An Overview of the Phil Electoral System-Quilala

1

PRELIMINARIES ELECTION is the embodiment of the popular will, the expression of the sovereign power of the people. In common parlance, an election is the act of casting and receiving the ballots, counting them, and making the return. (Hontiveros v. Altavas, G.R. No. L-13959, 05 December 1918) An election involves every element necessary to the complete ascertainment of the expression of the popular will, embracing the entire range, from the deposit of the ballot by the elector up to the final ascertainment and certification of the result. An election by the people means and includes the perfect ascertainment of such result. (Moreno, F., Philippine Law Dictionary, 1972 ed.) SUFFRAGE is the right to vote in election of officers chosen by people and in the determination of questions submitted to people. (Nachura, A., Outline Reviewer in Political Law, 2009 ed.) Suffrage, or sometimes called political franchise, is the civil right to vote, or the exercise of that right. Suffrage may apply to elections, but also extends to initiatives and referenda. Suffrage is used to describe not only the legal right to vote, but also to the practical question of the opportunity to vote, which is sometimes denied those who have a legal right. In the Philippines, suffrage may be exercised by the following: Section 1. Suffrage may be exercised by all citizens of the Philippines, not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote, for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. (Article V, 1987 Constitution) 1

2

AN OVERVIEW OF THE PHILIPPINE ELECTORAL SYSTEM

Kinds of Election: 1. Regular election – refers to an election participated in by those who possess the right of suffrage and not disqualified by law and who are registered voters. 2. Special election – when there is a failure of election on the scheduled date of regular election in a particular place or which is conducted to fill up certain vacancies, as provided by law. a. Plebiscite — electoral process by which an initiative on the Constitution is approved or rejected by the people. b. Initiative — power of the people to propose amendments to the Constitution or to propose and enact legislations through election called for the purpose. (Sec. 2 [a], R.A. 6735) Classes of Initiative: 1.

On the Constitution

2.

On Statutes

3.

On Local Legislation

c. Referendum — power of the electorate to approve or reject a piece of legislation through an election called for the purpose. (Sec. 2 [c], R.A. 6735) Classes of Referendum: 1.

On Statutes

2.

On Local Laws

d. Recall – the termination of official relationship of a local elective public official for loss of confidence by the people prior to the end of his term of office. (Sec. 69, R.A. 7160 LGC) 3. Manual Election – Manual/mechanical casting/voting, counting, and canvassing stages which involves the following: a. stage;

Use of paper “write-in” ballots during casting

b. The “direct reading and manual tallying of votes” in multiple copies of election returns (ER); and

PRELIMINARIES

3

c. The direct reading of election returns and writing of results in multiple copies of Statement of Votes (SOV); and d. The manual addition of results in SOVs and the Certificates of Canvass (COCs). 4. Automated Election System (AES) — a system using appropriate technology which has been demonstrated in the voting, counting, consolidating, canvassing, and transmission of election result, and other electoral process. (Sec. 2, R.A. 9369) ELECTION and CAMPAIGN PERIOD Under the 1987 Constitution: “Section 9. Unless otherwise fixed by the Commission in special cases, the election period shall commence ninety (90) days before the day of election and shall end thirty (30) days thereafter.” (Article IXC, 1987 Constitution) Under R.A. 7166: “Section 5. Election and Campaign Period. — Unless otherwise fixed by the Commission, the election period for the xxx regular elections shall commence ninety (90) days before the day of the election and shall end thirty (30) days thereafter. The campaign periods are hereby fixed as follows: (a) For President, Vice-President and Senators, ninety (90) days before the day of the election; and (b) For Members of the House of Representatives and elective provincial, city and municipal officials, forty-five (45) days before the day of the election. However, in the preparation of the election calendar, the Commission may exclude the day before the day of the election itself, Maundy Thursday and Good Friday. Any election campaign or partisan political activity for or against any candidate outside of the campaign period herein provided is prohibited and shall be considered as an election offense punishable under Section 263 and 264 of the Omnibus Election Code.” (R.A. 7166)

AN OVERVIEW OF THE PHILIPPINE ELECTORAL SYSTEM

by ATTY. RYAN REY SEVERINO QUILALA

Published & Distributed by

856 Nicanor Reyes, Sr. St. Tel. Nos. 736-05-67 • 735-13-64 1977 C.M. Recto Avenue Tel. Nos. 735-55-27 • 735-55-34 Manila, Philippines www.rexpublishing.com.ph i

Philippine Copyright 2011 by

RYAN REY SEVERINO QUILALA

ISBN 978-971-23-6012-1 No portion of this book may be copied or reproduced in books, pamphlets, outlines or notes, whether printed, mimeographed, typewritten, copied in different electronic devices or in any other form, for distribution or sale, without the written permission of the authorized representative of the publisher except brief passages in books, articles, reviews, legal papers, and judicial or other official proceedings with proper citation. Any copy of this book without the corresponding number and the authorized signature of the author on this page either proceeds from an illegitimate source or is in possession of one who has no authority to dispose of the same. ALL RIGHTS RESERVED

No. ____________

Printed by

Typography & Creative Lithography 84 P. Florentino St., Quezon City Tel. No. 857-77-77 ii

PREFACE The study of Election Laws is very complicated because, aside from the fact that the Omnibus Election Code has undergone several amendments and revisions since 1985, the sequence of provisions is not in accordance with the flow of election system in our country. Several provisions are somehow misplaced. Provisions on Postponement and Failure of elections are found in Sections 5 and 6 when they should be in the chapter on casting stage. Disqualifications can be found in Section 12 and then again in Section 68. Chapter IX thereof discussed rules on candidacy while the definition of a candidate can only be found in the next chapter. The Code, likewise, discussed the rules on campaign before rules on registration of voters when it should be the other way around. Thus, studying election laws via the codal provisions alone can be a disaster. My “election law life” started in 1992 when I wrote the names of Jovito Salonga and Aquilino Pimentel, Jr. in my ballot. The next elections in 1995, I was a watcher and, afterwards, a youth advocate for “No to Dagdag-Bawas.” In 1998, while being a youth leader for Lakas ng Kabataan kay De Venecia (LAKAD), as a law student, I was asked to draft the petition for the accreditation of the Philippine People’s Parliament (PPP-Youth) and was eventually chosen as the second nominee thereof in the first ever party-list election in the country. In the 2001 elections, I was assigned as assisting counsel for Mayor Benhur Abalos by my former employer Lim and Ocampo Law Offices. In 2002, Dean Abraham Espejo gave me my first ever teaching load and the subject given to me was, surprisingly, election laws. It was difficult to teach the said subject first because most books at that time were not updated. Thus, I attended several seminars on election laws to keep me abreast in the said field. From the lectures, I made my own notes for the benefit of my students and bar examinees. By 2004, I have already finished an outline reviewer in election laws based on the sequence of events in our electoral iii

system including provision of the 1987 Constitution, the Local Government Code, and other special election laws. I also made my own “flowchart” (attached as Annex “A” hereof) of the whole system in order to show my students an “overview” of the subject. In 2005, Jurists Bar Review accorded me with the opportunity to lecture election laws in the regular review. Conversely, when R.A. 9369 was enacted in 2007, I never had the chance to update my outline reviewer because I got married on the same year and had enjoyed fatherhood in the succeeding years. I had no worries in putting the updates in abeyance because the poll automation provisions of R.A. 9369 were not implemented in the 2007 elections. Seeing that the Automated Election System (AES) will be fully implemented in the 2010 Elections, I’ve finally made the updated version of my outline by including the AES provisions of R.A. 9369, several COMELEC Resolutions in connection with the poll automation, and the latest jurisprudence on election laws. Thereafter, I was invited to be a lecturer on the nuances of R.A. 9369 by the University of Batangas and University of the East Law Center, Inc. (UELCI) in their Mandatory Continuing Legal Education (MCLE) seminars respectively. I also became one of the retained counsel of the Partido Demokratiko Pilipino Laban ng Bayan (PDP Laban) for the 2010 National Elections. With these humble achievements, I thought my “election law life” was already complete – I was a registered voter; I studied the law; I became a watcher; I have already filed my own certificate of candidacy; I taught the law; I lectured the law to bar reviewees and lawyers; I have appeared in local and national canvassing boards; I have experienced first-hand the “dagdagbawas” orchestrated in Maguindanao in 2007; I am a member of a national political party; and I have my outline notes. The only thing left to do is to author a book on election laws. It was, however, only during the wake of the late Atty. Francisco J. Sababan in February 2011 when a former student of mine finally made me realize the importance of having my work published. Many ersatz election lawyers claim that the passage of R.A. 9369 would make the manual elections a thing of the past. As they obviously have not read or understood the full text of the law, R.A. 9369 itself acknowledges the possible switch from automated elections to manual polls by amending provisions on iv

manual counting (Sections 31 and 35), manual preparation and transmission of election returns (Sections 32 and 33), manual canvassing thereof (Section37 and 39) and manual preparation and distribution of the certificate of canvass (Section 40). In fact, unknown to many, R.A. 9369 has already been used in the 2007 National and Local “manual” Elections. Thus, even with the full implementation of poll automation under R.A. 9369 in the 10 May 2010 National Elections, we reverted to manual election in the 25 October 2010 Barangay Elections under the same law (R.A. 9369). This book is presented in such a way that law students, bar reviewees, members of the bench and the bar would no longer have to cross-refer the law to the implementing rules to the applicable jurisprudence and to how a certain topic was asked in the bar examinations. No need to look at the footnotes, endnotes, bibliography or even annexes on whether the provision is applicable to manual or automated or both kinds of elections. This is an “all-in” easy reference book in election laws.

ATTY. RYAN REY S. QUILALA 2011 Edition

v

vi

ACKNOWLEDGMENT “There are three things a man must do before he dies: plant a tree, father a child, and write a book. In this picture, Jordan, you have done all three. It is your seed, your child, your story.” (“The Gift”: An except from Rick Skwiot’s Mexican Novel “Sleeping with Pancho Villa”) In my life I have planted so many trees. I have already fathered not only a child but two gorgeous daughters (Ryanne and Raya). And now I’ve written a book for them to always remember their father by. I dedicate this work to my wife Ria, my father Judge Reinato G. Quilala, my mother Lirio De Vera Severino, and to all my siblings: Sunny, Mae, Rainier and Roemil, and their respective families, my in-laws, and to my Lola Rosing who died while I was reviewing for the bar exams. Special thanks to COMELEC Chairman Sixto Brillantes who was my professor in Election Laws; the late Assemblyman Antonio Tupas and Prof. Edwin Rey Sandoval for being my mentors in Political Laws; to Dean Abraham Espejo for giving me the break to teach election laws in the College of Law despite not being a topnotcher nor an honor graduate; Dean Williard Riano for the trust and confidence; DOJ Sec. Leila De Lima for the casting and canvassing training; Prof. Manuel Riguera of Jurists Bar Review for entrusting the regular bar review lectures on election laws since 2005; Legal Advantage through Atty. Reynold Munsayac; Luminous Bar Review and University of Batangas through Atty. Erickson Balmes; University of the East Law Center, Inc. (UELCI) for allowing me to conduct lectures in election laws, among others, in their Mandatory Continuing Legal Education (MCLE) seminars; my kumpares Attys. Erickson Alcovendaz, Ferdinand Tan, Gemylito Festin and Larry Ignacio for their sincere motivations to write this book; the late Atty. Francis Sababan, without whom the consummation of this book would not be possible; Loise Mae for assisting in the proofreading; Rainier Paul vii

for the cover design; Christian Robert for the manual research; Evarra; and the PDP Laban through Atty. Koko Pimentel and Joey De Venecia. I am especially indebted to Atty. Maria Theresa Cabayan, one of my brightest students in Election Laws. The publishing of this book was made possible by her assistance. “Don’t Stop Believing!”…Live Jesus in our Hearts…Forever!

viii

Partido Demokratiko Pilipino

Lakas ng Bayan (PDP LABAN)

FOREWORD It gives me a great feeling of pride and satisfaction to have been asked by my inaanak Atty. Ryan Rey S. Quilala to write the foreword to his first ever book on election law. Atty. Quilala has been my lawyer in many electoral battles. He has helped me too in many of my father’s senatorial canvassing. In short, Atty. Quilala knows the subject that he has written about. The promises of automated elections have not all been achieved. Our people must be informed about these shortcomings and the reasons why reality has been much separated from what is written in the law. Electoral fraud can again rear its ugly head anytime, even under computerized elections. So, the actual lesson we all need to learn from our electoral experiences is that, if we value our democracy, then we all should be vigilant against the various forms and manifestations of electoral fraud. And, I should add, if we have identified the cheaters, then we must teach them a lesson in subsequent elections by outrightly rejecting them. Atty. Quilala has presented the relatively complicated subject of election law in a much simplified and organized way. This manner of presentation will surely help law students and election law practitioners understand and practice election law better and more proficiently. Better understanding of the law which leads to better practice of election law will lead to better decisions in election cases and ultimately (or hopefully) to better leaders elected through the ballot box.

ix

I hope that the success of this book will inspire Atty. Ryan Quilala to write more books on election law and even on other topics. Congratulations Ryan. Good work. Atty. Aquilino L. Pimentel, III President Partido Demokratiko Pilipino Laban ng Bayan (PDP Laban)

x

ABOUT THE AUTHOR ATTY. RYAN REY SEVERINO QUILALA is the youngest child of Judge Reinato G. Quilala of San Juan, Ilocos Sur, and Lirio De Vera Severino of Urbiztondo, Pangasinan and Silay, Negros Occidental. He obtained his Bachelor of Arts degree from De La Salle University as a Dean’s Lister and his Bachelor of Laws degree from the San Sebastian College-Recoletos de Manila (SSC-R). He was admitted to the Philippine Bar in 2001. He has been a member of the law faculty of SSC-R since 2002. He mainly teaches Election Laws and has handled Constitutional Law I, Local Government, Administrative Laws, Sales and Special Contracts, Legal Forms and Writing, Practice Court, among others. In 2003, he was appointed as the College Secretary and eventually as the Associate Dean for Student Affairs in the same College in 2005. He was the founding Bar Review Director of the Recoletos Review Center-Manila in 2004 and a Special Lecturer in Election Laws thereat and organized the Centralized Bar Operations (Bar Ops) of the SSC-R. He is also a regular Bar Review Lecturer in Election Laws, Local Government, Administrative Laws, and International Laws for Jurists Bar Review and Luminous Bar Review, and as Pre-Week Lecturer in Election Laws for Legal Advantage in 2008. He is, in addition, a Mandatory Continuing Legal Education (MCLE) Lecturer in Election Laws, Updates in Political Laws and Alternative Dispute Resolution (ADR) for the University of Batangas and the University of the East Law Center, Inc. (UELCI). His election experience started as a youth advocate of “No to Dagdag Bawas” for Senator Aquilino “Nene” Pimentel, Jr. in 1995 and as a youth leader for Lakas ng Kabataan para kay De Venecia (LAKAD) in the 1998 Presidential Elections. From then on, he has been a casting/canvassing counsel for several local and national candidates. In 2007, he was one of the counsel for Atty. Aquilino “Koko” Pimentel III’s senatorial bid. In the 2010

xi

National Elections, he became the retained counsel of Partido Demokratiko Pilipinas Laban ng Bayan (PDP LABAN) for now Vice President Jejomar C. Binay and Atty. Gwendolyn Pimentel (for Senator). He is currently the National Vice-Chairperson of the Committee on Legal Affairs and Arbitration of the PDP Laban and manages his own law firm in Makati City.

xii

CONTENTS Preliminaries ................................................................... Kinds of Election.............................................................. Election and Campaign Period .........................................

1 2 3

Chapter I The Commission on Elections (COMELEC) Composition, Qualification, Appointment and Terms of Office of the Commission on Elections .................. En Banc and Division Cases of the COMELEC ................. Powers and Functions of the COMELEC........................... Important Powers and Functions of the COMELEC .......... Bar Questions..................................................................

4 5 7 15 22

Chapter II Registration of Voters Ban ................................................................................ Qualifications of Voters .................................................... Disqualifications of Voters................................................ Double Registrants .......................................................... Illiterate and Disabled Voters ........................................... Election Registration Board ............................................. Deactivation, Reactivation and Cancellation of Registration .......................................................... Inclusion and Exclusion Proceedings ............................... Common Rules Governing Judicial Proceedings in the Matter of Inclusion, Exclusion, and Correction of Names of Voters ................................... Annulment of book of voters ............................................ Changes in the list/book of voters.................................... Who may vote in an election ............................................

25 26 27 28 29 30 31 34

36 37 38 39

Chapter III Absentee Voting Local Absentee Voting ...................................................... xiii

40

Disapproval of the application for local absentee voting ....................................................................... Overseas Absentee Voting (OAV) ....................................... Detainee Voting................................................................ Bar Questions..................................................................

41 41 44 44

Chapter IV Political Parties The Party-List System Act ................................................ Refusal and/or Cancellation of Registration of Political Parties under the Party-list System .......................... The eight point guidelines for screening Party-list participants according to the Ang Bagong Bayani OFW case ..................................................... “Window-dressing” of Party-list participant ...................... New Formula in the Allocation of Seats for Party-list Representatives ....................................

47 48

49 51 51

Chapter V Rules on Candidacy Deadline for filing Certificate of Candidacy (COC) ............. Contents of Certificate of Candidacy ................................ Prohibition against multiple candidacies .......................... Effect of Filing a Certificate of Candidacy for Public Officials .................................................... Disqualification to be a candidate .................................... Duty to receive certificates of candidacy ........................... Where to file certificate of candidacy ................................ Qualifications and Terms of Office of Candidates ............. Disqualification of Candidates.......................................... Falsity of material representation in certificate of candidacy ............................................................. Effects of disqualification case ......................................... Substitution .................................................................... Substitution of candidates in the 2010 Barangay elections ................................................................... Independent candidate as defined in the 2010 National and Local elections ..................................... Effect of substitution of candidates after official ballots have been printed in AES .............................. Lone Candidate Law ........................................................ Constitutional Prohibitions .............................................. xiv

54 56 59 60 62 66 67 68 77 80 82 84 86 87 87 88 89

Authorized Expenses of Candidates and Political Parties ........................................................ Statement of Contributions and Expenditures: Effect of Failure to File Statement............................. Bar Questions..................................................................

90 90 91

Chapter VI Campaign and Election Propaganda Nomination of candidates ................................................ Campaign period ............................................................. Prohibited Campaigning................................................... Prohibited forms of election propaganda in the 2010 Elections ......................................................... Election Surveys .............................................................. Exit Polls ......................................................................... Rallies ......................................................................... Prohibited donations ........................................................ Prohibited contributions .................................................. Foreign Aid ...................................................................... Prohibited Fund Raising .................................................. Limitation on expenses .................................................... Statement of contributions and expenditures ................... Filing of Statement of Contributions and Expenditures............................................................ Penalties for failure to file statement ................................ Effect of Withdrawal of Candidacy .................................... Bar Questions..................................................................

107 108 108 111 120 121 121 122 123 124 124 126 126 127 127 127 128

Chapter VII Board of Election Inspectors Powers and Functions of the BEI .....................................

133

Chapter VIII Official Watchers Number of official watchers allowed ................................. Other watchers ................................................................ Qualifications of watchers ................................................ Rights and duties of watchers .......................................... Challenge against illegal voters ........................................ Challenge based on certain illegal acts ............................. xv

136 136 136 137 139 140

Chapter IX Precincts and Polling Places Precincts ......................................................................... Arrangement of election precincts .................................... Polling Place .................................................................... Designation and requirements of polling places................ Buildings that shall not be used as polling places ............ Clustering of Precincts .....................................................

141 142 142 143 143 144

Chapter X Casting of Votes History of Republic Act No. 9369...................................... Salient Features of R.A. 9369........................................... Voting Hours.................................................................... Postponement of Election ................................................. Failure of Election............................................................

146 150 158 161 162

Chapter XI Counting of Votes Preliminaries to counting of votes .................................... Special Problems in MANUAL Elections ............................ Rules of appreciation of ballots ........................................ Correction of Returns ...................................................... Certificate of Votes (COV) ................................................. Election Returns .............................................................. Bar Questions..................................................................

167 172 175 181 183 184 188

Chapter XII Canvassing and Proclamation Canvassing Bodies ........................................................... Compositions of the BOC in the May 2010 Elections ........ Procedures in Manual Canvassing ................................... Consolidation and Canvassing System (CCS) Operators ................................................................. Powers and functions of the BOC in an AES .................... Watchers during Canvassing ............................................ Problem Areas in Manual Canvassing .............................. Persons not allowed inside the canvassing room .............. Reception and Custody Group (RCG) in AES .................... Duties and Responsibilities of the RCG ............................ xvi

190 197 199 210 211 211 213 218 219 220

Issues that may be raised during the consolidation/ canvass .................................................................... Rights of candidates ........................................................ In case of a Tie................................................................. Failure to assume Office .................................................. Bar Questions..................................................................

221 222 223 223 226

Chapter XIII Pre-Proclamation Controversy What are issues that may be raised ................................. Issues that may be raised in pre-proclamation controversy .............................................................. Rule on Statistical Improbability, “Lagumbay Doctrine” .................................................................. Jurisdiction over Pre-Proclamation Controversies ............ Procedure in case of Contested Returns ........................... Rights of Political Parties and Candidates Before the Board of Canvassers in Pre-Proclamation Cases . Bar Questions..................................................................

228 229 232 239 241 245 245

Chapter XVI Election Contest Two Types of Election Contest .......................................... Jurisdiction ..................................................................... Procedure ........................................................................ Contents of the Election Protest or Petition for Quo Warranto .......................................................... Prohibited Pleadings ........................................................ Bar Questions..................................................................

248 249 250 257 266 267

Chapter XV Election Offenses Jurisdiction to Try the Case ............................................. Jurisdiction to Prosecute ................................................. Prohibited Acts ................................................................ Persons Criminally Liable ................................................ Prescription of the Offense ............................................... Bar Questions..................................................................

271 272 272 307 307 307

Annex “A” – Electoral Process in the Philippines ............... Annex “B” – Post-Election Day Remedies ..........................

309 310

xvii