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Political Law Reviewer - Election
Political Law Reviewer - Election
ELECTION LAWS
Election
Embodiment of the popular will, the expression of the sovereign power of the people.
Components:
Listing of votes
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.
Special election is when there is 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.
Political Parties
Definition (Omnibus Election Code)
An organized group of persons pursuing the same ideology, political ideas or platforms of government
including its branches and divisions.
Types of Political Parties
1) Registered Parties:
1.
Dominant Majority Party usually the administration party; entitled to a copy of election return
2.
3.
4.
Top 3 Political Parties entitled to appoint principal watcher and a copy of the certificate of canvass
5.
2) Non-registered parties
Criteria to Determine the Type of Political Party
1.
2.
3.
4.
5.
2.
Candidates
No person shall be elected into public office unless he files his certificate of candidacy within the
prescribed period
2.
No person shall be eligible for more than one office. If he/she files for more than one position, he shall not
be eligible for all unless he cancels all and retains one
3.
The certificate of candidacy shall be filed by the candidate personally or by his duly authorized
representative.
4.
Upon filing, an individual becomes a candidate, he is already covered by rules, restrictions and processes
involving candidates.
2.
Not possessing qualifications and possessing disqualifications under the Local Government Code
2.1 Sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by
one year or more of imprisonment within two years after serving sentence
2.2 Removed from office as a result of an administrative case
2.3 Convicted by final judgment for violating the oath of allegiance to the Republic
2.4 Dual citizenship ( more specifically, dual allegiance)
2.5 Fugitives from justice in criminal or non-political cases here or abroad
2.6 Permanent residents in a foreign country or those who have acquired the right to reside abroad and
continue to avail of the same right
2.7 Insane or feeble-minded
1.
Nuisance candidate
2.
3.
* Disqualifications (from continuing as a candidate or from holding the office if already elected):
Any candidate, who in an action or protest in which he is a party is declared by final decision of a competent
court guilty of, or is found by the Commission of having:
1.
Given money or other material consideration to influence, induce or corrupt the voters or public officials
performing electoral functions.
2.
3.
Spent in his election campaign an amount in excess of that allowed by the Omnibus Election Code )
4.
5.
6.
Permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective
office UNLESS he/she has waived his/her status as a permanent resident/immigrant of a foreign country in
accordance with the residence requirement provided for under election laws.
Any candidate who has been declared by final judgment to be disqualified shall NOT be voted for. The
votes cast in his favor shall not be counted.
2.
If the candidate is not disqualified by final judgment before the election and receives the highest number
of votes in the election, the court or COMELEC will continue with the trial and hearing of the action, inquiry
or protest. Upon motion of the complainant or intervenor, the court or COMELEC may order the suspension
of the proclamation of the candidate whenever the evidence of his guilt is strong.
Nuisance Candidates
A. The term refers to candidates who have no bona fide intention to run for the office for which the
certificate of candidacy has been filed and would thus prevent a faithful determination of the true will of the
people.
B. Power of COMELEC
1.
May refuse to give due course to or cancel a certificate of candidacy of a nuisance candidate. This can be
done motu proprio or upon verified petition of an interested party.
Certificate of candidacy has been filed to put the election process in mockery/disrepute or
2.
To cause confusion among the voters by the similarity of the names of the registered candidates
3.
Other circumstances which clearly demonstrate that the candidate has no bona fide intention to run for the
office
1) It refers to an act designed to promote the election or defeat of a particular candidate/s to a public office
2) It includes:
A. Forming organizations, associations, clubs, committees or other groups of persons for the purpose of
soliciting votes and/or undertaking any campaign for or against a candidate.
B. Holding political caucuses, conferences, meetings, rallies, parades or other similar assemblies for the
purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate.
C. Making speeches, announcements or commentaries or holding interviews for or against the election of any
candidate for public office.
D. Publishing or distributing campaign literature or materials designed to support or oppose the election of
any candidate.
E. Directly or indirectly soliciting votes, pledges or support for or against a candidate.
3) When the acts enumerated above are NOT considered an election campaign/partisan political activity.
If the acts are 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.
RA 9006 FAIR ELECTION ACT
Important Features:
1) Repeal of Sec. 67 of the OEC Now, any ELECTIVE official, whether national or local, running for any office
other than the one which he is holding in a permanent capacity shall not be considered ipso facto resigned
from his office upon the filing of his certificate of candidacy.
2) Lifting of the Political Ad Ban Written and Printed Materials (8.5 W x 14L)
Letters
Posters (2 x 3) in common-private poster areas ( not more than 10 public places per political party or
independent candidate, 12 16), private places and public places
Rally streamers (3 x 8) NOT MORE THAN 2
Paid Advertisements at Discounted Rates
Print : 1/4th page in broadsheet and page in tabloid 3x a week
Television: 120 minutes for candidate for nationally elective office and 60 for local
Radio: 180 minutes for candidate for nationally elective office and 90 for local
COMELEC free space (3 national newspaper for nationally elective officials and 1 national newspaper for
local) and airtime
(3 national television networks for nationally elective officials and 1 station for local ) : equal allocation for all
candidates for 3 calendar days
Authorized Expenses ( multiplied with the total number of registered voters )
P 3 for other candidates for every voter currently registered in the constituency
Voters
Qualifications
Residence
1.
He /she should have resided in the Philippines for one year and
2.
Resided in the city/municipality wherein he proposes to vote for at least 6 months immediately preceding
the election.
Residence Requirement
If the transfer of residence is due to any of the following reasons, the person concerned will be deemed NOT
to have lost his original residence:
A. Transfer solely because of occupation, profession, employment in private or public service
B. Educational activities
C. Work in military or naval reservations
D. Service in the army, navy or air force, national police force
E. Confinement/detention in government institutions in accordance with law.
A. If sentenced by final judgment to suffer imprisonment for not less than 1 year and such disability was not
removed by plenary pardon or has not been granted amnesty. However, any person disqualified to vote shall
automatically reacquire the right to vote upon expiration of 5 years after service of sentence.
B. Any person who has been adjudged by final judgment by competent court or tribunal of having
committed any crime involving disloyalty to the duly constituted government such as rebellion or any crime
against national security:
1. UNLESS restored to his full civil and political rights in accordance with law.
2. However, he shall regain his right to vote automatically upon expiration of 5 years after service of
sentence.
C. Insane or incompetent persons as declared by competent authority.
Jurisdiction in Inclusion/Exclusion cases
A. The municipal and metropolitan trial courts shall have original and exclusive jurisdiction over all matters of
inclusion and exclusion of voters from the list in their respective municipalities or cities. Petition filed at any
time except 105 days before regular election or 75 days before special election
B. Decisions may be appealed to the RTC within 5 days from receipt of notice of decision.
C. RTC will decide the appeal within 10 days. Decision is final and executory.
D. Note: Relate this to Article IX of the Constitution which provides that the COMELEC has no jurisdiction
over questions involving the right to vote.
E. Exclusion is through sworn petition and not later than 100 days before regular election; 65 days before
special election
Grounds when the List of Voters will be altered:
Deactivation/ Reactivation
Exclusion/ Inclusion
New voters
Transfer of Residence
Deactivation means removing the registration records of persons from the precinct book of voters and
place the same, properly marked and dated in indelible ink, in the inactive file after entering the cause of
deactivation.
How is reactivation of registration effected ?
Sworn application for reactivation
Affidavit
Not later than 120 days before regular election and 90 days before special election
Annulment of Book of Voters is through verified petition; notice and hearing; not prepared in accordance
with law or prepared through fraud, bribery, forgery, impersonation, intimidation, force, any similar
irregularity or which contains data that are statistically improbable
Cannot be done within 90 days before election
Postponement of Election
Causes
Violence
Terrorism
Force majeure
Effect
It is impossible to hold a free, orderly and honest election in any political subdivision
COMELEC can postpone the election (when decided by a majority vote of the COMELEC sitting en banc,
RA 7166):
A. Motu proprio
B. Upon a verified petition by any interested party, after due notice and hearing
Date of new election
The date of the postponed election should be reasonably close to the date of the election not held,
suspended, or which resulted in a failure to elect. It should not be later than 30 days after the cessation of
the cause for such postponement or suspension of the election or failure to elect.
Failure of Election
Causes
Force majeure
Violence
Terrorism
Fraud
Under RA 7166, the causes for the declaration of the failure of election may occur before or after the casting
of votes or on the day of the election.
Effects of above causes
A. Election in any polling place was not held on the date fixed;
B. Election was suspended before the hour fixed by law for the closing of the voting
C. Elections results in a failure to elect (after the voting and during the preparation and
transmission of
COMELEC can call for the holding or continuation of the election not held, suspended, or which resulted in a
failure to elect. The election should be held not later than 30 days after the cessation of the cause of the
postponement or suspension of the election or failure to elect. This is decided by the COMELEC, by a majority
vote of its members, sitting en banc.
1.
2.
Advocates violence
3.
4.
5.
6.
7.
8.
Failed to participate in the last two preceding elections or fails to obtain at least 2% of the votes cast under
the party-list system in the 2 preceding elections for the constituency in which it has registered
Nomination of party-list reps should 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
Incumbent sectoral representatives in the House of Representatives who are nominated in the party-list
system shall not be considered resigned
Party List Reps constitute 20% of the total number of the members of the House of Reps including those
under the party-list
How do we determine the number of party list seats in the House of Reps?
(# of District Reps / 0.80) x 0.20 = # of party list reps
There are presently 208 legislative districts, according to the Veterans Federation Case
The 5 major political parties are now entitled to participate in the party list system
Parties receiving at least 2% of the total votes cast for the party-list system shall be entitled to one seat
each
No party shall be entitled to more than 3 seats
Currently, there are 260 seats. So 20 % of 260 is 52 seats. But this is only a ceiling.
A list with 5 names should be submitted to COMELEC as to who will represent the party in the Congress.
Ranking in the list submitted determines who shall represent party or organization.
Incumbency / Surname
Pre-Proclamation Controversies
Definition
1.
A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the
board of canvassers which may be raised by any candidate or by any registered political party or coalition of
political parties before the board or directly with the COMELEC.
1.
It would also refer to any matter raised under Sections 233, 234, 235, and 236 of the Omnibus Election
Code in relation to the preparation, transmission, receipt, custody, and appreciation of the election returns.
(Board of canvassers have original jurisdiction while COMELEC have appellate jurisdiction)
1.
2.
3.
4.
C. Those that can be filed with COMELEC directly are the ff:
Issue involves the illegal composition or proceedings of the board of canvassers, as when a majority or all
of the members do not hold legal appointments or are in fact usurpers
Issue involves the correction of manifest errors in the tabulation or tallying
Recount
There can be a recount under the grounds of 234-236. The returns involved will affect the results and the
integrity of the ballot box has been preserved
1.
2.
3.
tampered with
copies thereof.
The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously
manufactured, or not authentic.
4.
When substitute or fraudulent returns in controverted polling places were canvassed, the results of which
materially affected the standing of the aggrieved candidate/s.
Procedure
A. Contested composition or proceedings of the board (under RA 7166)
It may be initiated in the board or directly with COMELEC.
B. Contested election returns (under RA 7166)
Matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns,
and certificate of canvass, should be brought in the first instance before the board of canvassers only.
Summary nature of pre-proclamation controversy
1.
2.
It suspends the running of the period within which to file an election protest or quo warranto proceedings.
When not allowed
Pre-proclamation cases on matters relating to the preparation, transmission, receipt, custody and
appreciation of the election returns or the certificates of canvass NOT allowed in elections for: (under RA
7166)
President
Vice-President
Senator
BUT: The appropriate canvassing body motu propio or upon written complaint of an interested person can
correct manifest errors in the certificate of canvass or election returns before it.
BUT: Questions affecting the composition or proceedings of the board of canvassers may be initiated in the
board or directly with COMELEC.
All pre-proclamation cases pending before the COMELEC shall be deemed terminated at the beginning of
the term of the office involved and the rulings of the boards of canvassers concerned deemed affirmed.
B. This is without prejudice to the filing of a regular election protest by the aggrieved party.
C. HOWEVER: Proceedings MAY CONTINUE if:
1.
The COMELEC determines that the petition is meritorious and issues an order for the proceedings to
continue or
2.
The Supreme Court issues an order for the proceedings to continue in a petition for certiorari.
Election Contest
Original Jurisdiction
COMELEC has ORIGINAL jurisdiction over contests relating to the elections, returns, qualifications of all
elective:
Regional
Provincial
City officials
Appellate Jurisdiction
Any candidate who has duly filed a certificate of candidacy and has been voted for the same office
Purpose of an election contest
The defeated candidate seeks to outs the proclaimed winner and claims the seat.
Final COMELEC Decisions
Provision that decisions, final orders, rulings of the Commission on election contests involving municipal and
barangay offices are final, executory and not appealable:
A. This only applies to questions of FACT. ( Flores v. COMELEC, 184 SCRA 484)
B. It does NOT preclude a special civil action of certiorari. (Galido v. COMELEC, Jan. 18,1991)
Distinctions between Pre-Proclamation Controversy and Election Contest
In some cases, even if the case (involving municipal officials) began with the COMELEC before
proclamation but a proclamation is made before the controversy is resolved, it ceases to be a preproclamation controversy and becomes an election contest cognizable by the RTC.
4)
However, in some cases, the SC has recognized the jurisdiction of COMELEC over municipal cases
even after proclamation. Relate to the provision in RA 7166 allowing pre-proclamation controversy
proceedings to continue even after a proclamation has been made.
A. Covered acts
1.Give, offer or promise money or anything of value
2. Making or offer to make any expenditure, directly or indirectly, or cause an expenditure to be made to any
person, association, corporation, entity or community
3.Soliciting or receiving, directly or indirectly, any expenditure or promise of any office or employment, public
or private
B. Purpose of acts
1. To induce anyone or the public in general to vote for or against any candidate or withhold his vote in the
election or
2. To vote for or against any aspirant for the nomination or choice of a candidate in a convention or similar
selection
C. Under RA 6646 (Prosecution of vote-buying/selling)
1. Presentation of a complaint supported by affidavits of complaining witnesses attesting to the offer or
promise by or the voters acceptance of money or other consideration from the relatives, leaders or
sympathizers of a candidate is sufficient basis for an investigation by the COMELEC,directly or through its
duly authorized legal officers.
2. Disputable presumption of conspiracy:
Proof that at least one voter in different precincts representing at least 20% of the total precincts in any
municipality, city or province has been offered, promised or given money, valuable consideration or other
expenditure by a candidate relatives, leaders and/or sympathizsrs for the purpose of promoting the election
of such candidate.
3. Disputable presumption of involvement
Proof affects at least 20% of the precincts of the municipality, city or province to which the public office
aspired for by the favored candidate relates. This will constitute a disputable presumption of the involvement
of such candidate and of his principal campaign managers in each of the municipalities concerned in the
conspiracy
Coercion of a subordinate
2.
Appointment of new employees, creation of new position, promotion or giving salary increases:
A. Who can be held liable: Any head/official/appointing officer of a government office, agency or
instrumentality, whether national or local, including GOCCs.
B. Prohibited acts
1.Appointing or hiring a new employee (provisional, temporary or casual)
2.Creating or filling any new position
3.Promoting/giving an increase in salary, remuneration or privilege to any government official or employee.
C. Period when acts are prohibited
1. 45 days before a regular election
2. 30 days before a special election
D. Exceptions
1.
Upon prior authority of COMELEC if it is satisfied that the position to be filled is essential to the proper
functioning of the office/agency concerned AND that the position is not filled in a manner that may influence
the election
2.
In case of urgent need, a new employee may be appointed. Notice of appointment should be given to
COMELEC within 3 days from appointment.
A. Who can be held liable: Any public official or employee including barangay officials and those of
GOCCs/subsidiaries
B. Prohibited acts:
The release, disbursement or expenditure of public funds for any and other kinds
of public works
3.
payment for the usual cooperation for working drawings, specfications and other procedures preparatory
to actual construction including the purchase of material and equipment and incidental expenses for wages.
4.
Emergency work necessitated by the occurrence of a public calamity but such work shall be limited to the
restoration of the damaged facility.
5.
Ongoing public work projects commenced before the campaign period or similar projects under foreign
agreements.
A. General rule: public official CANNOT suspend any of the officers enumerated above during the election
period.
B. Exceptions
1.
2.
Suspension is for the purpose of applying the Anti-Graft and Corrupt Practices Act
Voting more than once in the same election/voting when not a registered voter
Voting in substitution for another with or without the latters knowledge and/or consent etc.
Causing the printing of official ballots and election returns by printing establishments not on contract with
COMELEC and printing establishments which undertakes unauthorized printing
2.
Tampering, increasing or decreasing the votes received by a candidate or refusing after proper verification
and hearing to credit the correct votes or deduct the tampered votes (committed by a member of the board
of election inspectors)
3.
Refusing to issue the certificate of voters to the duly accredited watchers (committed by a member of the
BEI)
4.
5.
6.
A person who has been declared a nuisance candidate or is otherwise disqualified who continues to
misrepresent himself as a candidate (Ex. by continuing to campaign) and any public officer or private
individual who knowingly induces or abets such misrepresentation by commission or omission.
7.
If the chairman of the BEI fails to affix his signature at the back of the official ballot, in the presence of the
voter, before delivering the ballot to the voter. (under RA 7166)
1.
2.
Election offenses shall prescribe after 5 years from the date of their commission
If the discovery of the offense is made in an election contest proceeding, the period of prescription shall
commence on the date on which the judgment in such proceedings becomes final and executory
Jurisdiction of courts
1.
RTC has exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of
the Code.
2.