Facts:

Romeo Lonzanida was elected and had served as municipal mayor of San Antonio,
Zambales in terms 1989-1992, 1992-1995 and 1995-1998. However, his proclamation
relative to the 1995 election was protested and was eventually declared by the RTC and
then by COMELEC null and void on the ground of failure of elections.

On February 27, 1998, or about three months before the May 1998 elections, Lonzanida
vacated the mayoralty post in light of a COMELEC order and writ of execution it issued.
Juan Alvez, Lonzanida’s opponent assumed office for the remainder of the term.

In the May 1998 elections, Lonzanida again filed his certificate of candidacy. His
opponent, Efren Muli, filed a petition for disqualification on the ground that Lonzanida
had already served three consecutive terms in the same post. On May 13, 1998,
petitioner Lonzanida was proclaimed winner.

The COMELEC granted the petition for disqualification.

Petitioner Lonzanida challenged the validity of the COMELEC resolution maintaining that
he was duly elected mayor for only two consecutive terms and that his assumption of
office in 1995 cannot be counted as service of a term for the purpose of applying the
three term limit for local government officials, because he was not the duly elected
mayor of San Antonio in the May 1995 elections. He also argued that the COMELEC
ceased to have jurisdiction over the petition for disqualification after he was proclaimed
winner in the 1998 mayoral elections as the proper remedy is a petition for quo
warranto with the appropriate regional trial court under Rule 36 of the COMELEC Rules
of Procedure.

The private respondent maintained that the petitioner’s assumption of office in 1995
should be considered as service of one full term because he discharged the duties of
mayor for almost three years until March 1, 1998 or barely a few months before the next
mayoral elections.

Issues:

1. WON petitioner’s assumption of office as mayor of San Antonio Zambales from May
1995 to 1998 may be considered as service of one full term for the purpose of applying
the three-term limit for elective local government officials.

2. WON COMELEC ceased to have jurisdiction over the petition for disqualification after
petitioner was proclaimed winner.

Held:
1. NO. Two conditions for the application of the disqualification must concur: 1) that the
official concerned has been elected for three consecutive terms in the same local
government post and 2) that he has fully served three consecutive terms.

“To recapitulate, the term limit for elective local officials must be taken to refer to the
right to be elected as well as the right to serve in the same elective position.
Consequently, it is not enough that an individual has served three consecutive terms in
an elective local office, he must also have been elected to the same position for the same
number of times before the disqualification can apply.”
The two requisites for the application of the three term rule are absent. First, the
petitioner cannot be considered as having been duly elected to the post in the May 1995
elections, and second, the petitioner did not fully serve the 1995-1998 mayoral term by
reason of involuntary relinquishment of office.

After a re-appreciation and revision of the contested ballots the COMELEC itself declared
by final judgment that petitioner Lonzanida lost in the May 1995 mayoral elections and
his previous proclamation as winner was declared null and void. His assumption of
office as mayor cannot be deemed to have been by reason of a valid election but by
reason of a void proclamation. It has been repeatedly held by this court that a
proclamation subsequently declared void is no proclamation at all and while a
proclaimed candidate may assume office on the strength of the proclamation of the
Board of Canvassers he is only a presumptive winner who assumes office subject to the
final outcome of the election protest. Lonzanida did not serve a term as mayor of San
Antonio, Zambales from May 1995 to March 1998 because he was not duly elected to
the post; he merely assumed office as presumptive winner, which presumption was later
overturned by the COMELEC when it decided with finality that Lonzanida lost in the
May 1995 mayoral elections.

Second, the petitioner cannot be deemed to have served the May 1995 to 1998 term
because he was ordered to vacate his post before the expiration of the term. The
respondents’ contention that the petitioner should be deemed to have served one full
term from May 1995-1998 because he served the greater portion of that term has no
legal basis to support it; it disregards the second requisite for the application of the
disqualification, i.e., that he has fully served three consecutive terms. The second
sentence of the constitutional provision under scrutiny states, “Voluntary renunciation of
office for any length of time shall not be considered as an interruption in the continuity
of service for the full term for which he was elected. “The clear intent of the framers of
the constitution to bar any attempt to circumvent the three-term limit by a voluntary
renunciation of office and at the same time respect the people’s choice and grant their
elected official full service of a term is evident in this provision. Voluntary renunciation
of a term does not cancel the renounced term in the computation of the three term limit;
conversely, involuntary severance from office for any length of time short of the full term
provided by law amounts to an interruption of continuity of service. The petitioner
vacated his post a few months before the next mayoral elections, not by voluntary
renunciation but in compliance with the legal process of writ of execution issued by the
COMELEC to that effect. Such involuntary severance from office is an interruption of
continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral
term.

In sum, the petitioner was not the duly elected mayor and that he did not hold office for
the full term; hence, his assumption of office from May 1995 to March 1998 cannot be
counted as a term for purposes of computing the three term limit. The Resolution of the
COMELEC finding him disqualified on this ground to run in the May 1998 mayoral
elections should therefore be set aside.

2. NO. It was held in the case of Sunga vs. COMELEC that the proclamation or the
assumption of office of a candidate against whom a petition for disqualification is
pending before the COMELEC does not divest the COMELEC of jurisdiction to continue
hearing the case and to resolve it on the merits.

Section 6 of RA 6646 specifically mandates that:

“Sec. 6. Effects 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 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.”
The clear legislative intent is that the COMELEC should continue the trial and hearing of
the disqualification case to its conclusion i.e., until judgment is rendered. The outright
dismissal of the petition for disqualification filed before the election but which remained
unresolved after the proclamation of the candidate sought to be disqualified will unduly
reward the said candidate and may encourage him to employ delaying tactics to impede
the resolution of the petition until after he has been proclaimed.

It must be emphasized that the purpose of a disqualification proceeding is to prevent the

candidate from running or, if elected, from serving, or to prosecute him for violation of
the election laws. Obviously, the fact that a candidate has been proclaimed elected does
not signify that his disqualification is deemed condoned and may no longer be the
subject of a separate investigation.” (Lonzanida vs. Comelec, G.R. No. 135150. July 28,
1999)

ELECTION LAWS QUESTIONS AND ANSWERS

Q — Rev. Nardo B. Cayat filed his certificate of candidacy for Mayor of Buguias,
Benguet for the May 2004 elections. Thomas Palileng, another candidate for Mayor filed
a petition to annul/nullify his certificate of candidacy and/or to disqualify on the ground
that Cayat has been convicted of a crime involving moral turpitude. Twenty three days
before the election, Cayat’s disqualification became final and executory. He, however
won and was proclaimed and assumed office. Palileng filed an electoral protest
contending that Cayat was ineligible to run for mayor. The Vice-Mayor intervened and
contended that he should succeed Cayat in case he is disqualified because Palileng was
only a second placer, hence, he cannot be declared as the winner. Is the contention of
the Vice-Mayor correct? Why?

ANS: No, because there was no second placer, hence, Palileng should be proclaimed as
the winner on the following grounds:

First, the COMELEC’s Resolution of 12 April 2004 cancelling Cayat’s certificate of

candidacy due to disqualification became final and executory on 17 April 2004 when
Cayat failed to pay the prescribed filing fee. Thus, Palileng was the only candidate for
Mayor of Buguias, Benguet in the 10 May 2004 elections. Twenty-three days before the
election day, Cayat was already disqualified by final judgment to run for Mayor in the 10
May 2004 elections. As the only candidate, Palileng was not a second placer. On the
contrary, Palileng was the sole and only placer, second to none. The doctrine on the
rejection of the second placer, which triggers the rule on succession, does not apply in
the present case because Palileng is not a second-placer but the only placer.
Consequently, Palileng’s proclamation as Mayor of Buguias, Benguet is beyond question.

Second, there are specific requirements for the application of the doctrine on the
rejection of the second placer. The doctrine will apply in Bayacsan’s favor, regardless of
his intervention in the present case, if two conditions concur: (1) the decision on Cayat’s
disqualification remained pending on election day, 10 May 2004, resulting in the
presence of two mayoralty candidates for Buguias, Benguet in the elections; and (2) the
decision on Cayat’s disqualification became final only after the elections. (Cayat v.
COMELEC, April 27, 2007).

Q — It was contended that the doctrine of rejection of the second placer laid down in
Labo v. COMELEC should apply. Is the contention correct? Why?

ANS: No. Labo, Jr. v. COMELEC, which enunciates the doctrine on the rejection of the
second placer, does not apply because in Labo there was no final judgment of
disqualification before the elections. The doctrine on the rejection of the second placer
was applied in Labo and a host of other cases because the judgment declaring the
candidate’s disqualification in Labo and the other cases had not become final before the
elections. Labo and other cases applying the doctrine on the rejection of the second
placer have one common essential condition – the disqualification of the candidate had
not become final before the elections. This essential condition does not exist in the
present case. (Cayat v. COMELEC).

Reason in Labo.

In Labo, Labo’s disqualification became final only on 14 May 1992, three days after the 11
May 1992 elections. On election day itself, Labo was still legally a candidate. In the case
of Cayat he was disqualified by final judgment 23 days before the 10 May 2004 lections.
On election day, Cayat was no longer legally a candidate for mayor. In short, Cayat’s
candidacy for Mayor was legally non-existent in the 10 May 2004 elections.

Q— What is the effect if a candidate is disqualified by final judgment? Explain.

ANS: The law expressly declares that a candidate disqualified by final judgment before
an election cannot be voted for, and votes cast for him shall not be counted. This is a
mandatory provision of law. Section 6 of Republic Act No. 6646, The Electoral Reforms
Law of 1987, states:
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 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.

Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when
the disqualification becomes final before the elections, which is the situation covered in
the first sentence of Section 6. The second is when the disqualification becomes final after
the elections, which is the situation covered in the second sentence of Section 6.

The present case falls under the first situation. Section 6 of the Electoral Reforms Law
governing the first situation is categorical: a candidate disqualified by final judgment
before an election cannot be voted for, and votes cast for him shall not be counted. The
Resolution disqualifying Cayat became final on 17 April 2004, way before the 10 May
2004 elections. Therefore, all the 8, 164 votes cast in Cayat’s favor are stray. Cayat was
never a candidate in the 10 May 2004 elections. Palileng’s proclamation is proper
because he was the sole and only candidate, second to none. (Cayat v. COMELEC).

Q— Why is the proclamation of Cayat void? Explain.

ANS: Cayat’s proclamation is void because the decision disqualifying him had already
become final on 17 April 2004. There is no longer any need to ascertain whether there
was actual knowledge by the voters of his disqualification when they casted their votes
on election day because the law mandates that Cayat’s votes “shall not be counted”.
There is no disenfranchisement of the voters. Rather, the voters are deemed by law to
have deliberately voted for a non-candidate, and thus their votes are stray and “shall not
be counted”. (Cayat. v. COMELEC).

Q— Is the intervention of the Vice-Mayor proper? Why?

ANS: No. The petition-in-intervention should be rejected because the doctrine on the
rejection of the second placer does not apply to this case. The doctrine applies only if the
winning candidate’s disqualification has not yet become final and executory before the
election. In this case, the disqualification was final and executory before the election,
hence, there was no second placer. (Cayat v. COMELEC).

Three-term limit; even if “as caretaker”.

Q — Mayor Marino Morales ran for a fourth term despite having served for three (3)
consecutive terms as Mayor of Mabalacat, Pampanga. In answer to a petition to cancel
his certificate of candidacy, he alleged that while he served his second term, he did it as a
“caretaker of the office” or as a “de facto officer” because he was suspended by the
Ombudsman from January 16, 1999 to July 15, 1999 and that his proclamation was
declared void and which became final and executory on August 6, 2001. The COMELEC
declared him disqualified. Before the Supreme Court, he contended that his second term
from July 1, 1999 to June 30, 2001 may not be counted since his proclamation was void.
Is the contention correct? Why?

ANS: No, because his service from July 1, 1999 to June 30, 2001 was for a full term,
hence, the three-term limit rule applies to him. This is especially so that he assumed
office. He served as mayor up to June 30, 2001. He was mayor for the entire period
notwithstanding the decision in the electoral protest case ousting him as mayor. As held
in Ong v. Alegre, G.R. Nos. 162395 and 163354, January 23, 2006, 479 SCRA 473, such
circumstance does not constitute an interruption in serving the full term. In Ong, he
served the full term even as there was a declaration of failure of election.

Section 8, Article X of the Constitution provides that the terms of the office of elected
local officials x x x, shall be three years and no such official shall serve for more than
three consecutive terms. x x x

Section 43(b) of R.A. No. 7160 (the Local Government Code) clearly provides that no
local official shall serve for more than three consecutive terms in the same position.
Morales has been mayor of Mabalacat continuously without any break since July 1, 1995,
hence, he is disqualified. (Rivera III, et al. v. COMELEC, G.R. No. 167591 and Dee v.
COMELEC, et al., G.R. No. 170577, May 6, 2007).

Q— Explain the reason for the maximum term limit.

ANS: The framers of the Constitution wanted to establish some safeguards against the
excessive accumulation of power as a result of consecutive terms.

As held in Latasa v. COMELEC, G.R. No. 154829, December 10, 2003, 417 SCRA 601,
the three-term limit is an exception to the people’s freedom to choose those who will
govern them in order to avoid the evil of a single person accumulating excessive power
over a particular territorial jurisdiction as a result of a prolonged stay in the same office.
(Rivera III, et al. v. COMELEC, et al., G.R. No. 167591 and companion case, May 9,
2007).

Q— Is not the case of Morales similar to the case of Lonzanida v COMELEC? Explain.

ANS: No. In Lonzanida v. COMELEC, while he assumed office, he voluntarily vacated

when there was a declaration of failure of election. He did not fully serve the term,
hence, he was qualified to run for a third term.

The difference between the case at bench and Lonzanida is at once apparent. For one, in
Lonzanida, the result of the mayoralty elections was declared a nullity for the stated
reason of “failure of election”, and, as a consequence thereof, the proclamation of
Lonzanida as mayor-elect was nullified, followed by an order for him to vacate the office
of the mayor. For another, Lonzanida did not fully serve the 1995-1998 mayoral term,
there being an involuntary severance from office as a result of legal processes. In fine,
there was an effective interruption of the continuity of service.

On the other hand, the failure-of-election factor does not obtain in the present case. But
more importantly, here, there was actually no interruption or break in the continuity of
Francis’ service respecting the 1998-2001 term. Unlike Lonzanida, Francis was never
unseated during the term in question; he never ceased discharging his duties and
responsibilities as mayor of San Vicente, Camarines Norte for the entire period covering
the 1998-2001 term.

Instead, Ong v. Alegre applies to Morales. Francis Ong was elected and assumed the
duties of the mayor of San Vicente, Camarines Norte for three consecutive terms. But his
proclamation as mayor in the May 1998 election was declared void. As ruled, his service
for the term 1998 to 2001 is for the full term. Clearly, the three-term limit rule applies to
him. There is no reason why this ruling should not also apply to Morales who is similarly
situated. (Rivera III, et al. v. COMELEC, et al., May 9, 2007).

Q— Morales cited Borja v. COMELEC to apply to him. Is this case applicable? Why?

ANS: No, because with the death of Mayor Cruz, Capco assumed office as mayor by
virtue of the principle of succession, he being the vice-mayor. He was not therefore,
elected even if he served the rest of the term of the mayor, hence, his assumption of the
office of the mayor upon the death of the incumbent mayor may not be regarded as a
term.

Similarly, in Adormeo v. COMELEC, G.R. No. 147927, February 4, 2002, 376 SCRA 90,
it was held that assumption of the office of mayor in a recall election for the remaining
term is not the “term” contemplated under Section 8, Article X of the Constitution and
Section 43(b) of R.A. 7160 (the Local Government Code). There was a “break” in the
service of the mayor. He was a “private citizen” for a time before running for mayor in
the recall elections. (Rivera III, e al. v. COMELEC, et al., G.R. No. 167591, May 9, 2007).

Q — What is the effect if the certificate of candidacy of a candidate is cancelled? Explain.

ANS: 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. (Secs. 6 and 7, RA
6646).
Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a
candidate for an office for which he did not present himself shall be considered as a stray
vote but it shall not invalidate the whole ballot. (Sec. 211, Omnibus Election Code).

Morales can not be considered a candidate in the May 2004 elections. Not being a
candidate, the votes cast for him should not be counted and must be considered stray
votes. (Rivera III, et al. v. COMELEC, G.R. No. 167591, May 9, 2007).

Q — It was contended that since Morales was disqualified, the second placer should be
proclaimed as the winner. Is the contention correct? Why?

ANS: In Labo v. COMELEC, the Court has ruled that a second place candidate cannot
be proclaimed as a substitute winner.

The rule is that, 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.
A minority or defeated candidate cannot be deemed elected to the office.

As a consequence of ineligibility, a permanent vacancy in the contested office has

occurred. This should now be filled by the vice-mayor in accordance with Sec. 44 of the
Local Government Code. (Rivera III, et al. v. COMELEC, et al., G.R. No. 167591, May 9,
2007 citing Labo v. COMELEC, G.R. No. 105111, July 3, 1992, 211 SCRA 297).

Q— What are the requirements which must concur for the three-term limit to apply?

ANS: For the three-term limit to apply, the following two conditions must concur:
1) that the official concerned has been elected for three consecutive terms in the
same local government post; and

2) that he has fully served three consecutive terms. (Lonzanida v. COMELEC, G.R.
No. 133495, September 3, 1998, 295 SCRA 157; Ong v. Alegre, 479 SCRA 473;
Adormeo v. COMELEC, 376 SCRA 90; Rivera III, et al. v. COMELEC, et al., G.R. No.
167591, May 9, 2007).

Effect if there is a tie.

Q— What is the proper procedure to be resorted to in case of a tie? Explain.

ANS: To resolve the tie, there shall be drawing of lots. Whenever it shall appear from
the canvass that two or more candidates have received an equal and highest number of
votes, or in cases where two or more candidates are to be elected for the same position
and two or more candidates received the same number of votes for the last place in the
number to be elected, the board of canvassers, after recording this fact in its minutes,
shall by resolution, upon five days notice to all the tied candidates, hold a special public
meeting at which the board of canvassers shall proceed to the drawing of lots of the
candidates who have tied and shall proclaim as elected the candidates who may favored
by luck, and the candidates so proclaimed shall have the right to assume office in the
same manner as if he had been elected by plurality of votes. The board of canvassers
shall forthwith make a certificate stating the name of the candidate who had been
favored by luck and his proclamation on the basis thereof.

Nothing in this section shall be construed as depriving a candidate of his right to contest
the election. (Sec. 240, BP 881; Tugade v. COMELEC, et al., G.R. No. 171063, March 2,
2007).

Withdrawal of certificate of candidacy.

Q — Hans Roger filed his certificate of candidacy but withdrew the same. He was
substituted by Joy Luna but the COMELEC denied due course to her certificate on the
ground that Hans being under age, he could not have filed a valid certificate of
candidacy. There was, however, no petition to deny Hans certificate of candidacy. Did
the COMELEC act correctly? Why?

ANS: No. The COMELEC acted with grave abuse of discretion amounting to lack or
excess of jurisdiction in declaring that Hans Roger, being under age, could not be
considered to have filed a valid certificate of candidacy and, thus, could not be validly
substituted by Luna. The COMELEC may not, by itself, without the proper proceedings,
deny due course to or cancel a certificate of candidacy filed in due form. (Cipriano v.
COMELEC, G.R. No. 158830, August 10, 2004, 436 SCRA 45). In Sanchez v. Del Rosario,
the Court ruled that the question of eligibility or ineligibility of a candidate for non-age is
beyond the usual and proper cognizance of the COMELEC.

If Hans Roger made a material misrepresentation as to his date of birth or age in his
certificate of candidacy, his eligibility may only be impugned through a verified petition
to deny due course to or cancel such certificate of candidacy under Section 78 of the
Election Code.

In this case, there was no petition to deny due court to or cancel the certificate of
candidacy of Hans Roger. The COMELEC only declared that Hans Roger did not file a
valid certificate of candidacy and, thus, was not a valid candidate in the petition to deny
due course to or cancel Luna’s certificate of candidacy. In effect, the COMELEC, without
the proper proceedings, cancelled Hans Roger’s certificate of candidacy and declared the
substitution of Luna invalid. (Luna v. COMELEC, et al., G.R. No. 165983, April 24,
2007).

Pre-proclamation controversy; extent of power of COMELEC.

Q — What is the extent of the power of the COMELEC in pre-proclamation

controversy? Explain.
ANS: It is a well-established rule in pre-proclamation cases that the Board of Canvassers
is without jurisdiction to go beyond what appears on the face of the election return. The
rationale is that a full reception of evidence aliunde and the meticulous examination of
voluminous election documents would run counter to the summary nature of a pre-
proclamation controversy. However, this rule is not without any exception. In Lee v.
Commission on Elections, it was held that if there is a prima facie showing that the return
is not genuine, several entries having been omitted in the questioned election return, the
doctrine does not apply. The COMELEC is thus not powerless to determine if there is
basis for the exclusion of the questioned returns. (G.R. No. 157004, July 4, 2003, 405
SCRA 303; Ewoc, et al. v. COMELEC, et al., G.R. No. 171882, April 3, 2007).

Handwritings have only one general appearance.

Q — May the COMELEC invalidate certain ballots merely on a finding that the writings
have the same general appearance and pictorial effect? Explain.

ANS: No. General resemblance is not enough to warrant the conclusion that two
writings are by the same hand. (Silverio v. Clamor, 125 Phil. 917 (1967)).

In order to reach the conclusion that two writings are by the same hand there must not
only be present class characteristics but also individual characteristics or ‘dents and
scratches’ in sufficient quantity to exclude the theory of accidental coincidence; to reach
the conclusion that writings are by different hands we may find numerous likeness in class
characteristics but divergences in individual characteristics, or we may find divergences in
both, but the divergence must be something more than mere superficial differences.
(Osborn’s Questioned Documents, p. 244; Delos Reyes v. COMELEC, et al., G.R. No.
170070, February 28, 2007).

Neighborhood rule.

The votes contested in this appeal are all misplaced votes, i.e., votes cast for a candidate
for the wrong or inexistent office. In appreciating such votes, the COMELEC may applied
the “neighborhood rule.” As used by the Court, this nomenclature, loosely based on a
rule of the same name devised by the House of Representatives Electoral Tribunal
(HRET) in Nograles v. Dureza, HRET Case No. 34, June 16, 1989, 1 HRET Rep. 138),
refers to an exception to the rule on appreciation of misplaced votes under Section
211(19) of Batas Pambansa Blg. 881 (Omnibus Election Code) which provides:

Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a
candidate for an office for which he did not present himself shall be considered as a stray
vote but it shall not invalidate the whole ballot.

Section 211(19) is meant to avoid confusion in the minds of the election officials as to the
candidates actually voted for and to stave off any scheming design to identify the vote of
the elector, thus defeating the secrecy of the ballot which is a cardinal feature of our
election laws. (Amurao v. Calangi, 10 Phil. 347 (1958)). Section 211(19) also enforces
Section 195 of the Omnibus Election Code which provides that in preparing the ballot,
each voter must “fill his ballot by writing in the proper place for each office the name of
the individual candidate for whom he desires to vote.”

Excepted from Section 211(19) are ballots with (1) a general misplacement of an entire
series of names intended to be voted for the successive offices appearing in the ballot
(Cordero v. Hon. Moscardon, 217 Phil. 392 (1984)); (2) a single (Farin v. Gonzales, 152
Phil. 598 (1973)) or double (Sarmiento v. Quemado, No. L-18027, 29 June 1962, 5
SCRA 438) misplacement of names where such names were preceded or followed by the
title of the contested office or where the voter wrote after the candidate’s name a
directional symbol indicating the correct office for which the misplaced name was
intended (Moya v. Del Fierro, 69 Phil. 199 (1939)); and (3) a single misplacement of a
name written (a) off-center from the designated space (Mandac v. Samonte, 54 Phil. 706
(1930)), (b) slightly underneath the line for the contested office (Sarmiento v. Quemado,
No. L-18027, 29 June 1962, 5 SCRA 438; Moya v. Del Fierro, 69 Phil. 199 (1939)), (c)
immediately above the title for the contested office ((Villavert v. Fornier, 84 Phil. 756
(1949)), or (d) in the space for an office immediately following that for which the
candidate presented himself. ((Abad v. Co, G.R. No. 167438, 25 July 2006, 496 SCRA
505 and Ferrer v. Commission on Elections, 386 Phil. 431 (2000)). In these instances, the
misplaced votes are nevertheless credited to the candidates for the office for which they
presented themselves because the voters’ intention to so vote is clear from the face of the
ballots. This is in consonance with the settled doctrine that ballots should be appreciated
with liberality to give effect to the voters’ will. (Velasco v. COMELEC, et al., G.R. No.
166931, February 22, 2007).
Marked ballot.

Q— When is a ballot considered as marked? Explain.

ANS: In order for a ballot to be considered marked, in the sense necessary to invalidate
it, it must appear that the voter designedly place some superfluous sign or mark on the
ballot which might serve to identify it thereafter. No ballot should be discarded as a
marked ballot unless its character as such is unmistakable. The distinguishing mark which
the law forbids to be placed on the ballot is that which the elector may have placed with
the intention of facilitating the means of identifying said ballot, for the purpose of
defeating the secrecy of suffrage which the law establishes. Thus, marked ballots are
ballots containing distinguishing marks, the purpose of which is to identify them. (Perman
v. COMELEC, et al. G.R. No. 174010, February 8, 2007, Tinga, J).

Failure of election.

Q— When is there failure of election?

ANS: There are three instances where a failure of elections may be declared, thus:

(a) the election in any polling place has not been held on the date fixed on account of
force majeure, violence, terrorism, fraud or other analogous causes;

(b) the election in any polling place has been suspended before the hour fixed by law for
the closing of the voting on account of force majeure, violence, terrorism, fraud or other
analogous causes; or

(c) after the voting and during the preparation and transmission of the election returns or
in the custody or canvass thereof, such election results in a failure to elect on account of
force majeure, violence, terrorism, fraud or other analogous causes.

In all three instances, there is a resulting failure to elect. In the first instance, the election
has not been held. In the second instance, the election has been suspended. In the third
instance, the preparation and the transmission of the election returns give rise to the
consequent failure to elect; the third instance is interpreted to mean that nobody
emerged as a winner. (Mutilan v. COMELEC, et al., G.R. No. 171248, April 2, 2007).

Note:

None of the three instances is present in this case. In this case, the elections took place. In
fact, private respondent was proclaimed the winner. Petitioner contests the results of the
elections on the grounds of massive disenfranchisement, substitute voting, and farcical
and statistically improbable results. Petitioner alleges that no actual election was
conducted because the voters did not actually vote and the ballots were filled up by non-
registered voters.

Q — May an interlocutory order of a COMELEC Division be the subject of certiorari to

the SC? Explain.

ANS: As a rule, No. The exception is in an unusual case where the petition for certiorari
questioning the interlocutory order of a COMELEC Division was pending before the SC,
the main case which was meanwhile decided by the COMELEC En Banc was likewise
elevated to the Court. Thus, there was a situation where the petition for certiorari
questioning the interlocutory orders of the COMELEC Division and the petition for
certiorari and prohibition assailing the Resolution of the COMELEC En Banc on the main
case were consolidated. The issues raised in the petition for certiorari were also raised in
the main case and therefore there was actually no need to resolve the petition assailing
the interlocutory orders. (Rosal v. COMELEC, G.R. No. 168253 and 172741, March 16,
2007; Soriano, Jr., et al. v. COMELEC, et al., G.R. No. 164496-505, April 2, 2007).

Note:

The general rule is that a decision or an order of a COMELEC Division cannot be

elevated directly to the SupremeCourt through a special civil action for certiorari.
Furthermore, a motion to reconsider a decision, resolution, order, or ruling of a
COMELEC Division shall be elevated to the COMELEC En Banc. However, a motion to
reconsider an interlocutory order of a COMELEC Division shall be resolved by the
division which issued the interlocutory order, except when all the members of the
division decide to refer the matter to the COMELEC En Banc.

Thus, in general, interlocutory orders of a COMELEC Division are not appealable, nor
can they be proper subject of a petition for certiorari. To rule otherwise would not only
delay the disposition of cases but would also unnecessarily clog the Court docket and
unduly burden the Court. This does not mean that the aggrieved party is without
recourse if a COMELEC Division denies the motion for reconsideration. The aggrieved
party can still assign as error the interlocutory order if in the course of the proceedings he
decides to appeal the main case to the COMELEC En Banc. The exception enunciated in
Kho and Repol is when the interlocutory order of a COMELEC Division is a patent nullity
because of absence of jurisdiction to issue the interlocutory order, as where a COMELEC
Division issued a temporary restraining order without a time limit, which is the Repol
case, or where a COMELEC Division admitted an answer with counter-protest which was
filed beyond the reglementary period, which is the Kho case.

The Court has already ruled in Reyes v. RTC of Oriental Mindoro, that “it is the decision,
order or ruling of the COMELEC En Banc that, in accordance with Section 7, Art. IX-A of
the Constitution, may be brought to the Supreme Court on certiorari.” The exception
provided in Kho and Repol is unavailing in this case because unlike in Kho and Repol,
the assailed interlocutory orders of the COMELEC First Division in this case are not a
patent nullity. The assailed orders in this case involve the interpretation of the COMELEC
Rules of Procedure. Neither will the Rosal case apply because in that case the petition for
certiorari questioning the interlocutory orders of the COMELEC Second Division and the
petition for certiorari and prohibition assailing the Resolution of the COMELEC En Banc
on the main case were already consolidated.

The Court also notes that the COMELEC First Division has already issued an Order dated
31 May 2005 dismissing the protests and counter-protests in EPC Nos. 2004-36, 2004-
37, 2004-38, 2004-39, 2004-40, 2004-41, 2004-42, 2004-43, 2004-44, and 2004-45
for failure of the protestants and protestees to pay the required cash deposits. Thus, the
Court have this peculiar situation where the interlocutory order of the COMELEC First
Division is pending before the Court but the main case has already been dismissed by the
COMELEC First Division. This situation is precisely what the Court are trying to avoid by
insisting on strict compliance of the rule that an interlocutory order cannot by itself be
the subject of an appeal or a petition for certiorari.

Misrepresentation in a certificate of candidacy; effect.

Q — When is misrepresentation in a certificate of candidacy material? Explain.

ANS: A misrepresentation in a certificate of candidacy is material when it refers to a

qualification for elective office and affects the candidate’s eligibility. Second, when a
candidate commits a material misrepresentation, he or she may be proceeded against
through a petition to deny due course to or cancel a certificate of candidacy under
Section 78, or through criminal prosecution under Section 262 for violation of Section
74. Third, a misrepresentation of a non-material fact, or a non-material
misrepresentation, is not a ground to deny due course to or cancel a certificate of
candidacy under Section 78. In other words, for a candidate’s certificate of candidacy to
be denied due course or cancelled by the COMELEC, the fact misrepresented must
pertain to a qualification for the office sought by the candidate. (Nelson T. Lluz, et al. v.
COMELEC, et al., G.R. No. 172840, June 7, 2007).

Q — If a candidate misrepresents his profession, is he disqualified? Explain.

ANS: No. No elective office, not even the office of the President of the Republic of the
Philippines, requires a certain profession or occupation as a qualification.

Profession or occupation not being a qualification for elective office, misrepresentation of

such does not constitute a material misrepresentation. Certainly, in a situation where a
candidate misrepresents his or her profession or occupation in the certificate of
candidacy, the candidate may not be disqualified from running for office under Section
78 as his or her certificate of candidacy cannot be denied due course or canceled on such
ground. (Nelson T. Lluz, et al. v. COMELEC, et al., G.R. No. 172840, June 7, 2007).