Election Reviewer - Chapters 1 -7[1]

Election Law Reviewer ELECTION: INTRODUCTION AND HISTORY Chapter 1

Suffrage – the right to vote in the election of officers chosen by the people and in determination of questions submitted to the people; it includes election, plebiscite, initiative and referendum. Nature of Suffrage: 1. Mere privilege- Not a natural right of the citizens but a mere privilege to be given or withheld by the lawmaking power subject to constitutional limitations. 2. Political Right- enabling citizens to participate in the process of government to assure that it derives its power from the consent of the governed. Voting – the act or exercise of one’s right to suffrage Election – the means by which the people choose their officials for a definite and fixed period and to whom they entrust for the time being the exercise of the powers of government. Kinds: 1. Regular – one provided by law for election of officers either nationwide or in certain subdivisions thereof, after expiration of the full term of the former members; participated in by those who possess the right of suffrage, are not otherwise disqualified by law, and who are registered voters.  The SK election is not a regular election because the latter is participated in by youth with ages ranging from 15-21 (now 15-18 per R.A. 9164), some of whom are not qualified voters to elect local or national elective officials (Paras v. COMELEC). 2. Special – one held to fill any vacancy in an office before the expiration of the full term for which the incumbent was elected.

1 Plebiscite – the electoral process by which an initiative on the Constitution is approved or rejected by the people; it also the means by which the voters in affected areas consent or object to the change in the form of local government. Initiative – the power of the people to propose amendments to the Constitution or to propose and enact legislations through an election called for the purpose. Referendum – the power of the electorate to approve or reject legislation through an election called for the purpose. Recall – a mode of removal of a local elective official by the people before the end of his term of office. Theory on Suffrage prevailing in the Philippines: Suffrage is both a right and a privilege. It is a right because it is the expression of the sovereign will of the people. It is a privilege because its exercise is granted not to everybody but to the persons or class of persons as are most likely to exercise it for the purpose of the public good. System of Election Adopted in the Philippines: Since 1901, the Australian system, first conceived by Francis Dutton, a member of the Legislature of South Australia. The distinguishing feature of the system is STRICT SECRECY IN BALLOTING. Election Period: Unless otherwise fixed by the Commission in special cases, the election period shall commence ninety days before the day of election and shall end thirty days thereafter (Sec. 9, Art. IX-C, 1987 Constitution). Campaign Period: 3. Presidential and Vice Presidential Election – 90 days; 4. Election of Members of Congress and Local Election – 45 days; and Barangay Election – 15 days 4. Special Election under Art. VIII, Sec. 5, Subsection (2) of the Constitution – 45 days.

Written and Edited by: APAYA, Edrian and DAVID, Jose Angelo. REFERENCES: Relevant laws, jurisprudence and San Beda Law BarOps Memory Aid. Please notify the author/s concerned for corrections, suggestions and comments.

Election Law Reviewer  The campaign periods shall not include the day before and the day of the election (Sec. 3, B.P. 881). History of Election 1. 1897 Biak na Bato Constitution No suffrage 2. 1899 Malolos Constitution No suffrage 3. 1935 Constitution -Suffrage is limited to male citizens, 21 years of age, and able to read and write. -Suffrage for women is subject to plebiscite of 300,000 women. 4. 1973 Constitution -suffrage is mandatory. Failure to register is an election offense. 5. 1987 Constitution

THE COMMISSION ON ELECTIONS Chapter 2

Jurisdiction General Rule: The COMELEC sitting en banc does NOT have the requisite authority to hear and decide election cases in the first instance. This power pertains to the divisions of the Commission. Any decision by the Commission en banc as regards election cases decided by it in the first instance is null and void (Abad v. COMELEC) Exceptions: 1. When what is involved in the case is purely administrative, and not quasi-judicial in nature; 2. When the required number of votes to reach a decision, resolution, order or ruling is not obtained in the division (Garvida v. Sales, Jr.) 3. Where the petitioner invoked the jurisdiction of the COMELEC en banc, participated in its proceedings and sought relief therefrom, in which instance he is estopped to subsequently question the jurisdiction of the COMELEC en banc (Ramirez v. COMELEC);

2 4. Petitions for the postponement, declaration of failure of election and the calling of special elections (Loong v. COMELEC); and 5. The COMELEC en banc has the power to prosecute election cases, and in the exercise of such prosecutory power, it conducts preliminary investigation, decides whether or not there exists a probable cause and files the corresponding information in court. (Faelnar v. People). Powers and Functions: 1. Enforcement and Administration of Election Laws and Regulations 2. Power to ensure free, honest, orderly credible and peaceful elections. 3. Rule Making Power 4. Quasi-Legislative Functions 5. Quasi-Judicial Power 6. Contempt and Subpoena 7. Auxiliary writs and processes 8. Specific Powers a. Power to declare failure of elections  Two conditions must concur before the COMELEC can act on a petition seeking to declare a failure of elections: i. No voting took place in the precinct or precincts on the date fixed by law, or even if there was voting, the election resulted in failure to elect; and ii. The votes not cast would have affected the result of the elections. (Dibratun v. Comelec) *The cause of such failure of election could only be any of the following: force majeure, violence, terrorism, fraud, or other analogous cases. b. Power to call for special elections  In fixing the date for special elections, the Comelec should see to it that: i. It should not be later than 30 days after the cessation of the cause of the postponement or suspension of the election or failure to elect; and

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Election Law Reviewer ii.

It should be reasonably close to the date of the election not held, suspended or which resulted in the failure to elect. (Pangandaman v. Comelec)

c. Power to postpone elections d. Power to correct manifest errors in election documents  With the introduction of the PCOS System pursuant to R.A. 9369, every copy should be as good and as clear as the first one. Hence, the problem of manifest errors might be a thing in the past. (R. Avila, Fundamentals of Election Law, p. 59 (2010)) e. Power to order recanvass of votes f. Power to annul or suspend proclamation of elected candidates g. Power to annul an illegal canvass h. Power to transfer polling places i. Power to Transfer Venue of Canvassing of Votes j. Power to order opening of ballot boxes k. Power to conduct initiative and plebiscite 9. Other Specific Powers a. Deputization of Peace Officers b. Investigatory and Prosecutorial Power c. Deputization of or Endorsement Prosecutors

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10. Power of exclusive control and supervision over the Automated Election System (Sec. 26, RA 8436)  Stand-by Power of COMELEC: If it shall no longer be reasonably possible to observe the periods and dates prescribed by law for certain pre-election acts, the Commission shall fix other periods and dates in order to ensure accomplishment of the activities so voters shall not be deprived of their suffrage (Sec. 28, R.A. 8436 & Sec. 29 of R.A. 6646, adopted pursuant to Sec. 9, Art. IX-C of the 1987 Constitution).

3  This stand-by power, however, does not apply to fixing the date of registration of votes because Sec. 8 of R.A. 8189, which provides for a continuing registration of voters, specifically states that: “No registration shall, however, be conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before a special election. Powers NOT Granted to the COMELEC: 1. No power to decide questions involving the right to vote 2. No power to include and exclude voters  Currently, jurisdiction to decide controversies on inclusion or exclusion of voters belongs to the Municipal Trial Court. History of COMELEC  COMELEC was organized under CA No. 607 enacted on August 22, 1940.  The power to enforce the election laws was originally vested in the president and exercised through the Department of Interior.  COMELEC was then transformed to a Constitutional Body by virtue of the 1940 amendments to the 1935 Constitution which took effect on December 2, 1940.  1973 Constitution broadened the powers of the COMELEC by making it the sole judge of all election contests relating to election returns, and qualifications of members of the national legislature and elective provincial and city officials.  The 1987 Constitution grants the COMELEC the exclusive original jurisdiction to enforce and administer all laws and regulations relative to the conduct of elections, plebiscites, initiative, referendum, and recalls, election contests involving regional, provincial and city elective officials . (Loong vs. COMELEC)  1935 Constitution Composition: Chairman and two Commissioners Term: 9 years  1973 Constitution

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Election Law Reviewer Composition: Chairman and Commissioners Term: 7 years without reappointment  1987 Constitution Composition: Chairman and Commissioners Term: 7 years without reappointment

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Case Digest: Power of COMELEC Election for the Office of the Representatives was held. Because of the alleged irregularity in the canvassing of votes, COMELEC issued a resolution to reopen the ballot boxes to obtain judicial remedies under section 163 of the Revised Election Code. WON the resolution is valid. The COMELEC has the power to investigate and act on the propriety or legality of the canvass of election returns made by the board of canvassers. Cauton vs. COMELEC) _ The Congress enacted R.A. 8436 for the Automation of Election System. The Automated Machines used during the election did not properly read the votes casted. COMELEC issued a minute resolution ordering a manual count. WON the resolution is valid. To continue with the automated count would result in a grossly erroneous count. The resolution merely reinforces the collective efforts to endow COMELEC with enough power to hold free, honest, orderly, and credible elections. (Loong vs. COMELEC) Judicial Recount Election was held; one of the candidates filed a petition to annul the canvass and proclamation due to alleged irregularity in the canvassing. The COMELEC issued a resolution annulling the canvass and proclamation. The requisites for judicial recount 1. Appearing to the Board of Canvassers that discrepancy exists. 2. Discrepancy is between the copy submitted to the Board and another authentic copy thereof.

4 3. Authentic copy must also be submitted to the Board. (Purisima vs. Salanga) Exercise of discretion A coalition of several political parties was awarded the right to have the minority representation in the Board of Election Inspectors. Upon the termination of the coalition, the COMELEC granted the said right to another political party. WON the modification is valid. The COMELEC shall have the discretion to choose the minority inspector. The modification by the Commission of its ruling awarding the minority inspector to another party is a legal exercise of the discretion vested. (Sumulong vs. COMELEC) Period in rendering decision An election case was filed before the COMELEC en banc. En banc failed to render its decision within 90 days from the date the case was submitted for decision as mandated by law. WON the decision is still valid. The COMELEC has numerous cases before it, Considering the manpower and logistic limitations, it is sensible to treat the procedural requirements on deadlines realistically. (Alvarez vs. COMELEC)

VOTERS AND VOTER REGISTRATION Chapters 3 and 4

* Sections 113 to 148 of the Omnibus Election Code have been repealed or modified to the extent that they are inconsistent with the provisions of R.A. 8189 or the Voter’s Registration Act of 1996. Registration – refers to the act of accomplishing and filing of a sworn application for the 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 (R.A. 8189, Sec 3 (a)). Registration Record – an application for registration duly approved by the Election Registration Board (R.A 8189, Sec 3 (b)).

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Election Law Reviewer  All registration records in a precinct are compiled in a Book of Voters, which is generally used by the Board of Election Inspectors for reference in cases of conflicts and inadequacies in the posted list of voters. List of Voters – refers to an enumeration of names of registered voters in a precinct duly certified by the Election Registration Board for use in the Election Qualifications for Suffrage: (Sec. 1, Art. V, Constitution) 1. Filipino citizen; 2. At least 18 years of age; 3. Resident of the Philippines for at least one year; 4. Resident of the place where he proposes to vote for at least 6 months; and 5. Not otherwise disqualified by law.  It is incumbent upon one who claims Philippine citizenship to prove to the satisfaction of the court that he is really a Filipino. No presumption can be indulged in favor of the claimant of Philippine citizenship, and any doubt regarding citizenship must be resolved in favor of the state (Go v. Ramos)

5  Any person who transfers residence to another city, municipality or country solely by reason of his occupation; profession; employment in private or public service; educational activities; work in military or naval reservations; service in the army, navy or air force; the constabulary or national police force; or confinement or detention in government institutions in accordance with law, shall be deemed not to have lost his original residence (Sec. 117, OEC). Disqualifications: (Sec. 118, OEC) 1. Person convicted by final judgment to suffer imprisonment for not less than 1 year, unless pardoned or granted amnesty; but right is reacquired upon expiration of 5 years after service of sentence; 2. Person adjudged by final judgment as having committed any crime involving disloyalty to government or any crime against national security; but right is reacquired upon expiration of 5 years after service of sentence; and 3. Insane or incompetent persons as declared by competent authority. Registration Voters

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 In election cases, the Court treats domicile and residence as synonymous terms. Both import not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. Domicile denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return (Pundaodaya v Comelec)

In order that a qualified elector may vote in any election, plebiscite or referendum, he must be registered in the permanent list of voters for the city or municipality in which he resides (Sec. 115, OEC).

 No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage.

 System of Continuing Registration – The personal filing of application of registration of voters shall be conducted daily in the office of the Election Officer during regular office hours. No registration shall, however, be conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before a special election (Sec. 8, R.A. 8189).

 There exists no presumption that a person is entitled to vote and that the burden is in the voter to prove that he has the qualifications and none of the disqualifications prescribed by law (U.S. v. Tria)

 Registration does not confer the right to vote; it is but a condition precedent to the exercise of the right. Registration is a regulation, not a qualification (Yra v. Abano)

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Election Law Reviewer Congress itself has determined that the period of 120 days before a regular election and 90 days before a special election is enough time for the COMELEC to make ALL the necessary preparations with respect to the coming elections including: i. Completion of project precincts, which is necessary for the proper allocation of official ballots, election returns and other election forms and paraphernalia; ii. Constitution of the Board of Election Inspectors, including the determination of the precincts to which they shall be assigned; iii. Finalizing the Computerized Voters List; iv. Supervision of the campaign period; and v. Preparation, bidding, printing and distribution of Voter’s Information Sheet. Such determination of Congress is well within the ambit of its legislative power, which this Court is bound to respect. (Kabataan Partylist Representative Raymond Palatino v. Commission on Elections)  Disqualification – The same grounds for the disqualifications for suffrage.  Illiterate or Disabled Voters – may register with the assistance of the Election Officer or any member of an accredited citizen’s arms; application for registration may be prepared by any relative within the fourth civil degree of consanguinity or affinity or by the Election Officer or any member of an accredited citizen’s arms using the data supplied by the applicant (Sec. 14, R.A. 8189). An ILLITERATE OR DISABLED PERSON refers to one who cannot by himself prepare an application for registration because of his physical disability and/or inability to read and write (Sec. 3, R.A. 8189) No voter shall be allowed to vote as illiterate or person with disability / disabled, unless such fact is indicated in the EDCL or the Voter’s

6 Registration Record (Sec. 30, Comelec Instructions to the BEI, December 29, 2009)  Election Registration Board – There shall be in each city and municipality as many Election Registration Boards as there are election officers therein; shall be composed of the Election Officer as chairman and as members, the public school official most senior in rank and the local civil registrar, or in his absence, the city or municipal treasurer. No member of the Board shall be related to each other or to any incumbent city or municipal elective official within the fourth civil degree of consanguinity or affinity (Sec. 15, R.A. 8189). .  Challenges to Right to Register – Any voter, candidate or representative of a registered political party may challenge in writing any application for registration, stating the grounds therefor. The challenge shall be under oath and be attached to the application, together with the proof of notice of hearing to the challenger and the applicant. Oppositions to contest a registrant’s application for inclusion in the voter’s list must, in all cases, be filed not later than the second Monday of the month in which the same is scheduled to be heard or processed by the Election Registration Board. The hearing on the challenge shall be heard on the third Monday of the month and the decision shall be rendered before the end of the month (Sec. 18, R.A. 8189).  Deactivation of Registration – The board shall deactivate the registration and remove the registration records of the following persons from the corresponding precinct book of voters and place the same, properly marked and dated in indelible ink, in the inactive file after entering the cause or causes of deactivation: a. Any person who has been sentenced by final judgment to suffer imprisonment for not less than one (1) year, such disability not having been removed by plenary pardon or amnesty: Provided, however, That any person disqualified to vote under this paragraph shall automatically reacquire the

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Election Law Reviewer

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right to vote upon expiration of five (5) years after service of sentence as certified by the clerks of courts of the Municipal/ Municipal Circuit/ Metropolitan/ Regional Trial Courts and the Sandiganbayan; Any person who has been adjudged by final judgment by a competent court or tribunal of having caused/committed any crime involving disloyalty to the duly constituted government such as rebellion, sedition, violation of the anti-subversion and firearms laws, or any crime against national security, unless restored to his full civil and political rights in accordance with law; Provided, That he shall regain his right to vote automatically upon expiration of five (5) years after service of sentence; Any person declared by competent authority to be insane or incompetent unless such disqualification has been subsequently removed by a declaration of a proper authority that such person is no longer insane or incompetent; Any person who did not vote in the two successive preceding regular elections as shown by their voting records. For this purpose, regular elections do not include the Sangguniang Kabataan (SK) elections; Any person whose registration has been ordered excluded by the Court; and Any person who has lost his Filipino citizenship (Sec. 27, R.A. 8189).

 Reactivation of Registration – Any voter whose registration has been deactivated pursuant to the preceding Section may file with the Election Officer a sworn application for reactivation of his registration in the form of an affidavit stating that the grounds for the deactivation no longer exist any time but not later than one hundred twenty (120) days before a regular election and ninety (90) days before a special election. The Election Officer shall submit said application to the Election Registration Board for appropriate action (Sec. 28, R.A. 8189).

7  Preparation and Posting of the Certified List of Voters – The Board shall prepare and post certified list of voters ninety (90) days before a regular election and sixty (60) days before a special election and furnish copies thereof to the provincial, regional and national central files. Copies of the certified list, along with a certified list of deactivated voters categorized by precinct per barangay, within the same period shall likewise be posted in the office of the Election Officer and in the bulletin board of each city/municipal hall. Upon payment of the fees as fixed by the Commission, the candidates and heads of registered political parties shall also be furnished copies thereof (Sec. 30, R.A. 8189). Inclusion and Exclusion Proceedings: COMELEC has no jurisdiction to resolve the issue regarding the right to vote, the same being cognizable by the courts in the proceedings for the exclusion or inclusion of voters (Canicosa v. COMELEC).  Common Rules Governing Judicial Proceedings in the Matter of Inclusion, Exclusion and Correction of Names of Voters (Sec. 32, R.A. 8189): a. Petition for inclusion, exclusion or correction of names of voters shall be filed during office hours; b. Notice of the place, date and time of the hearing of the petition shall be served upon the members of the Board and the challenged voter upon filing of the petition; c. A petition shall refer only to one (1) precinct and shall implead the Board as respondents; d. No costs shall be assessed against any party in these proceedings. However, if the court should find that the application has been filed solely to harass the adverse party and cause him to incur expenses, it shall order the culpable party to pay the costs and incidental expenses; e. Any voter, candidate or political party who may be affected by the proceedings may intervene and present his evidence; f. The decision shall be based on the evidence presented and in no case rendered upon a

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Election Law Reviewer stipulation of facts. If the question is whether or not the voter is real or fictitious, his nonappearance on the day set for hearing shall be prima facie evidence that the challenged voter is fictitious; and g. The petition shall be heard and decided within ten (10) days from the date of its filing. Cases appealed to the Regional Trial Court shall be decided within ten (10) days from receipt of the appeal. In all cases, the court shall decide these petitions not later than fifteen (15) days before the election and the decision shall become final and executory.  Jurisdiction in Inclusion and Exclusion Cases – The Municipal and Metropolitan Trial Courts shall have ORIGINAL AND EXCLUSIVE jurisdiction over all cases of inclusion and exclusion of voters in their respective cities or municipalities. Decisions of the Municipal or Metropolitan Trial Courts MAY BE APPEALED by the aggrieved party to the Regional Trial Court within five (5) days from receipt of notice thereof. Otherwise, said decision shall become final and executory. The regional trial court shall decide the appeal within ten (10) days from the time it is received and the decision shall immediately become final and executory. No motion for reconsideration shall be entertained (Sec. 33, R.A. 8189). It is not within the competence of the trial court, in exclusion proceedings, to declare the challenged voter as a resident of another municipality. The jurisdiction of the trial court is limited only to determining the right of the voter to remain in the list of voters or to declare that the challenged voter is not qualified to vote in the precinct in which he is registered, specifying the ground for the voter’s disqualification. (Domino v Comelec)  Petition for Inclusion – Any person whose application for registration has been disapproved by the Board or whose name has been stricken out from the list may file with the court a petition to include his name in the permanent list of voters in his precinct at any time except one

8 hundred five (105) days prior to a regular election or seventy-five (75) days prior to a special election. It shall be supported by a certificate of disapproval of his application and proof of service of notice of his petition upon the Board. The petition shall be decided within fifteen (15) days after its filing (Sec. 34, R.A. 8189).  Petition for Exclusion: Any registered voter, representative of a political party or the Election Officer, may file with the court a sworn petition for the exclusion of a voter from the permanent list of voters giving the name, address and the precinct of the challenged voter at any time except one hundred (100) days prior to a regular election or sixty-five (65) days before a special election. The petition shall be accompanied by proof of notice to the Board and to the challenged voter and shall be decided within ten (10) days from its filing (Sec. 35, R.A. 8189). Annulment of Book of Voters: The Commission shall, upon verified petition of any voter or election officer or duly registered political party, and after notice and hearing, annul any book of voters that is not prepared in accordance with the provisions of this Act or was prepared through fraud, bribery, forgery, impersonation, intimidation, force or any similar irregularity, or which contains data that are statistically improbable. No order, ruling or decision annulling a book of voters shall be executed within ninety (90) days before an election (Sec. 39, R.A. 8189).  The annulment of the list of voters shall not constitute a ground for a pre-proclamation contest (Ututalum v. COMELEC) . Overseas Absentee Voting Act (R.A. 9189) Absentee voting- the process by which ratified citizen of the Philippines abroad exercises their right to vote. (Sec. 3) Overseas Absentee Voter" refers to a citizen of the Philippines who is qualified to register and vote under this Act, not otherwise disqualified by

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Election Law Reviewer law, who is abroad on the day of elections. (Sec. 3) Coverage: All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least 18 years of age, may vote for President, VicePresident, Senators, and Party-list Representatives. Disqualifications: (Sec. 5) 1. Those who have lost their Filipino citizenship in accordance with Philippine laws; 2. Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country; 3. Those who have committed and are convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not less than one (1) year, including those who have committed and been found guilty of Disloyalty as defined under Article 137 of the Revised Penal Code, such disability not having been removed by plenary pardon or amnesty; Provided, however, That any person disqualified to vote under this subsection shall automatically acquire the right to vote upon expiration of five (5) years after service of sentence; Provided, further, That the Commission may take cognizance of final judgments issued by foreign courts or tribunals only on the basis of reciprocity and subject to the formalities and processes prescribed by the Rules of Court on execution of judgments; 4. An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return

9 shall be the cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia. 5. Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority in the Philippines or abroad, as verified by the Philippine embassies, consulates or Foreign Service establishments concerned, unless such competent authority subsequently certifies that such person is no longer insane or incompetent. Personal Overseas Absentee Registration. – Registration as an overseas absentee voter shall be done in person. (Sec. 6) The embassies, consulates and other foreign service establishments shall transmit within (5) days from receipt the accomplished registration forms to the Commission, after which the Commission shall coordinate with the Election Officer of the city or municipality of the applicant’s stated residence for verification, hearing and annotation in the permanent list of voters. (Sec. 6)  The overseas absentee voter shall personally accomplish his/her ballot at the embassy, consulate or other foreign service establishment that has jurisdiction over the country where he/she temporarily resides or at any polling place designated and accredited by the Commission. (Sec. 16(2)  The overseas absentee voter shall cast his ballot, upon presentation of the absentee voter identification card issued by the Commission, within thirty (30) days before the day of elections. In the case of seafarers, they shall cast their ballots anytime within sixty (60) days before the day of elections as prescribed in the Implementing Rules and Guidelines. (Sec. 16(3) Case Digest: Overseas Voting

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Absentee

Election Law Reviewer Petitioners are dual citizens whose applications for overseas absentee voting pursuant to The Overseas Absentee Voting Act were denied by the COMELEC due to lack of residency requirement as provided by Sec. 1, Art. V of 1987 Philippine Constitution. WON the act of COMELEC is valid. Section 2, Article V is the exception to the residency requirement found in section 1 of the same article. Provided the duals meet the requirements under section 1 in relation to R.A. 8189, they should not be denied the right of suffrage as an overseas absentee voter. (Lewis vs. COMELEC) Registration of voters Petitioner sought to direct the COMELEC to conduct a special registration of new voters within 120 days before the May 14, 2001 General Elections. WON the petition may be granted. The exercise of right to suffrage is subject to existing substantive and procedural requirements. Sec. 8, R.A. 8189 provides that no registration shall be conducted during the period within 120 days before a regular election and 90 days before a special election. (Akbayan-Youth vs. COMELEC)

10 the appropriate head of the government office for distribution to the applicants. (Sec. 5) The voters who cast absentee votes shall vote one week before election day. (Sec. 8) The Commission on Elections shall canvass the votes cast by absentee voters and shall add the results of the same to the votes reported throughout the country. (Sec. 10) The Party-List System Act (RA 794) : 1. Party – means either a political party or a sectoral party or a coalition of parties. 2.

Political Party – refers to an organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates and supports certain of its leaders and members as candidates for public office. It is a national party when its constituency is spread over the geographical territory of at least a majority of the regions. It is a regional party when its constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising the region.

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Sectoral Party – refers to an organized group of citizens belonging to any of the sectors enumerated in Section 5 hereof whose principal advocacy pertains to the special interest and concerns of their sector.

Local Absentee Voting (E.O. 157) Any person who by reason of public functions and duties, is not in his/her place of registration on election day, may vote in the city/municipality where he/she is assigned on election day: Provided, That he/she is a duly registered voter. (Sec. 1) Thirty (30) days before the election, the appropriate head of office shall submit to the Commission on Elections a list of officers and employees of the office who are registered voters, and who, by reason of their duties and functions, will be in places other than their place of registration, and who desire to exercise their right to vote, with the request that said officers and employees be provided with application forms to cast absentee ballots in their place of assignment. The list and the request shall be under oath. (Sec. 2) Upon verification of the applications, the Commission shall transmit the exact number of absentee ballots to

4. Sectoral Organization – refers to a group of citizens or a coalition of groups of citizens who share similar physical attributes or characteristics, employment, interests or concerns. 5. Coalition – refers to an aggrupation of duly registered national, regional, sectoral parties or organizations for political and/or election purposes. Registration

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Election Law Reviewer Any organized group of persons may register as a party, organization or coalition for purposes of the party-list system by filing with the COMELEC not later than ninety (90) days before the election a petition verified by its president or secretary stating its desire to participate in the party-list system as a national, regional or sectoral party or organization or a coalition of such parties or organizations (Sec. 5, R.A. 7941) .  No votes cast in favor of political party, organization or coalition shall be valid except for those registered under the party-list system (Sec. 7, Art. IX-C, 1987 Constitution).

Purposes: 1. To acquire juridical personality; 2. To entitle it to rights and privileges granted to political parties; and 3. To participate in the party-list system. Groups which cannot be registered as political parties (Sec. 3, R.A. 7941): 1. Religious denominations or sects; 2. Those who seek to achieve their goals through violence or unlawful means; 3. Those who refuse to uphold and adhere to the Constitution; and 4. Those supported by foreign governments. Grounds for cancellation of registration (RAF- SVUCF) (Sec. 6, RA 7941): 1. It is a religious sect or denomination, organization or association, organized for religious purposes; 2. It advocates violence or unlawful means to seek its goal; 3. It is a foreign party or organization; 4. It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes; 5. It violates or fails to comply with laws, rules or regulations relating to elections; 6. It declares untruthful statements in its petition; 7. It has ceased to exist for at least one (1) year; or

11 8. It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2% ) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered. Election of Representatives

Party-List

Constitutional Provision: The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list (Sec. 5 (2), Art. VI). The Party List System – It is a mechanism of proportional representation in the election of representatives to the House of Representatives, from national, regional and sectoral parties, organizations and coalitions thereof registered with the COMELEC. The Party-list system was devised to replace the reserve seat system – the very essence of the party – list system is representation by election (Veterans Federation Party v. COMELEC). Nomination of Party-List Representatives: Each registered party, organization or coalition shall submit to the COMELEC not later than forty-five (45) days before the election a list of names, not less than five (5), from which party-list representatives shall be chosen in case it obtains the required number of votes.  A person may be nominated in one (1) list only.  Only persons who have given their consent in writing may be named in the list.  The list shall not include any candidate for any elective office or a person who has lost his bid for an elective office in the immediately preceding election.  No change of names or alteration of the order of nominees shall be allowed after the same shall have been submitted to the COMELEC except: 1. Nominee dies or 2. Withdraws in writing his nomination, 3. Becomes incapacitated in which case the name of the substitute nominee shall be placed last in the list.

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Election Law Reviewer

12

 Incumbent sectoral representatives in the House of Representatives who are nominated in the party-list system shall not be considered resigned (Section 8, R.A. 7641). Qualifications of Party-List Representatives: 1. Natural-born citizen of the Philippines; 2. A registered voter; 3. A resident of the Philippines for a period of not less than one (1) year immediately preceding the day of the election; 4. Able to read and write; 5. A bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election; and 6. At least twenty-five (25) years of age on the day of the election; In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue in office until the expiration of his term (Section 9, R.A. 7914). Manner of Voting: Every voter shall be entitled to two (2) votes: 1. For candidate for member of the House of Representatives in his legislative district; and 2. For the party, organizations, or coalition he wants represented in the house of Representatives: Provided, That a vote cast for a party, sectoral organization, or coalition not entitled to be voted for shall not be counted: Provided, finally, That the first election under the party-list system shall be held in May 1998 (Section 10, R.A. 7941). The Four Parameters in the PhilippineStyle Party-List Election (BANAT v. COMELEC): 1. 20% allocation: Twenty percent of the total number of the membership of the House of Representatives is the maximum number of seats available to party-list organizations, such that there is automatically one party-list seat for every four existing legislative districts. 2.

A guaranteed seat for a party-list organization garnering 2% of the total votes cast: The

guaranteed seats shall be distributed in a first round of seat allocation to parties receiving at least two percent of the total party-list votes. 3.

Proportional representation: The additional seats, that is, the remaining seats after allocation of the guaranteed seats, shall be distributed to the party-list organizations including those that received less than two percent of the total votes.

4.

The three-seat cap. Each qualified party, regardless of the number of votes it actually obtained, is entitled only to a maximum of 3 seats.

 The formula in the allocation of party-list seat pronounced in Veterans Federation Party v. COMELEC (GR No. 136781, October 6, 2000) has thus been modified.  The continued operation of the two percent threshold as it applies to the allocation of the additional seats is now unconstitutional because this threshold mathematically and physically prevents the filling up of the available party-list seats. The additional seats shall be distributed to the parties in a second round of seat allocation (Barangay Association for National Advancement and Transparency (BANAT) v. COMELEC, G.R. No. 179271, April 21, 2009).  The three seat cap is not a violation of the Constitution because the 1987 Constitution does not require absolute proportionality for the partylist system. The Guidelines for determining whether PartyList Groups have complied with the requirements of Law (Ang Bagong Bayani-OFW Labor Party v. COMELEC): 1. The political party, sector, organization or coalition must represent the marginalized and the underrepresented groups identified in Sec. 5 of RA 7941. Majority of its membership should belong to the marginalized and underrepresented;

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Election Law Reviewer 2.

3.

While even major political parties are expressly allowed by RA 7941 and the Constitution, they must comply with the declared statutory policy of “Filipino citizens belonging to marginalized and underrepresented sectors to be elected to the House of Representatives”. Thus, they must show that they represent the interest of the marginalized and underrepresented; Religious sector may not be represented in the party-list system; except that priests, imams or pastors may be elected should they represent not their religious sect but the indigenous community sector;

4.

A party or an organization must not be disqualified under Sec. 6, RA 7941;

5.

The party or organization must not be an adjunct of, or a project organized or an entity funded or assisted by, the government;

6.

The party, including its nominees must comply with the qualification requirements of Section 9, R.A. 7941;

7.

Not only the candidate party or organization must represent the marginalized and underrepresented sectors, so also must its nominees;

8.

While lacking a well-defined political constituency, the nominee must likewise be able to contribute to the formation and enactment of appropriate legislation that will benefit the nation as a whole.

CANDIDATE S Chapter 5

Candidate – refers to any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy” and that “any person who files certificate of candidacy within [the period for filing] shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy. (Penera v. Comelec)

13 Qualifications President and Vice- President: 1. Natural-born citizen 2. Registered voter 3. Able to read and write 4. At least 40 years old on the day of the election 5. Resident of the Philippines for at least 10 years immediately preceding the day of the election. (Sec.2, Art. VII) Senators: 1. Natural-born citizen 2. At least 35 yrs. old on the day of the election 3. Able to read & write 4. Registered voter 5. Resident of RP for not less than 2 years immediately preceding the day of the election (Sec. 2, Art. VI) District Representatives: 1.Natural-born citizen 2.At least 25 years old on the day of election 3.Able to read and write 4.Registered voter in the district in which he shall be elected 5.Resident of the same district for a period of not less than 1 year Immediately preceding the day of election. (Sec. 6, Art. VI) Sectoral Representatives: 1. Natural-born citizen 2. At least 25 years old on the day of election 3. Able to read and write 4. Resident for a period not less than one year immediately preceding the day of the election 5. Bona fide member of the sector he seeks to represent Governor, Vice-governor, Mayor, Vicemayor, Punong barangay, Sanggunian (sg) members 1. Citizen of the Philippines; 2. Registered voter in the barangay, municipality, city or province, or, in the case of a member of the SG panlalawigan, panlungsod or bayan, the district where he intends to be elected;

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Election Law Reviewer 3. Resident therein for at least 1 year immediately preceding the election; 4. Able to read and write Filipino or any other local language or dialect; 5. On election day, age must at least be: a) 23 years – governor, vice-governor, member of the SG panlalawigan, mayor, vice mayor, or member of the SG panlungsod of HUC; b) 21 years – mayor or vice mayor of ICC, CC, or municipalities; 18 years – member of the SG panlungsod or SG bayan, or punong barangay or member of the SG barangay 15 but not more than 18 years – SK(Sec 39, R.A. 7160)  Qualifications prescribed by law are continuing requirements and must be possessed for the duration of the officer’s active tenure. Once any of the required qualification is lost, his title to the office may be seasonably challenged. (Frivaldo vs. COMELEC)  The law does not specify any particular date or time when the candidate must possess citizenship unlike that for residence and age. It must be possessed upon proclamation or on the day that the term begins (Id.) Disqualifications: 1. Under the Omnibus Election Code: a. Declared as incompetent or insane by competent authority; b. Convicted by final judgment for subversion, insurrection, rebellion or any offense for which he has been sentenced to a penalty of 18 months imprisonment; c. Convicted by final judgment for a crime involving moral turpitude; d. Any person who is a permanent resident of or immigrant to a foreign country. 2.

Under the Local Government Code (Sec. 40, R.A. 7160) – Applicable to candidates for local elective office only (Magno v. COMELEC, supra):

14 a. Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;  Those who have not served their sentence by reason of the grant of probation which should not be equated with service of sentence, should not likewise be disqualified from running for a local elective office because the twoyear period of ineligibility does not even begin to run (Moreno v. COMELEC, GR No. 168550, August 10, 2006). b. Those removed from office as a result of an administrative case;  An elective local official who was removed from office as a result of an administrative case prior to January 1, 1992 – the date of effectivity of the Local Government Code – is not disqualified from running for an elective local public office, because Sec. 40 of the Local Government Code cannot be given retroactive effect (Grego v. COMELEC, GR No. 125955, June 19, 1997). c. Those convicted by final judgment for violating the oath of allegiance to the Republic; d. Those with dual citizenship;  Dual citizenship as a disqualification must refer to citizens with dual allegiance. Consequently, persons with mere dual citizenship do not fall under the disqualification (Mercado v. Manzano, GR No. 135083, May 26, 1999). e. Fugitives from justice in criminal or nonpolitical cases here or abroad;  A fugitive from justice includes not only those who flee after conviction to avoid punishment, but likewise those who, after being charged, flee to avoid prosecution (Marquez v. COMELEC,). f. Permanent residents in a foreign country or those who have acquired the right to reside

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Election Law Reviewer abroad and continue to avail of the same right after the effectivity of this Code;  “Green card” is ample evidence to show that the person is an immigrant to, or a permanent resident of, the United States of America (Caasi v. Court of Appeal). g. The insane or feeble-minded. 3. Additional Grounds for Disqualification (Sec. 68, BP 881) a. One who has violated provisions on: i. Campaign period ii. Removal, destruction of lawful election propaganda iii. Prohibited forms of propaganda iv. Regulation of propaganda through mass media b. One who has given money or other material consideration to influence voters c. One who committed acts of terrorism d. One who spent election campaign in excess allowed by law e. One who solicited or received contribution prohibited by law President: 1. not eligible for any reelection; 2. no person who has succeeded as President and served as such for more than four years shall be qualified for election to the same office at any time. (Sec.4, Art. VII) 3. General Disqualification* Vice-President: 1. Shall not serve for more than two consecutive terms. (Sec.4, Art. VII and Sec. 4, Art. VI); 2. General Disqualifications: a. one who has been declared by competent authority as insane or incompetent; One who has been sentenced by final judgment for subversion, insurrection, rebellion, or for any offense for which he has been sentenced to a penalty of more than 18 months or for a crime involving moral turpitude, unless given plenary pardon or granted amnesty. (Sec. 12, BP 881)

15 Senators: Shall not serve for more than two consecutive terms. (Sec 4(2), Art. VI) District Representatives: 1. Shall not serve for more than three consecutive terms. (Sec. 7 Art. VI); 2. One who has been declared by competent authority as insane or incompetent; 3. One who has been sentenced by final judgment for subversion, insurrection, rebellion, or for any offense for which he has been sentenced to a penalty of more than 18 months or for a crime involving moral turpitude, unless given plenary pardon or granted amnesty. (Sec. 12, BP 881 or the Omnibus Election Code) Governor, Vice-governor, Mayor, Vicemayor, Punong barangay, Sanggunian (sg) members: (Sec. 41, R.A. 7160) 1. sentenced by final judgement for an offense involving moral turpitude or for an offense punishable by 1 year or more, 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. with dual citizenship; 5. fugitives from justice in criminal and non-political case here and abroad; 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 Local Government Code; 7. insane or feeble-minded Certificate of Candidacy A statement of a person seeking to run for a public office certifying that he announces his candidacy for the office mentioned and that he is eligible for the office, the name of the political party to which he belongs if he belongs to any, and his post-office

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Election Law Reviewer address for all election purposes being as well stated (Sinaca v Mula).  No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed by law (Sec. 73, OEC).  Automatic Resignation – Officials holding appointive offices, including active members of AFP and officers of government-owned or controlled corporations shall be considered ipso facto resigned (Sec. 66, OEC & Art. 13, par. 3, R.A. 9369). 

Only elective officials may file their certificates of candidacy without being deemed ipso facto resigned from their posts. There is no violation of the equal protection clause since there is a SUBSTANTIAL DISTINCTION BETWEEN ELECTIVE AND APPOINTIVE OFFICIALS to warrant differential treatment: i. Elective officials occupy their office by virtue of the mandate of the electorate. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. ii. Appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take part in any election except to vote. On the other hand, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities (Quinto, et al. v COMELEC)

 Formal Defects in the Certificate of Candidacy: The election of a candidate cannot be annulled on the sole ground of formal defects in his certificate of candidacy (De Guzman v. Board of Canvassers).  Death, Disqualification or Withdrawal of Candidate; Substitution of Candidate: If after the last day for the filing of certificates of candidacy, an official candidate of a registered

16 accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified not later than mid-day of the day of the election (Sec. 76, OEC).  Withdrawal of Certificate of Candidacy: The withdrawal of the certificate of candidacy shall effect the disqualification of the candidate to be elected, for the position. The withdrawal of the withdrawal, for the purpose of reviving the certificate of candidacy, must be made within the period provided by law for the filing of certificates of candidacy.  Filing of Two Certificates of Candidacy: When a person files two certificates of candidacy for different offices, he becomes ineligible for either position (Sec. 72, OEC). He may withdraw one of his certificates by filing a sworn declaration with the Commission before the deadline for the filing of certificates of candidacy. Before the deadline for filing the certificate, a candidate may withdraw all except one, declaring under oath the office for which he desires to be eligible and cancel the certificate of candidacy for other office or offices (Go v. COMELEC).  The COMELEC shall have only the ministerial duty to receive and acknowledge receipt of the certificates of candidacy (Sec. 76, OEC). Accordingly, the COMELEC may not, by itself, without proper proceedings, deny due course to or cancel a certificate of candidacy filed in due form.

Exceptions: 1. Authority over nuisance candidates 2. Power to deny due course to or cancel a certificate of candidacy under Sec. 78, OEC  Nuisance Candidates: COMELEC may motu propio or upon petition of an interested party, refuse to give due course to or cancel a

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Election Law Reviewer certificate of candidacy if shown that said certificate was filed: 1. To put the election process in mockery or disrepute; 2. To cause confusion among voters by similarity of names of registered candidates; 3. By other circumstances or acts which demonstrate that a candidate has no bona fide intention to run for the office for which his certificate of candidacy has been filed, and thus prevent a faithful determination of the true will of the electorate.  Petition to Deny Due Course or to Cancel Certificate of Candidacy  The COMELEC, upon proper petition, may cancel a certificate of candidacy on the ground that any material misrepresentation contained therein as required under Sec. 74 of the OEC is false (Sec. 78, OEC), provided that (a) the false representation pertains to material matter affecting substantive rights of a candidate and that (b) the false representation must consist of deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible (Salcedo II v. COMELEC).  The petition may be filed not later than 25 days from the time of filing of the certificate of candidacy, and shall be decided, after due notice and hearing, not later than 15 days before the election (Section 78 B.P. 881).  Jurisdiction over a petition to cancel a certificate ofcandidacy lies with the COMELEC in division, not with the COMELEC en banc (Garvida v. Sales).  Effect of Disqualification Case: 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. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or

17 Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong (Sec. 6, RA 6646 or the Electoral Reforms Law of 1987).  Note that the COMELEC can suspend proclamation only when evidence of the winning candidate’s guilt is strong (Codilla, Sr. v. De Venecia, et. al).  The use of the word “may” indicates that the suspension of the proclamation is merely permissive. If the COMELEC does not find any sufficient ground to suspend proclamation, then a proclamation may be made (Grego v. COMELEC, supra).  It is incorrect to say that since a candidate has been disqualified, the votes intended for the disqualified candidate should, in effect, be null and void. This would amount to disenfranchising the electorate in whom sovereignty reside (Ortega v. COMELEC).  The ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. Exceptions: 1. The one who obtained the highest number of votes is disqualified; AND 2. The electorate is fully aware in fact and in law of the candidate’s disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate. (Grego v. COMELEC, supra). Case Digest: Term of office The petitioner was duly elected and served 2 consecutive terms as Municipal Mayor prior to 1995 elections. In the 1995 elections he was again proclaimed winner but due to election protest against him, he was removed from office months before the

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1998 elections. In the 1998 elections he again ran and won. A disqualification case was filed against him. WON petitioner’s service from 1996 to 1998 as Mayor may be considered as service of one full term. Two requisites for the disqualification must concur: 1. that the official concerned has been duly elected for three consecutive terms in the same local government post; and 2. that he has fully served three consecutive terms. The two requisites are absent. He cannot be considered as having been duly elected and he did not fully serve the term by reason of involuntary relinquishment of office. (Lonzanida vs. COMELEC)

Fugitive from Justice Petitioner sought the cancellation of respondent’s Certificate of Candidacy on the ground that the latter is a fugitive from justice. The respondent is allegedly criminally charged in the United States and that his arrest is yet to be served because of his flight from the country. WON fugitive from justice covers only those convicted by final judgment. Fugitive from justice does not mean a person convicted by final judgment. It includes those after being charged flees to avoid prosecution. (Marquez vs. COMELEC)

Philippine citizenship Private respondent filed a petition for disqualification alleging that petitioner is not a citizen of the Philippines, But an immigrant and resident of USA. Petitioner admitted that he was a naturalized American citizen but he applied for dual citizenship under R.A. 9225. WON he may be allowed to run for public office. R.A. 9225 imposes an additional requirement on those who wish to seek elective public office. He is thus disqualified from running for public office in view of his failure to renounce his American citizenship. (De Guzman vs. COMELEC) _ Petitioner believing that he is a Filipino citizen, upon filing an application for repatriation, filed his Certificate of Candidacy for mayor. The absence of any official action or approval by the proper authorities, a mere application for repatriation does not and cannot amount to the automatic reacquisition of the applicant’s Philippine citizenship. (Labo vs. COMELEC)

Green Card Holder Petitioner was sought to be disqualified to hold public office on the ground that he is a green card holder. He alleged that he merely obtained the green card for convenience, that he is a permanent resident of the Philippines and voted in the previous elections. WON green card is proof that the holder is a permanent resident of the United States. Immigration to the Unites States constituted an abandonment of respondent’s domicile and residence in the Philippines. He entered the United States with the intention to have his residence there permanently as evidenced by the application for an immigrant’s visa. To be qualified to run for elective office in the Philippines, the law requires that the candidate who is a green card holder must have waived his status as a permanent resident or immigrant of a foreign country. (Caasi vs. COMELEC)

Moral Turpitude A petition for disqualification was filed against the petitioner for the alleged conviction for violation of BP 22 which is a crime involving moral turpitude. WON every criminal act involves moral turpitude. Not every criminal act involves moral turpitude and the court has the authority to determine. It depends upon the circumstances surrounding the violation of the statute. (Villaber vs. COMELEC)

CAMPAIGN, ELECTION PROPAGANDA, CONTRIBUTIONS AND EXPENDITURES Chapter 6

Election Campaign or Partisan Political Activity – refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office (Sec. 79, OEC).

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Election Law Reviewer  Prohibition against Premature Campaigning – Partisan political activities are prohibited outside the campaign period (Sec. 80, OEC). However, the following political activities are permitted outside the campaign period: 1. Those performed for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party, aggroupment, or coalition of parties; 2. Public expressions or opinions or discussions of probable issues in a forthcoming election or on attributes of or criticisms against probable candidates proposed to be nominated in a forthcoming political party convention (Sec. 79, OEC).  If there is yet no candidate whose interest it is to be promoted or defeated, there is no restriction to any election campaign or partisan political activity. Accordingly, engaging in partisan political activity in favor of, or against, a person who has not filed a certificate of candidacy is not prohibited.  A person who files a certificate of candidacy is not a candidate until the start of the campaign period (Lanot v. Comelec)  A candidate is liable for an election offense only for acts done during the campaign period, not before. The law is clear as daylight – any election offense that may be committed by a candidate under any election law cannot be committed before the start of the campaign period. (Penera v. Comelec) Fair Elections Act (R.A. 9006) Lawful Election Propaganda 1. Written/Printed Materials (does not exceed 8 ½ in. width by 14 in. length) 2. Handwritten/printed letters

19 3. Posters (not exceeding 2 x 3 ft.), however, 3 by 8 ft. streamers are allowed in announcing a public meeting or rally, at the site and on the occasion of a public meeting or rally, may be displayed 5 days before the date of rally but shall be removed within 24 hours after said rally. 4. Print Ads 5. ¼ page in broadsheets and ½ page in tabloids thrice a week per newspaper, magazine or other publication during the campaign period 6. Broadcast Media (i.e. TV and Radio): a. National Positions: 120 minutes for TV and 180 minutes for radio; b. Local Positions: 60 minutes for TV and 90 minutes for radio. Prohibited forms (Sec. 85, BP 881)

of

Election

Propaganda

(a) To print, publish, post or distribute any poster, pamphlet, circular, handbill, or printed matter urging voters to vote for or against any candidate unless they bear the names and addresses of the printer and payor as required in Section 84 hereof; (b) To erect, put up, make use of, attach, float or display any billboard, tinplate-poster, balloons and the like, of whatever size, shape, form or kind, advertising for or against any candidate or political party; (c) To purchase, manufacture, request, distribute or accept electoral propaganda gadgets, such as pens, lighters, fans of whatever nature, flashlights, athletic goods or materials, wallets, shirts, hats, bandanas, matches, cigarettes and the like, except that campaign supporters accompanying a candidate shall be allowed to wear hats and/or shirts or T-shirts advertising a candidate; (d) To show or display publicly any advertisement or propaganda for or against any candidate by means of cinematography, audio-visual units or other screen projections except telecasts which may be allowed as hereinafter provided; and (e) For any radio broadcasting or television station to sell or give free of charge air time for campaign and other political purposes except as authorized in

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Election Law Reviewer this Code under the rules and regulations promulgated by the Commission pursuant thereto Any prohibited election propaganda gadget or advertisement shall be stopped, confiscated or torn down by the representative of the Commission upon specific authority of the Commission. (Sec. 39, 1978 EC, modified) Election Survey: The Supreme Court held that Sec. 5.4 of the Fair Elections Act prohibiting publication of survey results 15 days immediately preceding a national election and 7 days before a local election violates the constitutional rights of speech, expression, and the press because:  It imposes a prior restraint on the freedom of expression;  It is a direct and total suppression of a category of expression even though such suppression is only for a limited period; and  The governmental interest sought to be promoted can be achieved by means other than the suppression of freedom of expression (Social Weather Station v. COMELEC, G.R. No. 147571 May 5, 2001). COMELEC Space The COMELEC shall procure the print space upon payment of just compensation from at least three (3) national newspapers of general circulation wherein candidates for national office can announce their candidacies. Such space shall be allocated free of charge equally and impartially among all the candidates for national office on three (3) different calendar days: the first day within the first week of the campaign period; the second day within the fifth week of the campaign period; and the third day within the tenth week of the campaign period (Sec. 7.1, RA 9006). COMELEC Time The COMELEC shall also procure free airtime from at least three (3) national television networks and three(3) national radio networks, which shall also be allocated free of charge equally and impartially among all candidates for national office. Such free time shall be allocated on three (3) different calendar days; the first day within the first week of the

20 campaign period; the second day within the fifth week of the campaign period; and the third day within the tenth weeks of the campaign period (Sec 7.2, RA 9006). Right to Reply All registered parties and bona fide candidates shall have the right to reply to charges published against them. The reply shall be given publicity by the newspaper, televeision and/or radio station which first printed or aired the charges with the same prominence or in the same page or section or in the same time slot as the first statement (Sec. 10, RA 9006, Fair Election Act). Equal Access to Media Time and Space (Sec 6, BP 881)  Print advertisements shall not exceed onefourth (1/4) page in broadsheet and one-half (1/2) page in tabloids thrice a week per newspaper, magazine or other publications, during the campaign period.  Not more than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180) minutes of radio advertisement whether by purchase or donation.  Not more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement whether by purchase or donation. Exit Polls Exit polls may only be taken subject to the following requirements: 1. Pollsters shall not conduct their surveys within fifty (50) meters from the polling place, whether said survey is taken in a home, dwelling place and other places; 2. Pollsters shall wear distinctive clothing; 3. Pollsters shall inform the voters that they may refuse to answer; and 4. The result of the exit polls may be announced after the closing of the polls on election day, and

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Election Law Reviewer 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.  Exit polls and the dissemination of their results through mass media constitutes part of the freedom of speech and of the press. Hence, the Comelec cannot ban them totally in the guise of promoting clean, honest, orderly and credible elections. (ABS-CBN v. COMELEC, G.R. No. 133486, January 28, 2000) Contribution- includes a gift, donation, subscription, loan, advance or deposit of money or anything of value, or a contract, promise or agreement to contribute, whether or not legally enforceable, made for the purpose of 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. (Sec. 94, BP 881) Prohibited Contributions: 1. Contribution for purposes of partisan political activity shall be made directly or indirectly by any of the following: a. Public or private financial institutions; except, loan made by financial institutions legally in the business of lending money, and in accordance with laws and regulations and in the ordinary course of business; b. Natural and juridical persons operating a public utility or in possession of or exploiting any natural resources of the nation; c. Natural and juridical persons who hold contracts or sub-contracts to supply the government or any of its divisions, subdivisions or instrumentalities, with goods or services or to perform construction or other works; d. Natural and juridical persons who have been granted franchises, incentives, exemptions, allocations or similar privileges or

21 concessions by the government or any of its divisions, subdivisions or instrumentalities, including government-owned or controlled corporations; e. Natural and juridical persons who, within one year prior to the date of the election, have been granted loans or other accommodations in excess of P100,000 by the government or any of its divisions, subdivisions or instrumentalities including governmentowned or controlled corporations; f. Educational institutions which have received grants of public funds amounting to no less than P100,000.00; g. Officials or employees in the Civil Service, or members of the Armed Forces of the Philippines; and h. Foreigners and foreign corporations.  It shall be unlawful for any person to solicit or receive any contribution from any of the persons or entities enumerated herein (Sec. 95, OEC). 2. It shall be unlawful for any person, including a political party or public or private entity to solicit or receive, directly or indirectly, any aid or contribution of whatever form or nature from any foreign national, government or entity for the purposes of influencing the results of the election (Sec 96, OEC).

3. It shall be unlawful for any person to hold dances, lotteries, cockfights, games, boxing bouts, bingo, beauty contests, entertainments, or cinematographic, theatrical or other performances for the purpose of raising funds for an election campaign or for the support of any candidate from the commencement of the election period up to and including election day; or for any person or organization, whether civic or religious, directly or indirectly, to solicit and/or accept from any candidate for public office, or from his campaign manager, agent or representative, or any person acting in their behalf, any gift, food, transportation, contribution or donation in cash or in kind from the commencement of the election period up to and

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Election Law Reviewer including election day; except, normal and customary religious stipends, tithes, or collections on Sundays and/or other designated collection days, are excluded from this prohibition (Sec. 97, OEC). Expenditure- 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. (Sec. 94, BP 881) Limitation on Expenses: Sec. 13, Synchronized Elections and for Electoral Reforms – R.A. 7166 1. Candidates: Ten pesos (P10.00) for President and Vice-President; and for other candidates Three Pesos (P3.00) for every voter currently registered in the constituency where he filed his certificate of candidacy: Provided, That a candidate without any political party and without support from any political party may be allowed to spend Five Pesos (P5.00) for every such voter; and 2. For political parties: Five pesos (P5.00) for every voter currently registered in the constituency or constituencies where it has official candidates. Statement of Contributions and Expenses (Sec. 14, RA 7166) Every candidate and treasurer of the political party shall, within thirty (30) days after the day of the election, file in duplicate with the offices of the Commission the full, true and itemized statement of all contributions and expenditures in connection with the election. Effect of Failure to File: 1. Prohibited from entering upon the duties of his office 2. Administrative fines  In the case of Pilar v COMELEC (245 SCRA 759), it was held that the law made no

22 distinction as to whether the candidate pursued his candidacy or withdrew it. The State has an interest in seeing that the electoral process is clean. One way of attaining the objective is to regulate contributions and expenses of candidates. A candidate who withdrew may have accepted contributions and incurred expenses.

AUTOMATED ELECTIONS

Chapter 7

Automated Elections Act (R.A. 9369)  Automated election system, hereinafter to as 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)  Electronic transmission - conveying data in electronic form from one location to other; (Sec. 2)  Paper-based election system - a type of automated election system that use paper ballots, records and counts votes, tabulates, consolidates/canvasses and transmits electronically the results of the vote count;" (Sec. 2)  Direct recording electronic election system - a type or automated election system that uses electronic ballots, records, votes by means of a ballot display provided with mechanical or electro-optical component that can be activated by the voter, processes data by means of a computer programs, record voting data and ballot images, and transmits voting results electronically; (Sec. 2)

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Election Law Reviewer  Continuity plan - a list of contingency measures, and the policies for activation of such, that are put in place to ensure continuous operation of the AES; (Sec. 2)  In the case of Roque v. Comelec (G.R. No. 188456, September 10, 2009), the SC held that the COMELEC did not abdicate its mandate and responsibility under Sec. 26 of RA 8436. With the view the SC takes of the automation contract, the role of Smartmatic TIM Corporation is basically to supply the goods necessary for the automation project, such as but not limited to the PCOS machines, PCs, electronic transmission devices and related equipment, and the like. As lessees of the goods and the back-up equipment, the corporation and its operators would provide assistance with respect to the machines to be used by the COMELEC which, at the end of the day, will be conducting the election thru its personnel and whoever it deputizes.  The COMELEC should be afforded ample elbow room and enough wherewithal in devising means and initiatives that would enable it to accomplish the great objective for which it was created – to promote free, orderly, honest and peaceful elections  Giving to the Provider (Smartmatic TIM) the access keys ― both the private and public access keys ― is like giving to the system administrator of Yahoo or Hotmail one's private password to his or her email account. The private key is supposed to be private to the Chair of the Board of Election Inspectors, generated by him and unknown to the Provider. Otherwise, the Provider will have the capacity to alter the election results at the precinct level. Worse, even the private keys at the canvassing level are generated by the Provider, allowing the Provider to change the election results at the canvassing level. Clearly, the COMELEC has abdicated control over the elections to the Provider, putting the

23 integrity and outcome of the 10 May 2010 elections solely in the hands of the Provider (Roque v. Comelec, G.R. No. 188456, September 10, 2009, Justice Carpio dissenting) The Advisory Council (Section 8)  Eight members who must must be registered Filipino voters, of known independence, competence and probity; A person who is affiliated with any political party or candidate for any national position, or is related to a candidate for any national position by affinity or consanguinity within the fourth civil degree, shall not be eligible for appointment or designation to the Advisory Council. Should any such situation arise at any time during the incumbency of a member, the designation or appointment of that member, shall ipso facto be terminated Joint Congressional Oversight Committee (Section 33)  Composed of seven members each from the Senate and the House of Representatives o four of whom shall come from the majority o three from the minority  To monitor and evaluate the implementation of this Act. Electoral Sabotage- any person or member of the board of election inspectors or board of canvassers who tampers, increases or decreases the votes received by a candidates in any election or any member of the board who refuses after proper verification and hearing ,to credit the correct votes or deduct such tampered votes: Provided, however, That when the tampering, increase or decrease of votes or the refusal to credit the correct votes and /or to deduct tampered to deduct tampered votes are perpetrated on large scale or in substantial numbers, the same shall be considered not as an ordinary election offense under Section 261 of the omnibus

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Election Law Reviewer election code. But a special election offense to be known as electoral sabotage and the penalty to be imposed shall be life imprisonment.

"The act or offense committed shall fall under the category of electoral sabotage in any of the following instances;

(1) When the tampering, increase and / or decrease of votes perpetrated or the refusal to credit the correct votes or to deduct tampered votes, is/are committed in the election of a national elective office which is voted upon nationwide and the tampering, increase and/ or decrease votes refusal to credit the correct votes or to deduct tampered votes, shall adversely affect the results of the election to the said national office to the extent that losing candidate/s is /are made to appear the winner/s;

(2) Regardless of the elective office involved, when the tampering, increase and/or decrease of votes committed or the refusal to credit the correct votes or to deduct tampered votes perpetrated , is a accomplished in a single election document or in the transposition of the figure / results from one election document to another and involved in the said tampering increase and/or decrease or refusal to credit correct votes or deduct tampered votes exceed five thousand (5,000) votes, and that the same adversely affects the true results of the election ;

(3) Any and all other forms or tampering increase/s and/ or decrease/s of votes perpetuated or in cases of refusal to credit the correcp votes or deduct the tampered votes, where the total votes involved exceed ten thousand (10,000) votes;

"Provided finally; That any and all either persons or individuals determined to be conspiracy or in connivance with the members of the BEIs or BOCs

24 involved, shall be meted the same penalty of life imprisonment." (Sec. 27)

Prosecution. - The Commission shall, through its duly authorized legal officers, have the power, concurrent with the other prosecuting arms of the government, to conduct preliminary investigation of all election offenses punishable under this Code, and prosecute the same (Sec. 265)

Case Digest: Propaganda materials Petitioner entered into formal agreements with certain establishments to endorse their products and for the use his name and image. Then, he filed his Certificate of Candidacy for the position of Senator. COMELEC ordered the petitioner to remove his billboards and to cover them from public view. WON the order of the COMELEC is valid. By regulating the use of election propaganda materials, the COMELEC is merely doing its duty under the law. If the subject billboards will be allowed, he would have more opportunity to make themselves known to the electorate, to the disadvantage of other candidates who do not have the same chance. (Chavez vs. COMELEC) Election propaganda Petitioner prayed that Sec. 12, R.A. 6132 be declared unconstitutional for it declares unlawful to print and publish any advertisement, paid comment or paid article in favor of a candidate unless the names of all other candidates are also mentioned with equal prominence. WON the Law is unconstitutional.The slight limitation of the freedom of expression of the individual, whether candidate or not, is only one of the many devices employed by the law to prevent a clear and present danger of the perversion and prostitution of the electoral apparatus and of denial of equal protection of the laws. (Badoy, Jr. vs. COMELEC) _

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Election Law Reviewer

Petitioner participated in a motorcade after filing her Certificate of Candidacy. Won it is considered premature campaigning A person who files a COC is not a candidate until the start of the campaign period. A candidate is liable for an election offense only for acts during the campaign period, not before. (Penera vs. COMELEC) _ Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing §5.4 of R.A. No. 9006 (Fair Election Act), which provides:

Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election. WON said provision is unconstitutional The Court held that §5.4 is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct and total suppression of a category of expression even though such suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than the suppression of freedom of expression. (SWS vs. COMELEC)

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