in the Metro Manila area: 7 copies to be distributed as follows 1st copy: Congress, directed to the Senate President for use in the canvass of election results for President and Vice-President 2nd copy: COMELEC, for use in the canvass of the election results for Senators 3rd copy: To be kept by the BOC chairman 4th copy: Citizens' arm designated by the COMELEC to conduct media-based unofficial count 5th to 7th copies: Representatives of any 3 of 6 major political parties according to the voluntary agreement of the parties; if there is no agreement, COMELEC shall decide based on the criteria under sec. 26 of RA 7166 9. Congress as the National BOC (Sec. 30, R.A. 7166): Congress shall determine the authenticity and due execution of the certificate of canvass for President and Vice President as accomplished and transmitted by the local board of canvassers, on a showing that: (1) Each certificate was executed, signed and thumbmarked by the chairman and members of the board of canvassers and transmitted to Congress by them; (2) Each certificate contains the names of all the candidates for President, VP, and their corresponding votes in words and in figures; and (3) There exists no discrepancy in other authentic copies of the certificate or in the votes both in words and figures in the same certificate. 

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Completion of certificate of canvass: The Senate President shall require the BOC concerned to transmit (by personal delivery within 2 days from notice) the election returns from the polling places that were not included in the certificate of canvass and supporting statements. When there appear erasures or alterations in the certificate of canvass which may cast doubt as to the veracity of the number of votes stated and may affect the result of the election, Congress shall, for the sole purpose of verifying the actual number of votes, count the votes as they appear in the copies of the election returns submitted to it, upon request of a presidential or vice-presidential candidate or their party. (Sec. 30, R.A. 7166) Canvass of votes for the president and VP (Sec. 24, R.A. 8436)

(a) The certificates of canvass for President and VP shall be duly certified by the BOC of each province or city. (b) The certificates of canvass for President and VP shall be transmitted to Congress, directed to the Senate President. Upon receipt of the certificates of canvass, the Senate President shall not later than 30 days after the day of the election open all the certificates in the presence of the Senate and the House in joint public session. (c) Congress upon the determination of the authenticity and due execution thereof, shall canvass the votes. (d) The person having the highest number of votes shall be proclaimed elected. In case 2 or more persons shall have an equal and highest number of votes, one of them shall be chosen by vote of majority of all the members of both the Senate and the House, voting separately. 10. Proclamation 

Duty of BOC: After the canvass of election returns, in the absence of a perfected appeal to the COMELEC, proclaim the candidates who obtained the highest number of votes cast in the province, city, municipality or barangay, on the basis of the certificates of canvass. Failure to comply with this duty constitutes an election offense. (Sec. 231, B.P. 881)

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When proclamation void: When it is based on incomplete returns (Castromayor v. Comelec) or when there is yet no complete canvass (Jamil v. Comelec). A void proclamation is no proclamation at all, and the proclaimed candidate’s assumption into office cannot deprive the COMELEC of its power to annul the proclamation.

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Partial proclamation (Sec. 21, R.A. 7166): Notwithstanding pendency of any pre-proclamation controversy, COMELEC may summarily order proclamation of other winning candidates whose election will not be affected by the outcome of the controversy.

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Election resulting in a tie (Sec. 240, B.P. 881): BOC, by resolution, upon 5 days notice to all tied candidates, shall hold a special public meeting at which the board shall proceed to the drawing of lots of tied candidates and shall proclaim as elected the candidates who may be favored by luck. Tie: when: (a) 2 or more candidates receive an equal and highest number of votes; or (b) 2 or more candidates are to be elected for the same position and 2 or more candidates received the same number of votes for the LAST PLACE in the number to be elected.

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Proclamation of a lone candidate (R.A. 8295): Upon the expiration of the deadline for the filing of certificates of candidacy in a special election called to fill a vacancy in an elective position other than for President and VP, when there is only 1 qualified candidate, he shall be proclaimed elected without holding the special election upon certification by the COMELEC that he is the only candidate for the office and is therefore deemed elected. (Sec. 2)

VII. MODES OF CHALLENGING CANDIDACY & ELECTION RESULTS A. Nuisance candidates and cancellation of certificate of candidacy 1. Declaration of nuisance candidacy(Sec. 5, R.A. 6646)   

Grounds: See discussion under Certificate of Candidacy. Nature of proceedings: Summary. In lieu of oral testimonies, the parties may be required to submit position papers together with affidavits or counter-affidavits and other documentary evidence. Procedure: (a) What filed: verified petition (b) Who may file: any registered candidate for the same office (c) When filed: Within 5 days from the last day for the filing of certificates of candidacy (d) Where filed: With the COMELEC (e) Procedure: (1) Petition is filed personally or through duly-authorized representative. (2) Within 3 days from the filing of the petition, the COMELEC shall issue summons to the respondent candidate, together with a copy of the petition and its enclosures, if any. (3) Respondent shall have 3 days from receipt of the summons to file his verified answer (not a motion to dismiss), serving copy upon the petitioner. Grounds for a motion to dismiss may be raised as an affirmative defense. (4) COMELEC may then designate any of its officials who are lawyers to hear the case and receive evidence. In lieu of oral testimonies, the parties may be required to submit position papers with affidavits or counter-affidavits and other documentary evidence. The hearing officer shall immediately submit to the COMELEC his findings, reports, and recommendations within 5 days from the completion of submission of evidence. (5) COMELEC shall render its decision within 5 days from receipt of the findings of the hearing officer. Decision shall be disseminated by the COMELEC to the city or municipal election registrars, BEI, and the general public in the political subdivision concerned within 24 hours through the fastest available means. (6) After 5 days from receipt of the parties, decision becomes final and executory unless stayed by the Supreme Court.

2. Cancellation of certificate of candidacy 

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Grounds: (1) False material representation in the certificate of candidacy; (2) If the certificate filed is a substitute Certificate of Candidacy, when it is not a proper case of substitution under Sec. 77 of BP 881 Nature of proceedings: Summary

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Procedure: (a) Who may file: any citizen of voting age, or a duly registered political party, organization, or coalition of political parties (b) When filed: Within 5 days from the last day for the filing of certificates of candidacy (c) Where filed: With the Law Dept of the COMELEC

B. Pre-proclamation controversies 1. Meaning: Any question or matter pertaining to or affecting the proceedings of the board of canvassers, or any matter raised under Sec. 233-236 of BP 881 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns. (Sec. 241, BP 881) 2. Jurisdiction: COMELEC has exclusive jurisdiction over pre-proclamation cases. It may order, motu proprio or upon written petition, the partial or total suspension of the proclamation of any candidate-elect or annul partially or totally any proclamation, if one has been made. (Sec. 242, BP 881) 3. When not allowed: For the positions of President, VP, Senator, and Member of the House of Representatives (Sec. 15, R.A. 7166) 4. Nature of proceedings: Heard summarily by the COMELEC after due notice and hearing. This is because canvass and proclamation should be delayed as little as possible. 5. Issues that may be raised: This enumeration is restrictive and exclusive: (1) Illegal composition or proceedings of the board of election canvassers (2) Canvassed election returns are either: (a) incomplete (b) contain material defects (c) appear to be tampered with or falsified (d) contain discrepancies in the same returns or in other authentic copies (3) The election returns were: (a) prepared under duress, threats, coercion, intimidation or (b) obviously manufactured or not authentic (4) Substituted or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate(s). (5) Manifest errors in the Certificates of Canvass or Election Returns (Sec. 15, R.A. 7166; Chavez v. COMELEC, 211 SCRA 315) 6. Issues that cannot be raised (1) Appreciation of ballots, as this is performed by the BEI at the precinct level and is not part of the proceedings of the BOC (Sanchez v. Comelec) (2) Technical examination of the signatures and thumb marks of voters (Matalam v. Comelec) (3) Prayer for re-opening of ballot boxes (Alfonso v. Comelec)

(4) Padding of the Registry List of Voters of a municipality, massive fraud and terrorism (Ututalum v. Comelec) (5) Challenges directed against the Board of Election Inspectors (Ututalum v. Comelec) (6) Fraud, terrorism and other illegal electoral practices. These are properly within the office of election contests over which electoral tribunals have sole, exclusive jurisdiction. (Loong v. Comelec) 7. Procedure (a) Questions involving the composition or proceedings of the board of canvassers, or correction of manifest errors Where: Either in the Board of Canvassers or directly with the COMELEC. (Sec. 17, R.A. 7166) When: (1) If petition involves the illegal composition or proceedings of the board, must be filed immediately when the board begins to act as such (Laodeno v. Comelec), or at the time of the appointment of the member whose capacity to sit as such is objected to if it comes after the canvassing of the board, or immediately at the point where the proceedings are or begin to be illegal. Otherwise, by participating in the proceedings, the petitioner is deemed to have acquiesced in the composition of the BOC. (2) If the petition is for correction, it must be filed not later than 5 days following the date of proclamation, and must implead all candidates who may be adversely affected thereby. (Sec. 5(b), Rule 27, COMELEC Rules of Procedure) Procedure: (1) If filed with the Board first: (a) Petitioner submits his objection to the BOC chairman. (b) The Board makes its ruling. (c) Within 3 days from the ruling, the parties adversely affected may appeal the matter to the COMELEC. (d) Upon appeal, the COMELEC shall summarily decide the case within 5 days from the filing thereof. (Sec. 19, R.A. 7166) (2) If initiated directly with COMELEC: (a) Petitioner files petition with the COMELEC. (b) Upon the docketing of such petition, the Clerk of Court concerned shall issue summons with a copy of the petition to respondents. (c) The Clerk of Court concerned shall immediately set the petition for hearing. The COMELEC shall hear and decide the petition en banc. (a) Matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns and certificates of canvass Where: Only with the Board of Canvassers When: At the time the questioned return is presented for inclusion in the canvass. Who: Any candidate, political party or coalition of political parties Procedure: Mandatory. Non-compliance with any of the steps above is fatal to the pre-

proclamation petition. (1) The contesting party makes an oral objection to the BOC chairman at the time the questioned return is presented for inclusion in the canvass. Such objection is recorded in the minutes of canvass. Simultaneous with the oral objection, the objecting party enters his objection in the form for written objections prescribed by the COMELEC. (2) Upon receipt of such objection, the Board automatically defers the canvass of the contested returns and proceeds to canvass the returns which are not contested by any party. (3) Within 24 hours from and after the presentation of such objection, the objecting party submits the evidence in support of the objection, which shall be attached to the form for written objections. (4) Within the same 24-hour period, any party may file a written and verified opposition to the objection in the prescribed COMELEC form, attaching supporting evidence, if any. The Board shall not entertain any objection or opposition unless reduced to writing in the prescribed forms. (5) The Board chairman immediately and formally admits the evidence attached to the objection or opposition by affixing his signature at the back of each and every page thereof. (6) Upon receipt of the evidence, the Board considers the objection and the opposition, and summarily rules on the objection. The Board then enters its ruling on the prescribed form and authenticates the same by entering the signatures of all its members. (7) The parties adversely affected by the ruling immediately inform the Board if they intend to appeal the ruling. Such information is then entered in the minutes of canvass. (8) The Board then sets aside the returns and proceeds to consider the other returns. The Board then suspends the canvass after all the uncontested returns have been canvassed and the contested return ruled upon by it. (9) Within 48 hours from the ruling, the party adversely affected files a written and verified notice of appeal with the Board. The party then files an appeal with the COMELEC within a non-extendible period of 5 days thereafter. (10) Immediately upon receipt of the notice of appeal, the Board makes an appropriate report to the COMELEC, elevating therewith the complete records and evidence submitted in the canvass, and furnishing the parties with copies of the report. (11) The COMELEC summarily decides the appeal within 7 days from receipt of the record and evidence elevated to it by the Board. (12) The COMELEC's decision becomes executory after the lapse of 7 days from receipt thereof by the losing party. (13) The COMELEC then authorizes the Board of Canvassers to proceed with the proclamation of the winner. Any proclamation made without COMELEC authorization is void ab initio, unless the contested returns do not adversely affect the results of the election. (Sec. 20, R.A. 7166)

8. Effect of filing of pre-proclamation controversy  The period to file an election contest shall be suspended during the pendency of the preproclamation contest in the COMELEC or the Supreme Court.  The right of the prevailing party in the pre-proclamation contest to the execution of COMELEC’s decision does not bar the losing party from filing an election contest.  Despite the pendency of a pre-proclamation contest, the COMELEC may order the proclamation of other winning candidates whose election will not be affected by the outcome of the controversy. 9. Effect of proclamation of winning candidate General rule: A pre-proclamation controversy shall no longer be viable after the proclamation and assumption into office by the candidate whose election is contested. The remedy is an election protest before the proper forum. (Mayor v. Comelec) Exceptions: The prevailing candidate may still be unseated eventhough he has been proclaimed and installed in office if: (1) The opponent is adjudged the true winner of the election by final judgment of court in an election contest; (2) The prevailing party is declared ineligible or disqualified by final judgment of a court in a quo warranto case; or (3) The incumbent is removed from office for cause. C. Petition to annul or suspend proclamation  The filing of the petition suspends the running of the period to file an election protest. (Alangdeo v. Comelec)  No law provides for a reglementary period within which to file a petition for the annulment of an election if there is as yet no proclamation. (Loong v. Comelec) D. Declaration of failure of election  Grounds: See previous discussion under Election Proper.  Nature of proceedings: Neither an election protest nor a pre-proclamation controversy. (Borja v. Comelec)  Jurisdiction: COMELEC, sitting en banc, may declare a failure of election by a majority vote of its members.  Requisites: The following conditions must concur: (1) No voting has taken place in the precincts concerned on the date fixed by law, or even if there was voting, the election nonetheless resulted in a failure to elect; and (2) The votes cast would affect the results of the election.  Procedure: (1) Petitioner files verified petition with the Law Department of the COMELEC. (2) Unless a shorter period is deemed necessary by circumstances, within 24 hours, the Clerk of Court concerned serves notices to all interested parties, indicating therein the date of hearing, through the fastest means available.

(3) Unless a shorter period is deemed necessary by the circumstances, within 2 days from receipt of the notice of hearing, any interested party may file an opposition with the Law Department of the COMELEC. (4) The COMELEC proceeds to hear the petition. The COMELEC may delegate the hearing of the case and the reception of evidence to any of its officials who are members of the Philippine Bar. (5) The COMELEC then decides whether to grant or deny the petition. This lies within the exclusive prerogative of the COMELEC. E. Disqualification cases  Grounds: See previous discussion under Certificates of Candidacy.  Priority of disqualification cases: A final decision shall be rendered not later than 7 days before the election in which the disqualification is sought. (Sec. 72, BP 881)  Procedure: (1) Who may file: Any citizen of voting age, or any duly registered political party, organization or coalition of political parties (2) Where: Law Department of the COMELEC (3) When: Any day after the last day for filing of certificates of candidacy, but not later than the date of proclamation  Effect: Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected, does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. F. Election contests 1. Definition: Adversarial proceedings by which matters involving the title or claim to an elective office, made before or after proclamation of the winner, is settled WON the contestant is claiming the office in dispute. The purpose of an election contest is to ascertain the candidate lawfully elected to office. 2. Nature: Imbued with public interest. Must be liberally construed to favor the will of the people. 3. Jurisdiction (a) Supreme Court: sitting en banc, shall be the sole judge of all contests relating to the election, returns, and disqualifications of the President, VP, and may promulgate its rules for such purpose. (Art. VII, Sec. 4, 1987 Const.) (b) Electoral Tribunals of the Senate and House of Representatives (c) COMELEC: exclusive original jurisdiction over all election contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials (may be appealed to SC). Appellate jurisdiction over all contests involving elective municipal officials decided by RTCs or involving elective barangay officials decided by MTCs (final and not

appealable, but does not preclude a petition for certiorari to the SC). (Galido v. Comelec) (d) Regional and Municipal Trial Courts: exclusive original jurisdiction over municipal and barangay officals. Cases involving qualifications of candidates for the Sangguniang Kabataan filed before the election are decided by the Election Officer, while those filed after the election are decided by the MTCs. 4. Powers of COMELEC in relation to election cases (1) Power to decide election cases, which includes the power to determine the validity or nullity of votes. (2) Power to issue writs of certiorari, prohibition, and mandamus, but can only be exercised in aid of its appellate jurisdiction. 5. Kinds of election contests (1) Election protest (a) Who may file: Any candidate who has filed a certificate of candidacy and has been voted upon for the same office, and who has not himself caused or contributed to the irregularities or frauds of which he complains (b) Grounds: Fraud, terrorism, irregularities or illegal acts committed before, during or after the casting and counting of votes (c) Period for filing: Within 10 days from proclamation of the results of the election (d) Procedure: I. For protests filed with the COMELEC (Rule 20 vis-à-vis Rules 10-19, COMELEC Rules of Procedure): (1) Protestant files a verified petition with the COMELEC within 10 days from proclamation and pays the required docket fees. Failure to pay the basic docket fee will result in the dismissal of the protest. (Gatchalian v. COMELEC) (2) The Clerk of Court of the COMELEC or the division concerned issues the corresponding summons to the protestee within 3 days from the filing of the petition. (3) Protestee must file an answer within 5 days from service of summons and a copy of the petition. The protestee may incorporate in his answer a counter-protest or counterclaim. (4) The COMELEC may not entertain a counter-protest filed beyond the reglementary period to file the same. (Kho v. Comelec) (5) Protestant has 5 days from receipt of the answer or answer with counterclaim or counter-protest to file his reply or answer to counter-protest or counterclaim, respectively. If no answer is filed to the protest or counter-protest, a general denial

is deemed to have been entered. (6) After the issues have been joined, the case shall be set for hearing and presentation and reception of evidence. (7) After the case has been submitted for decision, the COMELEC shall render its decision. If the case is being heard by a Division, the case shall be decided within 10 days. If it is being heard by the COMELEC en banc, it shall be decided within 30 days. (8) The decision of a division becomes final and executory after the lapse of 15 days following its promulgation. The aggrieved party may file a timely motion for reconsideration within 5 days from promulgation of the decision on the grounds that the evidence is insufficient to justify the decision; or that the said decision is contrary to law. For the COMELEC en banc, the decision becomes final and executory 30 days from its promulgation. I. For protests filed with the Regional Trial Courts (Rule 35, COMELEC Rules of Procedure): (1) Protestant files a verified petition with the RTC within 10 days from proclamation. (2) Protestee must file an answer within 5 days after receipt of notice of the filing of the petition and a copy of the petition. Should the protestee desire to impugn the votes received by the protestant in other precincts, he may file a verified counter-protest within the same period fixed for the filing of the answer. (3) Protestant has 5 days from receipt of the counter-protest to file his answer to such counter-protest. (4) Any other candidate for the same office may intervene in the case within 5 days from filing of the protest by filing a verified petition-in-intervention. The protestant or protestee shall answer the protest-in-intervention within 5 days after notice. (5) If no answer is filed to the protest, counter-protest or protest-in-intervention within the specified time limits, a general denial is deemed to have been entered. (6) After the issues have been joined, the case shall be set for hearing. Presentation and reception of evidence shall be completed within 30 days from the date of the commencement thereof. (7) The Court shall decide the election contest within 30 days from the date it is submitted for decision, but in every case within 6 months after its filing. Such decision shall declare who among the parties has been elected, or in a proper case, that none of them has been legally elected. (8) The decision becomes final 5 days after its promulgation. No motion for reconsideration shall be entertained. Should an aggrieved party wish to appeal the decision to the COMELEC, he may do so by filing a notice of appeal within 5 days from promulgation of the decision. (d) Effect of death of protestant: Does not extinguish an election protest. (De Castro v. Comelec) However, it is not the heirs of the deceased who shall be the successors-in-

interest to the suit, but the succeeding candidate-elect. (1) Quo warranto (a) Who may file: Any registered voter in the constituency (b) Grounds: Ineligibility or disloyalty to the Republic of the Philippines (c) Period for filing: Within 10 days from proclamation of the results of the election 6. Evidence on the election (1) Election returns: Properly used as evidence in an election contest when what is involved is the correctness of the number of votes of each candidate, and the ballots cannot be produced or are not available. (2) Ballots: When the election returns are not available. (3) Poll-books and tally sheets: May be used as evidence where by law, poll-books or tally sheets are required to be kept. (4) Election officials: May be called to testify in the absence of ballots, tally sheets or poll-books. (5) Voters: May testify where the illegality consists in the casting of votes by persons unqualified, unless it can be shown for whom they voted, it cannot be allowed to change the result. (6) Certificate of votes: The provisions of Sections 235 and 236 of the Omnibus Election Code notwithstanding, these shall be admissible in evidence to prove tampering, alteration, falsification or any anomaly committed in the election returns concerned, when duly authenticated by testimonial or documentary evidence presented to the board of election inspectors who issued the certificate. The failure to present any certificate of votes shall be a bar to the presentation of other evidence to impugn the authenticity of the election returns. VIII. ELECTION OFFENSES 1. Jurisdiction over election offenses: RTCs have exclusive original jurisdiction to try and decide any criminal actions or proceedings for violation of election laws. (Sec. 268, B.P. 881) 2. Prosecution of election offenses: The COMELEC has the exclusive power to investigate and prosecute cases involving violations of election laws. (Sec. 2 (6), Art. IX-C, 1987 Const) However, it may validly delegate the power to the Provincial Prosecutor or to the Ombudsman. In the event that the COMELEC fails to act on any complaint within 4 months from its filing, the complainant may file the complaint with the fiscal or the Department of Justice, if warranted. (Sec. 265, B.P. 881) 3. Preferential disposition of election offenses: The investigating officer shall resolve the case within 5 days from submission. The courts shall give preference to election cases over all other cases except petitions for writ of habeas corpus. 4. Election offenses

Registration (a) Failure of the Board of Election Inspectors to post the list of voters in each precinct. (Sec. 9, R.A. 7166); (b) Change or alteration or transfer of a voter's precinct assignment in the permanent list of voters without the express written consent of the voter (Sec. 4, R.A. 8189) Certificate of candidacy (a) Continued misrepresentation or holding out as a candidate of a disqualified candidate or one declared by final and executory judgment to be a nuisance candidate (Sec. 27f, R.A. 6646); (b) Knowingly inducing or abetting such misrepresentation of a disqualified or nuisance candidate (Sec. 27f, R.A. 6646); (c) Coercing, bribing, threatening, harassing, intimidating, terrorizing, or actually causing, inflicting or producing violence, injury, punishment, torture, damage, loss or disadvantage to discourage any other person or persons from filing a certificate of candidacy in order to eliminate all other potential candidates from running in a special election (Sec. 5, R.A. 8295); Election campaign (a) Appointment or use of special policemen, special agents or the like during the campaign period (Sec. 261m, B.P. 881) (b) Use of armored land, water or aircraft during the campaign period (Sec. 261r, B.P. 881) (c) Unlawful electioneering (Sec. 261k, B.P. 881) (d) Acting as bodyguards or security in the case of policemen and provincial guards during the campaign period (Sec. 261t, B.P. 881) (e) Removal, destruction, obliteration, or tampering of lawful election propaganda, or preventing the distribution thereof (Sec. 83, B.P. 881 vis-à-vis Sec. 262, B.P. 881) Voting (a) Vote-buying and vote-selling (Sec. 261a, B.P. 881) (b) Conspiracy to bribe voters (Sec. 261b, B.P. 881): A disputable presumption of a conspiracy to bribe voters is created when there is proof that at least 1 voter in different precincts representing at least 20% of the total precincts in any municipality, city or province has been offered, promised or given money, valuable consideration or other expenditure by a candidate's relatives, leaders and/or sympathizers for the purpose of promoting the election of such candidate. (Sec. 28, R.A. 6646) (c) Coercion of subordinates to vote for or against any candidate (Sec. 261d, B.P. 881) (d) Dismissal of employees, laborers, or tenants for refusing or failing to vote for any candidate (Sec. 261d(2), B.P. 881) (e) Being a flying voter (Sec. 261z (2), B.P. 881) Counting of votes (a) Tampering, increasing, decreasing votes, or refusal to correct tampered votes after proper verification and hearing by any member of the board of election inspectors (Sec. 27b, R.A.

6646) (b) Refusal to issue to duly accredited watchers the certificate of votes cast and the announcement of the election, by any member of the board of election inspectors (Sec. 27c, R.A. 6646)

addition to the prescribed penalty, such refusal constitutes a ground for cancellation or revocation of certificate of public convenience or franchise. (g) Discrimination in the sale of air time (Sec. 261dd (5), B.P. 881) In addition to the prescribed penalty, such refusal constitutes a ground for cancellation or revocation of the franchise.

Canvassing (a) Any chairperson of the board of canvassers who fails to give notice of meeting to other members of the board, candidate or political party as required (Sec. 27e, R.A. 6646)

Failure to register or vote: Under the current Constitution, failure to register or to vote is no longer an election offense.

Acts of government or public officers (a) Appointment of new employees, creation of new positions, promotion, or giving salary increases within the election period (Sec. 261g, B.P. 881) (b) Transfer of officers and employees in the civil service within the election period without the prior approval of the COMELEC (Sec. 261h, B.P. 881) (c) Intervening of public officers and employees in the civil service in any partisan political activity (Sec. 261i, B.P. 881) (d) Use of public funds for an election campaign (Sec. 261o, B.P. 881) (e) Illegal release of prisoners before and after election (Sec. 261n, B.P. 881) (f) Release, disbursement or expenditure of public funds during the prohibited period (Sec. 261v, B.P. 881) (g) Construction of public works, etc. during the prohibited period (Sec. 261w, B.P. 881) (h) Suspension of elective local officials during the election period without prior approval of the COMELEC (Sec. 261x, B.P. 881) Coercion, intimidation, violence (a) Coercion of election officials and employees (b) Threats, intimidation, terrorism, use of fraudulent devices or other forms of coercion (Sec. 261e, B.P. 881) (c) Use of undue influence (Sec. 261j, B.P. 881) (d) Carrying deadly weapons within the prohibited area (Sec. 261p, B.P. 881) (e) Carrying firearms outside residence or place of business (Sec. 261q, B.P. 881) (f) Organization or maintenance of reaction forces, strike forces, or similar forces during the election period (Sec. 261u, B.P. 881) Other prohibitions (a) Unauthorized printing of official ballots and election returns with printing establishments that are not under contract with the COMELEC (Sec. 27a, R.A. 6646) (b) Wagering upon the results of elections (Sec. 261c, B.P. 881) (c) Sale, etc. of intoxicating liquor on the day fixed by law for the registration of voters in the polling place, or the day before the election or on election day (Sec. 261dd (1), B.P. 881) (d) Opening booths or stalls within 30 meters of any polling place (Sec, 261dd (2), B.P. 881) (e) Holding fairs, cockfights, etc. on election day (Sec. 261dd (3), B.P. 881) (f) Refusal to carry election mail during the election period (Sec. 261dd (4), B.P. 881). In

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Good faith is not a defense, as election offenses are generally mala prohibita.

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Penalties

For individuals

(a) Imprisonment of not less than 1 year but not more than 6 years, without probation (Sec. 264, B.P. 881) (b) Disqualification to hold public office (c) Deprivation of the right of suffrage

For a Foreigner

(a) Imprisonment of not less than 1 year but not more than 6 years (without probation); (b) Deportation after service of sentence

For a Political Party

(a) Payment of a fine not less than P10,000 after a criminal conviction

Persons Required by Law to Keep Prisoners in their Custody: For prisoners illegally released

from any penitentiary or jail during the prohibited period, where such prisoners commit any act of intimidation, terrorism or interference in the election, prison mayor in its maximum period. (Sec. 264, B.P. 881) 5. Arrests in connection with election campaign: Only upon a warrant of arrest issued by a competent judge after all the requirements of the Constitution have been strictly complied with. 6. Prescription: 5 years from the date of their commission. If the discovery of the offense be made in an election contest proceeding, the period of prescription shall commence on the date on which the judgment in such proceedings becomes final and executory. (Sec. 267, B.P. 881)