ELECTION LAW PRE-BAR REVIEW
election of certain national and local officers of the
Atty. Jocelyn Arro-Valencia
2014 BAR Examination Coverage for Election Laws
A. Suffrage
B. Qualification and disqualification of voters
C. Registration of Voters
D. Inclusion and Exclusion Proceedings
E. Political Parties
a. Jurisdiction of the COMELEC over political
parties
b. Registration
F. Candidacy
a. Qualification of candidates
b. Filing of certificates of candidacy
i. Effect of filing
ii. Substitution of candidates
iii. Ministerial duty of COMELEC to
receive certificate
iv. Nuisance candidates
v. Petition to deny due course to or
cancel certificates of candidacy
vi. Effect of disqualification
vii. Withdrawal of candidates
G. Campaign
a. Premature campaigning
b. Prohibited contributions
c. Lawful and prohibited election propaganda
d. Limitations on expenses
e. Statement of contributions and expenses
H. Board of Election Inspectors and Board of Canvassers
a. Composition
b. Powers
I. Remedies and jurisdiction in election law
a. Petition to deny due course to or cancel a
certificate of candidacy
b. Petition for disqualification
c. Petition to declare failure of elections
d. Pre-proclamation controversy
e. Election Protest
f. Quo Warranto
J. Prosecution of election offenses
A. SUFFRAGE
THEORY OF POPULAR SOVEREIGNTY - Section 1,
Article 11 of the Constitution: “The Philippines is a democratic
and republican state. Sovereignty resides in the people and all
government authority emanates from them.” A democratic and
republic government derives all its powers, directly or indirectly,
from the people – who represents the sovereign power of the state.
SUFFRAGE
 Is the right to vote in the election of officers chosen by
the people and in the determination of questions
submitted to the people. (Nachura, Outline Reviewer
in Political Law 2009 edition)
 Suffrage applies not only to elections, but may also
extend to initiatives, referenda, plebiscite and recall.
 Means by which people express their sovereign
judgment. (Nolasco v. Comelec 275 SCRA 763).
ELECTION LAWS REVIEWER
 Right and obligation of qualified citizens to vote in the
government and in the decision of public questions
submitted to the people.
 It is both a right and a privilege. Right being the
expression of the sovereign will of the people.
Privilege because its exercise is conferred only to such
persons or class of persons as are most likely to
exercise it for the purpose of the public good.
 Suffrage as a duty is in the nature of a public trust and
constitutes a voter a representative of the whole
people. This duty requires that the privileged
bestowed should be exercised not exclusively for the
benefit of the citizen or citizens proferring it but in
good faith and with intelligent zeal for the general
benefit and welfare of the State. (Cipriano Abanil v.
Justice of the Peace Court of Bacolod, Negros
Occidental et. al. 70 Phil. 28 (1940)).
Sec. 1, Art. V of 1987 the Constitution provides, “Suffrage
may be exercised by all citizens of the Philippines, not otherwise
disqualified by law, who are at least 18 years of age, and who shall
have resided in the Philippines for at least one year and in the
place wherein they propose to vote, for at least 6 months
immediately preceding the election. No literacy, property, or
other substantive requirements shall be imposed on the exercise of
suffrage.
Suffrage may also be exercised by qualified Filipinos
abroad. Article V, Section 2 of the 1987 Constitution further
provides that, “The Congress shall provide a system for securing
the secrecy and sanctity of the ballot as well as a system for
absentee voting by qualified Filipinos abroad.” Congress enacted
R.A. 9189 “Overseas Absenting Voting Act of 2003” now
amended by the Overseas Absenting Voting Act of 2013.
SCOPE OF SUFFRAGE: FORMS OF POPULAR
INTERVENTION
Sec. 2 (1) of Article IX-C of the Constitution, the
Comelec is vested with the power to “enforce and administer all
laws and regulations relative to the conduct of election, plebiscite,
initiative, referendum and recall”.
1) Election – is the means by which the people
choose, through the use of the ballot, their officials
for definite and fixed periods and to whom they
entrust, for the time being as their representatives,
the exercise of powers of government
(Garchitorena v. Crsecini 39 Phil. 258 (1918)).
In ordinary dialect or understanding, the Court in
Carlos v. Angeles, 346 SCRA 571 (2000) held that
elections refers to the conduct of the poles – listing
of votes, holding of electoral campaign, act of
casting and receiving the ballots from the voters,
counting them, and making the election returns and
proclaiming the candidates. . .it refers to the entire
and complete electoral process.
a. Kinds of Election
1 Regular election – refers to an election participated in by
those who possess the right of suffrage and not disqualified
by law and who are registered voters.
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 2. Special elections – election not regularly held but which
is conducted
 to supply a vacancy in a particular office
before the expiration of the full term for which
the incumbent was elected. Sec. 4 of RA 7166
provides that, “in case a permanent vacancy
shall occur in the Senate or House of
Representative at least one (1) year before the
expiration of the term, the Comelec shall call
and hold a special elections to fill the vacancy
not earlier than 60 days nor longer than 90
days after the occurrence of the vacancy.
 Article VI, Section 9, Constitution provides
that case such vacancy in the Senate, the
special elections shall be held simultaneously
with the next succeeding regular elections.
 Article VII, Sec. 10 of the Constitution, in
case a vacancy occurs in the offices of the
President and Vice-President, a special
election cannot be called if the vacancy occurs
within 18 months before the date of the next
presidential elections.
 In cases were a postponement and failure of
elections are declared by the Comelec in
accordance with Sections 5,6,7 of BP 881).
Lucero v. Comelec 234 SCRA 280 (1994);
Borja v. Comelec 260 SCRA 604 (1996).
In fixing the date for special elections the Comelec
should to see to it that:
1) it should not be later than thirty (30) days after the
cessation of the cause of the postponement or
suspension of the election or the failure to elect;
2) it should be reasonably close to the date of the
election not held, suspended or which resulted in the
failure to elect. (Lucero v. Comelec 234 SCRA 280).
3. Manual Elections – Manual/mechanical casting/voting,
counting, and canvassing stages which involves the following –
a. Use of paper “write-in” ballots during the casting
stage;
b.The “direct reading and manual tallying of votes” in
multiple copies of election returns (ER); and
c. The manual addition of results in Statement of Votes
(SOVs) and the Certificates of Canvass (COCCs)
4. Automated Election System (AES) – a system using
appropriate technology which has been demonstrated in the
voting, counting, consolidating, canvassing, and transmission of
election result, and other electoral process. (Sec. 2, RA 9369, The
Automated Election System Law, As Amended)
2) Plebiscite – an electoral process by which an
initiative on the Constitution is approved or
rejected by the people (Sec. 3 R.A. 6735 “The
Initiative and Referendum Act). Generally
associated with the ratification process. Plebiscite
is required –
a. Section 4, Article XVII of the Constitution,
with reference to the voting to determine
whether the voters in the country are in favor
of or against the ratification of the
Constitution or an amendment thereto and
ELECTION LAWS REVIEWER
b. Sec. 10, Art. X, in connection with the voting
to determine whether the voters in the political
units affected agree to a proposed creation,
division, merger, abolition or boundary change
of a political unit.
Padilla Jr. v. Comelec 214 SCRA 735, the Comelec resolved to
approve the conduct of the plebiscite in the area or units affected
for the proposed Municipality of Tulay-na-Lupa and the remaining
areas of the mother Municipality of Labo, Camarines Norte,
Majority of the electorates in the units affected rejected the
creation of Tulay-na-Lupa.
Petitioner Gov. of Camarines Norte in a Special Civil Action for
Certiorari, seek to set aside the Plebiscite asserting that it was a
complete failure and that the results obtained were invalid and
illegal because the Plebiscite as mandated by Comelec Res. No.
2312 should have been conducted only in the political unit or units
affected (which is the 12 barangays and should not have included
the mother unit of the Municipality of Labo.)
HELD: With the approval and ratification of the 1987
Constitution, more specifically, Art. X, Section 10, the creation,
division, merger, abolition or alteration of the boundaries of any
political unit shall be subject to the approval by a majority of the
votes cast in a Plebiscite in the ‘POLITICAL UNITS
AFFECTED” was held to mean that residents of the political
entity who would be economically dislocated by the separation of
a portion thereof have a right to vote in the said Plebiscite or the
plurality of political units which would participate in the
Plebiscite. The Court reiterated its ruling in Tan v. Comelec
142 SCRA 727 (1986), that “in the conduct of a Plebiscite, it is
imperative that all the constituents of the mother and daughter
units affected shall be included.
Sanidad v. Comelec 181 SCRA 529, the Supreme Court declared
as unconstitutional the restriction imposed by Comelec on media
relative to discussing on air and print the features of the plebiscite
issues in the creation of the autonomous region for the Cordilleras
and held that plebiscite are matters of public concern and
importance and the peoples right to be informed and to be able to
freely and intelligently make a decision would be best served by
access to an unabridged discussion of the issues.
City of Pasig v. Comelec/Municipality of Cainta Province of
Rizal, Sept. 10, 1999, the issue raised was the propriety of the
suspension of the plebiscite proceedings pending the decision of
the boundary dispute between the Municipality of Cainta and the
City of Pasig. The City of Pasig passed an Ordinance creating
barangays Karangalan and Napico. The Municipality of Cainta
moved to suspend or cancel the respective plebiscitedue to the
pending case before the RTC of Antipolo for the settlement of the
boundary dispute and that the said activities await the decision of
the RTC on the matter.
That Comelec suspended the holding of the plebiscite
for the creation of Brgy. Karangalan but rendered the creation of
Napico as moot as the same has already been ratified in the
plebiscite held for the purpose. The SC held that the creation of
Napico cannot be considered as moot and it is most proper that the
plebiscite be declared null and void in view of the pending
boundary dispute between Pasig and Cainta which presents a
prejudicial question and must be decided first before the plebiscite
for the proposed barangays be conducted.
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Jurisdiction over controversies involving Plebiscite Issues -
Ma. Salvacion Buac/Antonio Bautista v. Comelec/Alan Peter
Cayetano and some Intervenors, G.R. No. 155855, January 26,
2004, a petition for certiorari and mandamus was filed by
petitioners Buac and Bautista assailing the October 28, 2002 en
banc resolution of the Comelec which held that it has no
jurisdiction over controversies involving the conduct of plebiscite
and the annulment of its results.
The facts show that in April 1988, a plebiscite was held
in Taguig for the ratification of the Taguig Cityhood Law (RA No.
8487) proposing the conversion of Taguig from a municipality
into a city. Without completing the canvass of 64 other election
returns, the Plebiscite Board of Canvassers (PBOC) declared that
the “NO” votes won and that the people rejected the conversion of
Taguig to a city. The PBOC was however ordered by the Comelec
en banc to reconvene and complete the canvass which the board
did and in due time issued an Order proclaiming that the negative
votes prevailed.
Petitioners filed with the Comelec a petition to annul the results of
the plebiscite with a prayer for revision and recount of the ballots.
Cayetano intervened and moved to dismiss the petition on the
ground of lack of jurisdiction of the Comelec. He claimed that a
plebiscite cannot be the subject of an election protest and that the
jurisdiction to hear a complaint involving the conduct of a
plebiscite is lodged with the RTC.
Comelec 2nd division initially gave due course to the petition
ruling that it has jurisdiction over the case. It treated the petition
as akin to an election protest considering that the same allegations
of fraud and irregularities in the casting and counting of ballots
and preparation of returns are the same grounds for assailing the
results of an election. It then ordered the Taguig ballot boxes to
be brought to its Manila Office and created revision committees to
revise and recount the plebiscite ballots.
Intervenor Cayetano, in an unverified motion, moved for
reconsideration of the Comelec Order insisting that it has no
jurisdiction to hear and decide a petition contesting the results of a
plebiscite.
In a complete turnaround, the Comelec 2nd division issued an
Order granting the Motion for Reconsideration. It dismissed the
petition to annul the results of the plebiscite and ruled that
Comelec has no jurisdiction over said case as it involves an
exercise of QJ powers not contemplated under Section 2(2),
Article IX-C of the Constitution.
On appeal, the Comelec en banc affirmed the ruling of its 2 nd
division. It held that the Comelec cannot use its power to enforce
and administer all laws relative to plebiscites as this power is
purely administrative or executive and not QJ in nature. It
concluded that the jurisdiction over the petition to annul the
Taguig plebiscite results is lodged with the RTC under Section
19(6) of BP 129 which provides that the RTC shall have exclusive
original jurisdiction in cases not within the exclusive jurisdiction
of any court or body exercising judicial or QJ functions. Hence,
the petition before the SC.
The SC held that the key to the case is its nature, which involves
the determination of whether the electorate of Taguig voted in
favor of or against the conversion of the municipality of
Taguig. The invocation of judicial power to settle disputes
involving the conduct of a plebiscite is misplaced. Judicial power
ELECTION LAWS REVIEWER
as defined under Section 1, Article VIII of the Constitution as the
duty of the court of justice to settle actual controversies involving
rights which are legally demandable and enforceable and to
determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government.
This case assailing the regularity of the conduct of the Taguig
plebiscite does not fit the kind of a case calling for the exercise of
judicial power. There is no plaintiff or defendant in the case for it
merely involves the ascertainment of the vote of the electorate on
whether they approve or disapprove the conversion of their
municipality into a highly urbanized city.
In referring to Article IX-C, Section 2(1), the SC said that the said
provision is explicit that Comelec has power to “enforce and
administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum and recall. To enforce
means to cause to take effect or to cause the performance of such
act or acts necessary to bring into actual effect or operation, a plan
or measure which entails all the necessary and incidental power
for it to achieve the holding of honest, orderly, peaceful, free and
credible elections (HOPE FRECRE). The SC was surprised that
for the first time, Comelec yielded its historic jurisdiction over a
motion for reconsideration which was even filed out of time, thus
rendering it without jurisdiction to entertain the same.
INITIATIVE – are lawmaking powers that belong to the people
and have been described as the “people power” features of our
Constitution (Asked in the 2000 BAR). Initiative under RA 6735
is defined as the power of the people to propose amendments to
the Constitution or to propose and enact legislation through an
election called for the purpose.
REFERENDUM – power of the electorate to approve or reject a
piece of legislation through an election called for the purpose.
(Sec. 2©, R.A. 6735).
Section 2, Article XVII of the Constitution provides that
“Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at
least 12% of the total number of registered voters, of which every
legislative district must be represented by at least 3% of the
registered voters therein”.
Section 32, Article VI of the Constitution provides that
“Congress shall, as early as possible, provide for a system of
initiative and referendum and the exceptions therefrom, where the
people can directly propose and enact laws or approve or reject
any act or law or part thereof passed by Congress or local
legislative body after the registration of a petition thereof signed
by at least 10% of the total number of registered voters, of which
every legislative district must be represented by at least 3% of the
registered voters thereof.”
RA 7160 or the Local Government Code of 1991 also provides
for a “local initiative” defined as the “legal process whereby the
registered voters of a local government unit may directly propose,
enact, or amend any ordinance. Sec. 126 thereof provides for a
“local referendum” defined as the “legal process whereby the RV
of the local government units may approve, amend or reject any
ordinance enacted by the sanggunian.”
Classes of Initiative – 1) On the Constitution; 2) On Statutes; 3)
On Local Legislation.Indirect Initiative is exercised by the people
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through a proposition sent to Congress or the local legislative
body for action.
Classes of Referendum – 1) On Statutes; 2) On Local Laws.
Santiago, et. al. v. Comelec, et. al., 270 SCRA 106 (336 SCRA
843), the controversy brought to the Supreme Court by way of a
petition for prohibition under Rule 65 of the Rules of Court is “the
right of the people to directly propose amendments to the
Constitution through the system of Initiative under Section 2 of
Article XVII of the 1987 Constitution”.
Atty. Jesus Delfin filed a petition with the Comelec to amend the
constitution, specifically to lift the term limits of elective officials,
by people’s initiative. Atty. Delfin asked the Comelec for an
order: (1) to fix the time and dates for signature gathering all over
the country (2) to cause the necessary publications of said Order
and the said petition in newspapers of general and local circulation
and (3) instruct the municipal election registrars in all regions in
the Philippines to assist petitioners and volunteers in establishing
signing station at the time and on the dates designated for the
purpose.
The Comelec issued an Order granting the petition. Santiago filed
this special civil action for prohibition raising among other
grounds that RA 6735 does not provide for people’s initiative to
amend the constitution considering that the same is still pending
with the Senate of which she is the author. The petition of Atty.
Delfin was not validly initiated as it failed to comply with the
signature requirement for initiating an initiative. The Comelec
never acquired jurisdiction over the petition as jurisdiction is
acquired only after its filing – the petition being the initiatory
pleading.
The SC gave due course to the Petition on the legal
premise that the Constitution recognizes only two (2) methods of
proposing amendments to the Constitution, viz (1) by Congress
upon a vote of ¾ of all its members and (2) by constitutional
convention.
The SC interpreted Sec. 2 of RA 6735 which provides
that “the power of the people under a system of initiative and
referendum to directly propose, enact, approved or reject, in
whole or in part the Constitution, laws, ordinance or resolutions
passed by any legislative body upon compliance with the
requirements of this Act, is hereby affirmed, recognized and
guaranteed.” It held that the inclusion of the word “constitution”
here is neither germane nor relevant to said action which
exclusively relates to initiative and referendum on national and
local laws, ordinances and resolution. Therefore, the people are
not accorded the power to “directly propose, enact, approved or
reject, in whole or in part the Constitution, through the system of
initiative.
The SC further declared that Comelec cannot validly
promulgate rules and regulations to implement the exercise of the
right of the people to directly propose amendments to the
Constitution through the system of initiative. The power of
Comelec to issue rules and regulations (QJ power) is limited only
to what is provided under –
(a) Section 2 of Article IX-C of the Constitution and
(b) by a law where subordinate legislation is authorized
and which satisfied the “completeness” and the
“sufficient standard” tests.
ELECTION LAWS REVIEWER
Raul Lambino, et. al. vs. Comelec G.R. No. 174153, October
25, 2006 the issue on initiative to propose amendments to the 1987
Constitution was again at issue. FACTS: Raul Lambino of Sigaw
ng Bayan and Erico Aumentado of the Union of Local Authorities
of the Philippines (ULAP) filed a petition for people’s initiative
before the Commission on Elections on August 26, 2006, after
months of gathering signatures all over the country. Lambino
claimed that the petition is backed by 6.3M registered
voters.constituting at least 12% of all registered voters, with each
legislative district represented by at least 3% of the registered
voters. They further claimed that the provincial and city Comelec
officials had already verified the 6.3M signatures
The Comelec denied the petition, reasoning that a lack of enabling
law keeps them from entertaining such petitions. It invoked the
1997 Supreme Court ruling in Santiago vs. Comelec (336 SCRA
843), where it declared RA 6735 inadequate to implement the
initiative clause on proposals to amend the Constitution. The
Comelec ruling prompted Lambino and Aumentado to bring their
case before the Supreme Court on the following issues -
(1) Whether the initiative petition of the Lambino group complied
with the provisions of Section 2, Article XVII of the Constitution.
(2)Whether the Court should revisit its ruling in Santiago vs.
Comelec declaring RA 6735 “incomplete and inadequate or
wanting in essential terms and conditions” to implement the
initiative clause to amend the Constitution.
The Supreme Court upheld the Comelec’s ruling on the petition
for people’s initiative on October 25, 2006 with a close 8-7
vote.As ruled:
 The Lambino Group miserably failed to comply with the
basic requirement of the Constitution for the conductof
people’s initiative. The Constitution require that the
amendment must be “directly proposed by the people
through initiative upon a petition.”
 Lambino’s group failed to include the full text of the
proposed changes in the signature sheets –a fatal
omission, according to the Supreme Court ruling,
because it means a majority of the 6.3M people who
signed the signature sheets could not have known the
nature and effect of the proposed changes. For the
petition to be valid, two essential requisites must be
complied with, namely: (a) the people must author, and
thus sign, the entire proposal; no agent or representative
can sign on their behalf; and (b) as an initiative upon a
petition, the proposed amendments must be embodied in
the petition itself.
 A people’s initiative to change the Constitution applies
only to an amendment of the Constitution and not to its
revision. Only Congress or a constitutional convention
may propose revisions to the Constitution. A people’s
initiative may propose only amendments to the
Constitution.
 The SC declared that “A popular clamor, even one
backed by 6.3M signatures, cannot justify a deviation
from the specific modes prescribed in the Constitution
itself.”
The rationale for the second requisite is that the signature
requirement would be rendered meaningless if the person affixing
his signature has not first seen and understood what it is that he is
Page 4
signing. Further, and more importantly, loose interpretation of the
subscription requirement can pose a significant potential for fraud.
On-compliance with the above mentioned requirement is fatal to
the initiative petition. For sure, the great majority of the 6.3M
people who signed the signature sheets did not see the full text of
the proposed changes before signing, as the proposed amendments
were not stated in the signature sheets. They were not apprised of
the nature and effect of the proposed amendments, among which
are substantial changes as follows:
1) the term limits on members of the legislature will
be lifted and thus member of the Parliament may be
re-elected indefinitely;
2) The Interim Parliament whose membership
comprised of present members of Congress can
decide when to call the parliamentary elections.
Thus, leaving them the absolute discretion to
determine their term limits.
3) That within 45 days from the ratification of
proposed changes, the interim Parliament may
further propose revision or amendments to the
Constitution.
Furthermore, a people’s initiative to change the
Constitution applies only to an amendment to the Constitution and
not revision. Article XVII of the Constitution speaks of three
modes of proposing amendments to the Constitution: a) by direct
congressional action (3/4 votes of all its members), b) through a
constitutional convention, and c) through a people’s initiative.
The first and second modes, as provided in Section 1 of Article
XVII, apply to both amendment and revision, but the 3 rd mode
applies only to amendments. The distinction between the first two
modes and the third was intentional as shown by the deliberations
of the Constitutional Commission.
There can be no dispute that a people’s initiative can only propose
amendments to the Constitution since the Constitution itself limits
initiatives to amendments. There can be no deviation from the
constitutionally prescribed modes of revising the Constitution. A
popular clamor, even one backed by 6.3M signatures, cannot
justify a deviation from the specific modes prescribed in the
Constitution itself. The Lambino’s group proposed changes
constituted not just an amendment but a revision, because of the
change in the form of government from Presidential to
Parliamentary, and the shift from a bicameral to a unicameral
legislature.
DISTINCTION BETWEEN REVISION AND
AMENDMENT. Revision broadly implies a change that alters a
basic principle in the constitution, like altering the principle of
separation of power or the system of checks and balances. There
is also revision if the change alters the substantial entirety of the
Constitution. On the other hand, amendment broadly refers to a
change that adds, reduces, deletes, without altering the basic
principle involved. Revision generally affects several provisions
of the constitution, while amendment generally affects only the
specific provision being amended.
On the second pivotal issue of revisiting the ruling of the Court in
Santiago vs. Comelec, the Court held that an affirmation or
reversal of the same will not change the outcome of the case. The
Court must avoid revisiting a ruling involving the constitutionality
of a statute if the case before the Court can be resolved on some
grounds.
ELECTION LAWS REVIEWER
In the resolution on the motion for reconsideration, the Court
maintaining its 8-7 vote, denied with finality the motions for
reconsideration of its October 25, 2006 decision dismissing the
said petition to amend the 1987 Constitution through a people’s
initiative. . Ten justices however reiterated their earlier opinions
that RA 6735 is sufficient and adequate as an enabling law to
amend the Constitution through a people’s initiative, effectively
abandoning Santiago v. Comelec.
Subic Bay Metropolitan Authority v. Comelec 252 SCRA 492
(1996), an action for certiorari and prohibition was brought to the
SC seeking to nullify the ruling of the Comelec and Resolution
No. 2848 denying petitioner’s plea to stop the holding of a local
initiative and referendum on the proposition to recall Pambayang
Kapasyahan Blg. 10, Serye 1993 of the SB of Morong Bataan.
In this case, the Sangguniang Bayan of Morong, Bataan
on April 1993, passed Pambayang Kapasyahan Blg. 10, Serye
1993, expressing therein its absolute concurrence to join the Subic
Special Economic Zone (SSEZ) as required by Sec. 12 of RA
7227 (Bases Conversion and Development Act of 1992). On
September 5, 1993, the SB submitted the Kapasyahan to the
Office of the President. On May 24, 1993, respondent Garcia, et.
al. filed a petition with the SB of Morong to annul PK Blg. 10,
Serye 1993 and therein proposed for amendments to the said law.
The SB acted upon the petition and promulgated PK Blg. 18,
requesting Congress to amend certain provisions of RA 7227 and
informed respondents that the other matters in the proposed
amendments were already submitted to the Office of the President.
Not satisfied and within 30 days from submission of their petition,
respondent resorted to their power of initiative under the LGC of
1991. On June 18, 1996 Comelec issued Resolution No. 2845
adopting a calendar of activities for local referendum to annul or
repeal Kapasyahan Bldg. 10.
Petitioner SBMA seeks to nullify the Order of Comelec denying
petitioner’s plea to stop the holding of a local initiative and
referendum on the proposition to recall the Kapasyahan as it was
proceeding with a local initiative that proposes an amendment of a
national law. ISSUE:
 whether Comelec committed grave abuse of
discretion in promulgating and implementing
its Res. No. 2842 which govern the conduct
of the referendum proposing to annul or
repeal PK Blg. 10 and
 whether the questioned local initiative covers
a subject within the powers of the people of
Morong to enact (whether such initiative
seeks the amendment of a national law.
In this case, the SC was compelled to distinguish Initiative from
Referendum. To begin with, the process started by Garcia et. al.,
was an Initiative but respondent Comelec made preparations for a
referendum. In the body of the Comelec Resolution No. 2842, the
word“referendum” is repeated at least 27 times, but initiative is
not mentioned at all. The Comelec labeled the exercise as a
referendum, the counting of votes was entrusted to a referendum
committee, the documents were called referendum returns and so
forth. As distinguished, initiative is a process of law making by
the people themselves without the participation and against the
wishes of their elected representatives while referendum consists
merely with the electorate approving or rejecting what has been
Page 5
drawn up or enacted by the legislative body by simply indicating
yes or no in the ballot.
In initiative, there is a need for the Comelec to supervise the
process closely, it’s authority therein extending not only to the
counting and canvassing of votes but also to seeing to it that
the matter or act submitted to the people is in the proper form
and language so it may be easily understood and voted upon
by the electorate. Care in this activity must be exercise that
“no petition embracing more than one subject shall be submitted
to the electorate, although two or more propositions may be
submitted in an initiative. “
As to the second issue, SBMA insists that the creation of the SSEZ
is now a fait accompli for the benefit of the entire nation and
Morong cannot unilaterally withdraw its concurrence or impose
new conditions for such concurrence as this would effectively
render nugatory the creation of the SSEZ. The SC agreed with the
contention of Garcia that the position of SBMA is premature and
conjectural because at this point the resolution is just a proposal. If
the people should reject it during the referendum, then there is
nothing to declare as illegal. A writ of prohibition cannot issue
upon a mere conjecture or possibility as courts may decide only
actual controversies and not hypothetical questions or cases.
3) RECALL – is the termination of official relationship of
a local elective public official for loss of confidence by the people
prior to the end of his term of office (Sec. 69, R.A. 7160 LGC). In
Angobung v. Comelec 269 SCRA 246 (1997), the Supreme Court
ruled that recall is the mode of removal of a public officer by the
people before the end of his term of office which shall be
exercised by the registered voters of a local government unit to
which the local elective official subject of such recall belongs.
The mode of initiating recall against a public elective official is
now limited to a petition commenced only by the registered voters
in the local unit concerned. Section 70 and 71 of RA 7160 is
now amended by RA 9244, otherwise known as An Act
Eliminating the Preparatory Recall Assembly as a Mode of
Instituting Recall of Elective Local Government Officials.
Section 70 of RA 7160 now reads as follows: “The recall of any
elective provincial, city, municipal or barangay official shall be
commenced by a petition of a registered voter in the LGU
concerned and supported by the registered voters in the LGU
concerned during the election in which the local official sought to
be recalled was elected subject to the following percentage
requirements:
 At least 25% in the case of an LGU with a voting
population of not more than 20,000
 At least 20% in the case of LGUs with a voting
population of at least 20,000 but not more than 75,000:
Provided, that in no case shall the required petitioners be
less than 5,000.
 At least 15% in the case of local government units with
a voting population of at least 75,000 but not more than
300,000: Provided however, that in no case shall the
required number of petitioners be less than 15,000; and
 At least 10% in the case of local government units with
a voting population of over 300,000 thousand: Provided
however, that in no case shall the required petitioners be
less than 45,000.
ELECTION LAWS REVIEWER
DATE OF RECALL – Upon the filing of a valid petition for
recall with the appropriate local office of the Comelec, the
Comelec or its duly authorized representative shall set the date of
the election or recall, which shall not be later than 30 days upon
the completion of the procedure outlined in the preceding article,
in the case of the barangay, city or municipal officials, and 45
days in the case of provincial officials.
The official sought to be recalled shall automatically be
considered as duly registered candidate or candidates to the
pertinent positions and like other candidates, shall be entitled to be
voted upon.” (Sec. 71)
EFFECTIVITY OF RECALL – recall shall become effective
only upon the election and proclamation of a successor in the
person of the candidate who received the highest number of votes
cast during the election in recall. Should the official sought to be
recalled receive the highest number of votes, confidence in him is
thereby affirmed and he shall continue in office. (Sec. 72).
LIMITATIONS ON RECALL – an elective official may be
subject of recall elections only ONCE during his term of office
exclusively on the ground of LACK OF CONFIDENCE. The
recall cannot be undertaken within one (1) year from the date of
the official’s assumption of office or within one (1) immediately
preceding a regular election. (Sec. 74)
In Paras v. Comelec 264 SCRA 49, Paras, incumbent punong
brgy sought to bar the recall proceedings against him citing Sec.
74 (B) of RA 7160 that it was barred by the scheduled SK
elections. The SC settled the issue and held that the SK elections
is not considered a “regular local elections” for purposes of recall
under Sec. 74. The term regular local elections is construed as one
referring to an election where the office held by the local elective
official sought to be recalled will be contested and be filled up by
the electorate. It is confined to the regular elections of elective
national and local officials.
REGISTRATION OF VOTERS
Article V Section 1. Suffrage may be exercised by all citizens of
the Philippines NOT otherwise disqualified by law, who are at
least 18 years of age who shall have resided in the Philippines for
at least one (1) year and in the place wherein they propose to vote
for at least six (6) months in the immediately preceding the
elections.No literacy, property or other substantive requirements
shall be imposed on the exercise of suffrage.
Section 2. The Congress shall provide for a system of securing
the secrecy and sanctity of the ballot as well as a system of
absentee voting by qualified Filipinos abroad.
The Congress shall also design a procedure for the
disabled and illiterates to vote without the assistance of other
persons. Until then, they shall be allowed to vote under existing
laws and such rules as the Commission on Elections may
promulgate to protect the secrecy of the ballot.
WHO MAY REGISTER (RA 8189, (An Act Providing for the
General Registration of Voters providing for a System of
Continuing Registration which took effect on June 11, 1996)
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Registration of voters is a means of determining who possess the
qualifications as a voter and regulating the exercise of the right of
suffrage.
Registration does not confer the right to vote; it is but a condition
precedent to the exercise of the right.
How is Registration done – Registration refers to the ACT of
accomplishing and filing of a sworn application for registration
(Voters Registration Record VRR) by a qualified voter before the
election officer of the city or municipality wherein he resides and
including the VRR in the book of RV upon approval by the
Election Registration Board (Sec. 3(a)).
REGISTRATION IS EXTENDED TO: DOMESTIC AND
OVERSEAS VOTERS
FOR DOMESTIC VOTERS – GOVERNED BY RA 8189 The
Voters Registration Act
(Sec. 9 (repealed Sections 116 and 117 of the OEC). Sec. 9
clarified when the residency and age requirements should be
attained) – Salient amendments:
Section 9 – Who may Register – All citizens of the Philippines
NOT otherwise disqualified by law who are at least 18 years of
age, who shall have resided in the Philippines for at least one
(1) year, and in the place wherein they propose to vote, for at
least six (6) months immediately preceding the elections.
Any person who temporarily resides in another city, municipality
or country solely by reason of his occupation, profession,
employment in private or public service, educational activities,
work in the military or naval reservations, within the Philippines,
service in the AFP, or confinement or detention in government
institution in accordance with law, shall NOT be deemed to have
lost his original residence.
Any person who, on the day of registration may not have
reached the required age or period of residence but, who on
the day of election shall possess such qualifications, may
register as a voter.”
Meynard Sabili v. Comelec/Florencio Librea 670 SCRA 670
(2012) – The Court have held that “absence from residence to
pursue studies or practice a profession or registration as a voter
other than the place where one is elected, does not constitute loss
of residence”. Section 117 of the OEC provides that “transfer of
residence to any other place by reason of one’s occupation,
profession employment in private and public service, educational
activities work force, the constabulary or national police force, or
confinement or detention in government institutions in accordance
with law” is not deemed as loss of residence.
The Court ruled that there is nothing wrong in an individual
changing residences so he could run for an elective post, for as
long as he is able to prove with reasonable certainty that he has
effected a change of residence for election law purposes for the
period required by law.
Sec. 11 – Disqualifications: (Section 11 of R.A. 8189 repealed
Sec. 118 of the OEC)
 Any person who has been sentenced by final judgment
to suffer imprisonment for not less than one (1) year.
ELECTION LAWS REVIEWER
 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, sedition, violation of the
anti-subversion and firearms law, or any crime against
national security in accordance with law.
 Insane or incompetent as declared by a competent
authority.
WHEN DISABILITY REMOVED –
 Plenary pardon or amnesty – those sentenced by final
judgment. Article IX-C, Section 5 provides that the
President cannot, without the favorable recommendation
of the Comelec grant pardon, amnesty, parole or
suspension of sentence in cases involving violation of
election laws and violation of election rules and
regulations.
 Expiration of five (5) years after service of sentence
 Official declaration by the proper authority that the
insanity or incompetency no longer exist.
Double Registrants – In all cases where registrants are found to
be registered in two (2) or more districts/cities/municipalities,
the latest registration shall prevail which is deemed to be more
in consonance with the intent of the concerned registered votes.
Accordingly, they shall be allowed to vote only in the
district/city/municipality of their latest registration.
This is distinguished from the policy on double/multiple
registrants found within the same district/city/municipality where
original registration shall prevail over subsequent registrations.
(Comelec Res. 7893, 07 May 2007. See also Sec. 261 (y(5)) of the
OEC (Prohibited Acts) which provides “Any person who, being a
registered voter, registers anew without filing an application for
cancellation of his previous registration” shall be guilty of an
election offense).
Residency Requirement:
Romeo A. Jalosjos v. Comelec Dan Erasmo, Sr. 670 SCRA 572
(2012)
Residence – The Local Government Code requires a candidate
seeking the position of provincial governor to be a resident of the
province for at least (1) year before the election. For purposes of
the election laws, the requirement of residence is synonymous
with domicile, meaning that a person must not only intend to
reside in a particular place but must also have personal presence in
such place coupled with conduct indicative of such intention.
There is no hard and fast rule to determine a candidate’s
compliance with residency requirement since the question of
residence is a question of intention. Still, jurisprudence had laid
down the following guidelines:
(a) every person has a domicile or residence somewhere;
(b) where once established, that domicile remains until he
acquires a new one; and
(c) a person can have but one domicile at a time.
The Comelec concluded that Jalosjos has not come to settle his
domicile in Ipil since he has merely been staying at his brother’s
house. But this circumstance alone cannot support such
conclusion. Indeed, the Court has repeatedly held that a candidate
is not required to have a house in a community to establish his
residence or domicile in a particular place. It is sufficient that he
should live there even if it be in a rented house or in the house of a
friend or relative. To insist that the candidate own the house
Page 7
where he lives would make property a qualification for public
office. What matters is that Jalosjos has proved two things:
actual physical presence in Ipil and an intention of making it his
domicile.
Mitra vs. Commission on Elections, Antonio Gonzales and
Orlando Balbon, Jr. 622 SCRA 744 (July 2010). In this case,
following the conversion of Puerto Princesa (Mitra’s domicile of
origin) from a component city to a highly urbanized city whose
residents can no longer vote for provincial officials, Mitra
abandoned his domicile in Puerto Princesa and acquired a new one
in Aborlan which is within the LGU where he intended to run.
Mitra bought the old Maligaya Feedmill and used the second floor
as his residence.
In considering the residency issue, the dwelling where a
person permanently intends to return to and to remain – his or her
capacity or inclination to decorate the place, or the lack of it, IS
IMMATERIAL. Comelec gravely abused its discretion when it
determined the fitness of a dwellingas a person’s residence
based solely on very personal and subjective assessment
standards when the law is replete with standards that can be
used. Comelec used wrong considerations in arriving at the
conclusion that Mitra’s residence is not the residence
contemplated by law.
Assitio vs. Aguirre 619 SCRA 518 –Residence as used in the law
prescribing the qualifications for suffrage and for elective office,
is DOCTRINALLY SETTLED to mean ‘domicile”, importing not
only an intention to reside in a fixed place but also personal
presence in that place, coupled with conduct indicative of such
intention inferable from a person’s acts, utterances and activities.
Domicile is not easily lost. To successfully effect a transfer, one
must demonstrate: (1) an actual removal or change of domicile;
(2) bonafide intention of abandoning the former place of residence
and establishing a new one; and (3) acts which correspond to said
purpose.Same ruling in earlier case of Romualdez-Marcos v.
Comelec, 248 SCRA 300.Requisites when new domicile is
acquired by choice.
ILLITERATE AND DISABLED VOTERS – Illiterates or
disabled are referred to as a persons who cannot by themselves
prepare an application for registration because of their physical
disability and/or inability to read and write. (Section 3 (e))
Section 14.Procedure for illiterate applicants (those who cannot
read and write) – assisted by the election officer or any member
of an accredited citizens arm. The election officer shall place
such illiterate person under oath, ask him the questions and record
the answers given in order to accomplish the application form in
the presence of the majority of the members of the Board. The
accomplished form shall be subscribed by the applicant in the
presence of the Board by means of thumbmark or some other
customary mark and it shall be subscribed and attested by the
majority of the members of the Board.
Procedure for disabled voters – the application for registration
of a physically disabled person (ex. blind, no hands, senior
citizen, mute) may be prepared by any relative within the 4 th
civil degree of consanguinityor affinity or by the election officer
or any member of an accredited citizen’s arm using the data
supplied by the applicant.
NOTE: Common to both procedures, the fact of illiteracy and
disability shall be so indicated in the application.
ELECTION LAWS REVIEWER
RA 10366 now provides accessible Polling Places for Persons
with Disabilities (PWDS and Senior Citizens and also provides
for, among others, assistance in the accomplishment of registration
forms. The law was in line with the objective of Sec. 29 of the
“Magna Carta for Persons with Disability” (RA No. 7277) which
provides that “polling places should be made accessible to
disabled persons during national and local elections.”
The Comelec shall likewise keep an updated record of
PWDs and SC registered voters, indicating the types of disability
and the assistance they need. (Sec. 6, RA 10366). In designing the
ballot, Comelec shall ensure reasonable accommodation to PWDs
and SC to enable them to accomplish the ballots by themselves
(Sec. 10)
Comelec, in coordination with the National Council on
Disability Affairs (NCDA), the Commission on Human Rights
(CHR), and PWD and Senior Citizens organization shall organize,
design, and implement sensitivity training programs for person
performing electoral duties to familiarize them the needs of the
PWDs and SC. (Sec. 12)
HOW TO REGISTER
Section 8 – System of Continuing Registration of Voters/Creation
of Election Registration Boards
 A qualified voter personally files an application for
registration DAILY with the office of the election
officer during regular office hours. The ERB are
authorized to act on all applications for registration .
LIMITATION: No registration shall be conducted during the
period starting 120 days before a regular elections and 90 days
before a special elections.
Sec. 15 – Election Registration Board – There shall be in each
city and municipality as many as ERB’s as there are election
officers therein.
Composition – Election Officer (EO) as chairman and as
members, the public school official most senior in rank and the
local civil registrar (LCR), or in his absence, the city or municipal
treasurer (MT).
In case of disqualification of the EO, the Commission
shall designate as acting EO who shall serve as chairman of the
ERB. In cases of the non-availability of the LCR or the MT,
Comelec shall designate any other appointive civil service official
from the same locality as substitute.
Restrictions to appointment – No member of the board shall be
related to each other or to any incumbent city or municipal
elective official within the 4th civil degree of consanguinity or
affinity. If in succeeding elections, any of the newly elected city
or municipal officials is related to a member of the board within
the same degree, such member is automatically disqualified to
preserve the integrity of the ERB.
Every registered party and such organizations as may be
authorized by the Comelec shall be entitled to a watcher in every
registration board.
Sec. 17 – Procedure for hearing of applications.
 Date of hearing posted in the city or municipal bulletin
board and EO office at least 1 week before date of
hearing
Page 8
  If objected to, EO shall receive evidence. Physical
presence of applicant in this case is mandatory to
rebut evidence presented in opposition thereto
 If no objection to application, physical appearance not
required and will be duly informed in writing
 Applications for registration shall be heard and
processed on a quarterly basis. Board shall convene on
the 3rd day of Monday of April, July, October and
January of every calendar year except in an election year
to conform with the 120 days prohibitive period before
election day.
Section. 21 – Publication of Action on Application for
Registration
SECTION 12.Change of Residence to another City or
Municipality – Any registered voter who has transferred
residence to another city or municipality may apply with the EO of
his new residence for the transfer of his registration records. The
application for transfer of registration shall be subject to the
requirements of notice and hearing and the approval of the ERB in
accordance with this Act. Upon approval of the application for
transfer, and after notice of such approval to the EO of the former
residence of the voter, said EO shall transmit by registered mail
the voter’s registration record to the EO of the voter’s new
residence.
Section 13.Change of Address in the Same City or
Municipality –Any voter who has changed his address in the
same city or municipality shall immediately notify the EO in
writing. If the change of address involves a change in precinct,
the Board shall transfer his registration record to the precinct book
of voters of his new precinct and notify the voter of his new
precinct. All changes of address shall be reported to the office of
the provincial election supervisor and the Commission in Manila.
Sec. 27 – DEACTIVATION – is a process wherein the
registration record of a voter is removed by the ERB from the
corresponding precinct book of voters and places the same in
an inactive file properly marked and dated in indelible ink and
after entering the cause for deactivation which are as follows:
 Those who are disqualified by virtue of a final
judgment, insane and incompetent persons as officially
declared.
 Any person who failed to vote in the two (2) successive
preceding regular elections as shown by his voting
records.
 Any person whose registration has been ordered
excluded by the court.
 Any person who has lost his Filipino citizenship.
For purposes of the above – the Clerks of Court of the MTC,
MTCC, RTC and SB shall furnish the EO of the city or
municipality concerned at the end of each month a certified list of
persons who are disqualified by virtue of a final judgment, with
their addresses.
For those who lost their citizenship, insanity and
incompetency, the Comelec may request a certified list of such
persons from the government agencies concerned.
Sec. 28 – REACTIVATION – is a process whereby a voter
whose registration records has been deactivated files with the
election officer a sworn application for reactivation of his
registration in the form of an affidavit by stating therein that the
grounds for the deactivation no longer exist.
ELECTION LAWS REVIEWER
PERIOD TO FILE – Any time but not later than 120 days before
a regular election and 90 days before a special election. Upon
approval, the Board, shall retrieve the registration records from the
inactive file and include the same in the corresponding precinct
book of voters.
REQUIREMENT: Local heads or representatives of political
parties shall be properly notified of the approved applications.
Sec.29 – CANCELLATION – is a process wherein the Board
cancels the registration records of those who have died as certified
by the local civil registrar who shall submit each month a certified
list of persons who died during the previous month to the election
officer of the place where the deceased is registered.
PETITION FOR INCLUSION OR EXCLUSION. Remedies
of persons whose application for reactivation, inclusion or
correction has been disapproved or those who intend to exclude a
voter from the list of voters.
Panlaqui v. Comelec 613 SCRA 573 –Voters’
inclusion/exclusion proceedings essentially involve the issue of
whether a voter shall be included in or excluded from the list of
voters based on the qualifications required by law and the facts
presented to show possession of these qualifications. As
distinguished from the procedure in certificate of candidacies
(petition to deny due course or cancel a certificate of candidacy)
on the other hand, the denial/cancellation proceedings involve the
issue of whether there is a false representation of a material fact
(Sec. 78).
Sec. 33 JURISDICTION – The Municipal and Metropolitan
Trial Courts shall have original jurisdiction over all cases of
inclusion and exclusion of voters in their respective cities or
municipalities.(By express provision of Article IX-C, Section 2
(3) of the Constitution, the Comelec shall decide all questions
affecting elections, except the right to vote. This question is a
justiciable issue which finds redress in the judiciary.(Pungutan v.
Comelec 43 SCRA 1 (1972).
Again – in Panlaqui vs. Comelec 613 SCRA 573 - It is not
within the province of the RTC in a voter’s inclusion/exclusion
proceedings to take cognizance of and determine the presence
of a false representation of a material fact. It has no jurisdiction
to try the issues of whether the misrepresentation relates to
material fact and whether there was an intension to deceive the
electorate in terms of one’s qualifications for public office. The
finding that Velasco was not qualified to vote due to lack of
residency requirement does not translate into a finding of a
deliberate attempt to mislead, misinform or hide a fact which
would otherwise render him ineligible.
Canicosa v. Comelec 282 SCRA 512 (1997). The question of
inclusion or exclusion from the list of voters involves the right to
vote which is not within the power and authority of the Comelec
to rule upon. The determination of whether one has the right to
vote is a justiciable issue properly cognizable by our regular
courts.
WHERE TO APPEAL – Decisions of the Municipal or
Metropolitan Trial Courts may be appealed by the aggrieved party
to the Regional Trial Court within five (5) from receipt of notice
thereof. Otherwise, said decision shall become final and
executory. Regional Trial Court shall decide the appeal within ten
(10) days from the time it is received and the Regional Trial Court
Page 9
decision shall immediately become final and executory. No
motion for reconsideration shall be entertained.
Domino v. Comelec 310 546 (1999). Except for the right to
remain in the list of voters or for being excluded thereform for the
particular election in relation to which the proceedings had been
held, a decision in an exclusion proceeding, even if final and
unappealable does not acquire the nature of res judicata.
Thus, a decision in an exclusion proceeding would neither be
conclusive on the voter’s political status, nor bar subsequent
proceedings on his right to be registered as a voter in any
other election.
Sec. 34 – Petition for Inclusion of Voters in the list – WHO
MAY FILE: any person whose application for registration –
 Has been disapproved by the Board; or
 Whose name has been stricken out from the list;
 Whose name was not included in the precinct list of
voters
 Who has been included therein with a wrong or
misspelled name (after the Board disapproves its
application for reinstatement or correction of name) may
file with the court.
PERIOD TO FILE: Any time except 105 days prior to a regular
election or 75 days prior to a special election. The petition should
be supported by a certificate of disapproval of his application and
proof of service of notice upon the Board. MTC shall decide
within fifteen (15) days after its filing.
If the decision is for the inclusion of voters in the permanent list of
voters, the Board shall place the application for registration
previously disapproved in the corresponding BV and indicate in
the application for registration the date of the order of inclusion
and the court which issued the same.
Section 35 – Petition for Exclusion of Voters from the list –
WHO MAY FILE: any registered voter, representative of a
political party or the Election Officer.
PERIOD TO FILE: Any time except 100 days prior to a regular
election or 65 days prior to a special election. Supporting
documents shall be proof of notice to the Board and to the
challenged voter. MTC shall decide within ten (10) days.
If the decision is for exclusion, the Board, shall remove
the voters registration record from the corresponding BV, enter the
order of exclusion therein.
Akbayan v. Comelec March 26, 2001 – The petition for
exclusion is a necessary component to registration since it is a
safety mechanism that gives a measure of protection against flying
voters, non-qualified registrants, and the like. The prohibitive
period, on the other hand, serves as the purpose of securing the
voters substantive right to be included in the list of voters.
The bone of contention of petitioners in this case in praying for a
2-day special registration of new voters for the May 14, 2001
elections which was denied by the Comelec on account of
operational impossibility, undermined their constitutional right to
vote and caused the disenfranchisement of around 4M Filipinos of
voting age who failed to register before the registration deadline
set by the Comelec.
ELECTION LAWS REVIEWER
As ruled, the right of suffrage is not absolute, as in the
enjoyment of all other rights, it is subject to existing substantive
and procedural requirements embodied in our Constitution, statute
and other repositories of law.
Procedural limitation – must undergo the process of registration,
in addition to the maximum requirements set by the Constitution
under Section 1, Article V, the act of registration being an
indispensable precondition and essential to the right of suffrage
and election process. Referring to Section 8 of RA 8189, the law
is explicit that “no registration shall however be conducted
during the period starting 120 days before a regular election
and 90 days before a special election.”
Sec. 35 of RA 8189 on the hand speaks of the prohibitive period
within which to file a sworn petition for the exclusion of voters
from the permanent list of voters. Thus if the special registration
of voters will be conducted, then the prohibitive period for filing
petitions for exclusion must likewise be adjusted to a later date, if
not, then no one can challenge the voters list which is violative of
the principles of due process and would open the registration
process to abuse and seriously compromise the integrity of the
voter’s list and that of the entire election.
ABSENTEE VOTING
Local Absentee Voting – In local absentee voting, public officials
and employees, in the performance of their election duties,
stationed in places other than the place where they are registered
voters of (e.g. members of the PNP, AFP, offices of the Comelec,
school teachers, among others) are allowed to vote in their
respective place of work (Sec. 12, RA 7166).
RA No.10380, otherwise known as the “Local Absentee Voting
for Media Act”, now allow media practitioners to vote on
specified days earlier than Election Day so that that even if on
Election Day, they are assigned to cover election events away
from their place of registration as voters, they would nonetheless
have the opportunity to cast their votes.
Limitation: Those entitled to avail of local absentee voting shall
only be allowed to vote for President, VP, Senators, and Party-List
Representative
Grounds for disapproval of the Application for Local
Absentee Voting
1) The applicant is not a RV or his registration records
have been deactivated.
2) It was filed out of time;
3) It was not sworn to or otherwise not under oath by any
person authorized to administer oath;
4) It was only photocopied/faxed;
5) The Certification portion of the application form is not
duly accomplished.
OVERSEAS ABSENTEE VOTING (OAV) – RA 9189
Absentee Voters Act of 2003
Under RA 9189, Filipino citizens who are overseas workers,
immigrants or permanent residents in other countries may vote in
Philippine national elections when they are away from the country
on the day of the elections; Provided, That in the case of
immigrants or permanent residents, they file a sworn statement
Page 10
that they will resume actual physical permanent residence within
three (3) years from approval of their registration. (Sec. 5(d))
A. Scope of OAV – Definition: Absentee voting refers to
the process by which qualified citizens of the
Philippines abroad exercise their right to vote. (Sec.
3(a))
B. Coverage – All citizens of the Philippines abroad who
are not disqualified by law, at least 18 years of age on
election day, may vote for President, VP, Senators and
Party List Representatives (Sec. 4)
Section 5 – Disqualification:
(a) Those who have lost their Filipino citizenship in
accordance with Philippine laws;
(b) Those who have expressly renounced their
Philippine citizenship and who have pledged
allegiance to a foreign country;
(c) Those who have committed and are convicted by 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 as
disability not having removed by plenary pardon or
amnesty; Provided, however, That any person
disqualified to vote upon the 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;
(d) 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.
a. Such affidavit shall also state that he/she
has not applied for citizenship in another
country.
b. Failure to return shall be 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;
(e) 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.
Macalintal v. Comelec 405 SCRA 614 (2003) – The execution of
the affidavit itself is not the enabling or enfranchising act. The
affidavit required in Section 5(d) is not only proof of the intention
of the immigrant or permanent resident to go back and resume
residency in the Philippines, but more significantly, it serves as an
explicit expression that he had not in fact abandoned his domicile
ELECTION LAWS REVIEWER
of origin. The affidavit is required of immigrants and
permanent residents abroad because by their status in the host
countries, they are presumed to have relinquished their intent
to return to this country; thus, without the affidavit, the
presumption of abandonment of Philippine domicile shall
remain.
3. Casting of Ballots in OAV – The overseas voter
shall cast his ballot within 30 days before election day or 60 days
before election day in the case of seafarers. (Sec. 16.3)
4. Counting of Ballots of OAV – a) Only ballots cast
and mailed ballots received by embassies, consulates and other
foreign establishments before the closing of voting on election day
shall be counted (Sec. 16.7 and Sec. 18.3).
b) The counting shall be conducted on site and shall be
synchronized with the start of counting in the Philippines (Sec.
18.1).
c. The Special Board of Election Inspectors (SBEI)
shall composed of a chairman and two (2) members
 The ambassador, consul general or
career public officer designated by
the Comelec shall be the chairman.
 In the absence of government
officers, two Filipino citizens
qualified to vote under this Act shall
be deputized as members (Sec. 18.3)
 Immediately after the counting, the
SBEI shall transmit by facsimile or
electronic mail the result to the
Comelec and the accredited major
political parties.
5. Canvassing of OAV – A Special Board of
Canvassers (SBOC) composed of a lawyer preferably of
the Comelec as chairman, a senior career officers from
any government agency maintaining a post abroad and,
in the absence of another government officer, a citizen
of the Philippines qualified to vote under this Act, shall
be constituted to canvass the election returns.
The SBOC shall transmit by facsimile,
electronic mail or any other safe and reliable means of
transmission, the certificate of canvass and the
statements of votes to the Comelec and the major
accredited parties.
The certificates of canvass and the statements
of votes shall be the primary basis for the national
canvass. (Sec. 18.4)
Overseas Voting Act of 2013– The President on May 27, 2013
signed into law RA 10590, OAV 2013, amending the Overseas
Voting Act of 2003. With the passage of the law, Filipino
immigrants abroad will no longer need to execute an affidavit
stating that they will return to the Philippines within 3 years before
they are allowed in absentia.
In the landmark case of Nicolas-Lewis vs. Comelec, dual citizens
were refused by Comelec to register and vote in the 2004
Philippine elections, the Supreme Court ruled in 2006 that “there
is no provision in the dual citizenship law, RA 9225 (Citizenship
Retention and Reacquisition Act of 2003 – requiring duals to
actually establish residence and physically stay in the Philippines
first before they can exercise their right to vote.”
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The ruling established a precedent that dual citizens can register
and vote without establishing residence in the Philippines. A
provision in the amended law is inserted to emphasize that dual
citizens who reacquired or retained their Philippine citizenship
under RA 9225 can exercise their right of suffrage.
The amended law also mandates the creation of the Resident
Election Registration Boards (RERB). The specific provision is a
new insertion institutionalizing the overseas voting system by
creating an office within the Comelec exclusively for overseas
voting.
The amendments also empowers the Comelec to attain the most
effective and innovative way of using advance technology in
enfranchising Filipinos overseas without compromising the
secrecy and sanctity of the electoral process.
Loida Nicolas-Lewis, et. al. vs. Comelec G.R. No. 162759,
August 6, 2006. - Petitioners are dual citizens having retained or
reacquired Philippine Citizenship under RA 9225 or the
Citizenship Retention and Reacquisition Act of 2003. As such,
they sought registration and certification as overseas absentee
voters under RA 9189 or the Overseas Absentee Voting Act of
2003, in order to vote in the May 2004 elections. However, the
Philippine embassy in the US advised them that per Comelec letter
dated September 23, 2003, they have yet no residence requirement
as prescribed by the Constitution. Petitioners sought a clarification
from the Comelec which thereafter, expressed the opinion that
dual citizens under RA 9225 cannot exercise the right of
suffrage under the Overseas Absentee Voting Law because
said law was not enacted for them, hence, they are considered
regular voters who have to meet requirements of residency,
among others.
ISSUE: Whether or not petitioners and others who might have
meanwhile retained and/or reacquired Philippine citizenship
pursuant to RA 9225 may vote as absentee voter under RA 9189.
HELD: Section 1 of Article V of the Philippine Constitution
prescribed residency requirement as a general eligibility factor
for the right to vote. On the other hand, Section 2 thereof,
authorizes congress to devise a system wherein an absentee may
vote, implying that a non-resident may, as an exception to the
residency prescription in the preceding section, be allowed to vote.
There is no provision in the dual citizenship law (RA 9225),
requiring “duals” to actually establish residence and physically
stay in the Philippines first before they can exercise their right to
vote. On the contrary, RA 9225, in implicit acknowledgement that
“duals” are most likely non-residents, grants under Section 5(1)
the same right of suffrage as granted to an absentee voter under
RA 9189 which aims to enfranchise as much as possible all
overseas Filipinos, who, save for the residency requirement
exacted of an ordinary conditions, are qualified to vote as ruled in
Makalintal vs. Comelec 405 SCRA 614.
POLITICAL PARTIES, PARTY LIST AND CITIZENS
ARM
Article IX-C, Sec. 1 (5), authorizes the Comelec under
the Constitution to “Register, after sufficient publication,
political parties, organizations, or coalitions which, in addition
ELECTION LAWS REVIEWER
to other requirements, must present their platform or
program of government; and accredit citizens’ arms of the
Commission on Elections.
Section 60 of the OEC/Section 1, Rule 32 of the Comelec Rules
of Procedure provides that any group pursuing the same political
ideals may register with the Comelec. HOW?by filing a verified
petition with its Law Department duly verified by its President
and Secretary-General, or any official duly authorized to do so
under its Constitutions and by-laws.
Before Comelec takes action, the Comelec shall first verify,
through its field offices, the status and capacity of the petitioner
and the veracity of the allegations in the petition. (Sec. 4, Rule
32). After the verification process, the Petition will be published
with the Notice of Hearing.
Once registered the political party is issued a Certificate of
Registration (Sec. 7) (1) acquires juridical personality (2) public is
informed of the party’s existence and ideals (3) it identifies the
party and its officers for purposes of regulation by the
Comelec.For purposes of the electoral process that an organization
need not be a political party.
Limitations on Registration –
 It is a religious sect or denomination or association,
organized for religious purposes. Registration of
religious sects are prohibited for the purpose of the
electoral process which is made in the spirit of
separation of church and state and intended to prevent
churches from wielding political power.Does not
extend to organizations with religious affiliations or to
political parties which derive their principles from
religious beliefs.
 Those who seek to achieve their goals through
unlawful means
 Those which refuse to adhere to the Constitution
 Those which are supported by any foreign government
(Sec. 2(5) Article IX-C)
Cancellation of Registration (Sec. 8) – Upon verified complaint
of any interested party, or motu propio by the Commission,
the registration of any political party, coalition of political parties
or organizations under the party-list system may be cancelled after
due notice and hearing on the following grounds:
 (a) Acceptance by the political party, coalition of
political parties, or organizations or any of its
candidates, of financial contributions from foreign
governments and/or their agencies for activities related
to elections.
 (b) Violation of laws, rules or regulations relating to
elections, plebiscites, referenda or initiative.
 (c) Untruthful statements in its petition for registration
 (d) The said political party, coalition of political parties
or organization has become a religious sect or
denomination, is pursuing its goals thru violence or
other unlawful means, is refusing to adhere to or uphold
the Constitution of the Philippines, or is receiving
support from any foreign government;
 (e) Failure to comply with applicable laws, rules or
regulations of the Commission
 (f) Failure to field official candidates in the last two
preceding elections or failure of their candidates to
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 obtain at least five (5) per centum of the votes cast in the
last two preceding elections.
Jurisdiction of Comelec over Inter-Party Disputes/Power to
Register Political Parties
Samson Alcantara, et. al. vs. Comelec 696 SCRA 547 (2013) –
Under the Constitution, the Comelec is empowered to register
political parties. In the exercise of its power to register political
parties, the Comelec necessarily possesses the power to pass upon
the question of who, among the legitimate officers of the part-list
group, are entitled to exercise the right and privileges granted to a
party-list group under the law. The Comelec’s jurisdiction on this
point is well-settled and is not here disputed.
Luis LokinJr./Teresita Planas v. Comelec/CIBAC 674 SCRA
538 (2012)
In Atienza v. Comelec (612 SCRA 961 (2010), it was expressly
settled that the Comelec possessed the authority to resolve intra-
party disputes as a necessary tributary of its constitutionally
mandated power to enforce election laws and register political
parties. The Court, therein cited Kalaw v. Comelec and Palmares
v. Comelec which uniformly upheld the Comelec’s jurisdiction
over intra-party disputes: As ruled in Kalaw v. Comelec, the
Comelec’s powers and functions under Section 2, Article IX-C of
the Constitution, “include the ascertainment of the identity of the
political party and its legitimate officers responsible for the acts.”
The Court also declared in another case that the Comelec’s power
to register political parties necessarily involved the determination
of the persons who must act on its behalf. Thus, the Comelec may
resolve an intra-party leadership dispute, in a proper case brought
before it, as an incident of its power to register political parties.
Liberal Party vs. Commission on Elections 620 SCRA 393
(May 6, 2010), the SC distinguished REGISTRATION and
ACCREDITATION of a political party. The root of this petition
before the SC is the Nationalista Party-Nationalista Party
Coalition (NP-NPC) petition before the COMELEC for
registration as a coalition and accreditation as the dominant
minority party. While the Comelec En Banc claimed jurisdiction
over the registration of coalitions and has in fact decreed NP-
NPC’s registration, the Comelec however did NOT rule on the
accreditation aspect. The registration of a coalition and the
accreditation of a dominant minority party are two separate
matters that are substantively distinct from each other.
 Section 2(5), Article IX-C and Rule 32 of the
CRPregulate the registration of political parties,
organizations or coalition of political parties.
Accreditation as a dominant party is governed by
Comelec Resolution No. 8752, Section 1 of which states
that the petition for accreditation shall be filed with the
Clerk of the Commission who shall docket it as an SPP
(means Special Proceedings (DM) case. This was the
manner the NP-NPC was docketed.
 Registration of political parties is a special
proceeding assigned to a Division for handling under
the CRP. No similar clear cut rule is available to a
petition for accreditation as a dominant party.
 Registration must first take place before a request for
accreditation can be made. Accreditation is the next
natural step to follow after registration.
When the Comelec En Banc, resolved the registration of the NP-
NPC the case is terminated and ripe for review by the SC via a
ELECTION LAWS REVIEWER
Petition for Certiorari. The issue with respect to accreditation is a
separate issue which is treated in a separate proceedings. As
ruled, a Motion for Reconsideration of a Resolution of the
Comelec En Banc is a prohibited pleading (Sec. 1(d) Rule 13).
The remedy available to a party is a petition for certiorari with the
SC pursuant to Article IX-A, Sec. 7 and Rule 65 of the Rules of
Court.
Laban ng Demokratikong Pilipino, represented by its
Chairman Edgardo J. Angara v. Comelec, et. al. 423 SCRA
665, (the Comelec misapplied equity in this case). LDP informed
the Comelec by way of Manifestation that only the Party
Chairman or his authorized representative may endorse the COC
of the party’s official candidates; that Rep. Butch Aquino was on
“indefinite force leave” and in the meantime Ambassador Enrique
Zaldivar was designated Acting Secretary General.
Aquino in a comment alleged that the Party Chairman
does not have the authority to impose disciplinary sanctions on the
Secretary General and that the Manifestation filed has no basis
praying that Comelec disregards the same. Comelec issued an
order requiring the parties to file verified petition. Pending
resolution, a Certificate of Nomination of Sen. Panfilo Lacson as
LDP candidate for President was filed with the Comelec which
was signed by Rep. Aquino as LDP Secretary General
Comelec issued a Resolution granting the petition with
LEGAL EQUITY for both Petitioner and Oppositor (Angara Wind
and Aquino Wing).
ISSUE: Whether or not Comelec gravely abused its
discretion in issuing the subject Resolution.
RULING – the only issue is simply “Who as between
the Party Chairman and the Secretary General has the
authority to sign certificates of candidacy of the official
candidates of the party. Yes Comelec acted with grave abuse of
discretion. While it has jurisdiction to rule upon questions of
party identity and leadership as an incident to its enforcement
powers.It well within its competence to inquire into which party
officer has authority to sign and endorse certificate of candidacy
of party’s nominees. And to resolve the issue raised, the Comelec
need only to turn to the Party Constitution and election laws. The
Comelec Resolution is INDECISION in the guise of equity. It
chose not to because of its irrational fear of treading, as Aquino
contends, on “unchartered” territories but which have long been
chartered by jurisprudence.
Comelec divided the LDP into wings both having
authority to nominate candidates for every elective position.
Consequently, Comelec planted seeds of confusion among the
electorate who are apt to be confounded by two candidates from a
single political party. This was not only a disservice to the
opposition but to the voting public as well as its Resolution
facilitated, rather than forestalled, the division of the minority
party.
Agapay ng Indigenous Peoples Rights Alliance (A-IPRA) v.
Comelec 696 SCRA 563 – the Supreme Courtreiterated its ruling
in Laban that “the ascertainment of the identity of a political party
and its legitimate officers is a matter that is well within its
authority. The source of this authority is not other than the
fundamental law itself, which vests upon the Comelec the power
and function to enforce and administer all laws and regulations
relative to the conduct of election.”
Damasen vs. Tumamao 613 SCRA 49 (2010) – the discretion of
accepting members to a political party is a right and a privilege, a
purely internal matter, which the Court cannot meddle in. The
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reason behind the right given to a political party to nominate a
replacement where a permanent vacancy occurs in the Sanggunian
is to maintain the party representation as willed by the people in
the election (Sec. 45 (b) of RA 7160 Rule on Succession and as
held in Navarro v. CA 672 SCRA 355 (2010). Damasen was not a
bonafide member. Tumamao was husband of the VM who died).
PARTY LIST
R.A. 7941, otherwise known as An Act Providing for the Election
of Party-List Representatives through the Part-List System. The
party-list system is a mechanism of the proportional representation
in the election of representatives to the HR from national, regional
and sectoral parties or organizations or coalitions thereof,
registered with the Comelec, to enable Filipinos belonging to the
marginalized and underrepresented sectors to contribute
legislation that would benefit them. (Sec. 2)
Party-list representation shall constitute 20% of the total number
of representatives by selection or election from the labor, peasant,
urban poor, indigenous cultural minorities, women, youth and
such other sectors as may be provided by law, except the religious
sector (Sec. 11 and Art. V, Sec. 5(2) 1987 Constitution)
NOTE: The party-list system is composed of three (3) different
groups: (1) national parties or organizations; (2) regional parties or
organizations; and (3) sectoral parties or organization. National
and regional parties or organization are different from sectoral
parties or organizations. The former need not be organized along
sectoral lines and not represent any particular sectoral nor should
they be marginalized and underrepresented.
Atong Paglaum, Inc. vs. Comelec G.R. Nos._______, 02 April
2013, the Supreme Court ruled – “Sec. 5(1), Art. VI of the
Constitution is crystal clear that there shall be “a party-list system
of registered national, regional and sectoral parties or
organization. “The commas after the words national, and regional,
separate national and regional parties from sectoral parties. Had
the framers of the 1987 Constitution intended national and
regional parties to be at the same time sectoral, they would have
stated “national and regional sectoral parties.” They did not,
precisely because it was never their intention to make the party-list
system exclusively sectoral.
What the framers intended, and what they expressly
wrote in Section 5(1), could not be any clearer: the party-list
system is composed of 3-different groups, and the sectoral parties
belong to only one of the 3 groups.”
COCOFED v. Commission on Elections 703 SCRA 165 –
Section 4 and 5 of RA 7941 distinguished. Section 4 of RA
7941, a party-list group already registered “need not register
anew” for purposes of every subsequent election, but only needs to
file a manifestation of intent to participate with the Comelec.
Section 5 on the other hand provides, that an applicant for
registration has to file with the Comelec, not later than 90 days
before the election, a verified petition 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
organization. The applicant is required to submit its constitution,
by-laws, platform of government, list of officers, coalition
agreement and other relevant information as the Comelec may
required. Aside from these, the law requires the publication of the
applicant’s petition in at least 2 national newspapers of general
circulation. The Comelec then resolves the petition, determining
ELECTION LAWS REVIEWER
whether the applicant has complied with all the necessary
requirements.
Lokin, Jr. vs. Commission on elections 621 SCRA 385 (June
22, 2010), the SC ruled that Comelec cannot issue rules and
regulations that provide a ground for the substitution of a party-list
nominee NOT written in R.A.7941.
Sec. 8 provides – “Nomination of Party-List Representatives.
Each registered party, organization or coalition shall submit
to the Comelec not later than 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 in cases
(1) where the 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.
Incumbent sectoral representatives in the HR who are
nominated in the party-list system shall not be considered
resigned.”
CIBAC (Citizens’ Battle Against Corruption) thru its
President Emmanuel Villanueva manifested their intent to
participate in the May 14, 2007 synchronized national and local
elections and submitted their list of 5 nominees (Villanueva, Lokin
(herein petitioner), Cruz-Gonzales, Tugna and Galang). The list
was later published in the newspapers of general circulation.
Before the elections, Villanueva filed a certificate of nomination,
substitution and amendment of the list of nominees whereby it
withdrew the nominations of Lokin, Tugna and Galang and
substituted Borje. The amended list included Villanueva, Cruz-
Gonzales and Borje. Subsequently, Villanueva transmitted to
Comelec the signed petitions of more than 81% if the CIBAC
members in order to confirm the withdrawal of the nominations of
Lokin, Tugna and Galang.
Based on the Party-List Canvas Report, it showed that
CIBAC was entitled to a second seat, hence, the counsel of
CIBAC filed with the Comelec sitting as National Board of
Canvassers, a request to proclaim Lokin as the 2 nd nominee which
was opposed by Villanueva and Cruz-Gonzales. Since Comelec
failed to act on the filing of the certificate of nomination,
substitution and amendment of the list of nominees and the
petitions of the more than 81% of CIBAC members, Villanueva
filed a petition to confirm the said certificate with the Comelec
which was docketed as E.M. No. 07-054. In the meantime,
Comelec as NBC partially proclaimed several party lists as having
won which included Cibac.
The Secretary General of CIBAC informed the Secretary
General of the HR to formally swear Lokin into office but which
was denied in view of the pendency of E.M. No. 07-054 which
approved the withdrawal of the nominations of Lokin et. al. and
the substitution of Borje. Cruz-Gonzales was proclaimed as the
official second nominee.
Lokin brought before the SC via Mandamus to compel
respondent Comelec to proclaim him as the official second
nominee of CIBAC. Also, in another petition, Lokin assailed Sec.
13 of Resolution No. 7804 (Rules and Regulations Governing the
filing of Manifestation of Intent to Participate and submission of
Names of Nominees under the Party-List) and its resolution in
E.M. No. 07-054.
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 The Comelec asserts that a petition for certiorari is an
inappropriate recourse in law due to the proclamation of Cruz-
Gonzales as representative and her assumption of that office; that
Lokin’s proper recourse was an electoral protest filed in the
HRET, therefore, the Court has no jurisdiction over the matter
being raised by Lokin. CIBAC posits that Lokin is guilty of
forum shopping for filing a petition for mandamus and a petition
for certiorari, considering that both petitions ultimately seek to
have him proclaimed as the second nominee of CIBAC.
ISSUES: a) Whether or not the Court has jurisdiction
over the controversy. The Court has jurisdiction. The controversy
involving Lokin is neither an EP nor an action for QW, for it
concerns a very peculiar situation in which Lokin is seeking to be
seated as second nominee of CIBAC. Although an EP may
properly be available to one part-list organization seeking to
unseat another party-list organization to determine which between
the defeated and the winning party-list organizations actually
obtained the majority of the legal votes, Lokin’s case is not one in
which a nominee of a particular party-list organization thereby
wants to unseat another nominee of the same party list. Neither
does an action for QW lie, considering that the case does not
involve the ineligibility and disloyalty of Cruz-Gonzales to the
RP, or some other case of disqualification.
Lokin has correctly brought this special civil action for
certiorari against the Comelec to seek the review of its resolution
in accordance with Section 7 of Article IX-A of the 1987
Constitution, notwithstanding the oath and assumption of office by
Cruz-Gonzales. The constitutional mandate is now implemented
by Rule 64 of the 1997 Rules of Procedure, which provides for the
review of the judgments, final orders or resolution of the Comelec
and the Commission on Audit. As Rule 64 states, the mode of
review is by a petition for certiorari in accordance with Rule 65 to
be filed in the SC within the limited period of 30 days. The Court
has original and exclusive jurisdiction over Lokins certiorari and
for mandamus.
(b) Both actions, certiorari and mandamus did not
violate the rule against forum shopping even if the actions
involved the same parties, because they were based on different
causes of action and the reliefs they sought were different.
(c) Comelec gravely abused its discretion in
promulgating Section 13 of Res. No. 7804 as it expanded the
exceptions under Sec. 8 of RA 7941 Section 8 enumerates only
3 instances in which the party-list organization can substitute
another person in place of the nominee. The enumeration is
exclusive.
Cocofed Case – As early as February 8, 2012, Comelec had
informed, through its Resolution No. 9359, all registered parties
who wished to participate in the May 2013 party-list elections that
they shall file with the Comelec a Manifestation of Intent to
Participate in the party list election together with its list of at least
5 nominees, no later than May 31, 2012. Under Sec. 6(5) of RA
7941, violation of or failure to comply with laws, rules and
regulations relating to elections is a ground for the cancellation of
registration. Cocofed failed to submit a list of 5 nominees
(submitted only 2 nominees) despite ample opportunity to do so
before the elections, which is a violation imputable to the party
under said provision.
Pursuant to Section 8 of RA 7941, the Court cannot
leave to the party the discretion to determine the number of
nominees it would submit. The submission of the list is a statutory
requirement for the registration of party-list groups and the
submission of this list is part of a registered party’s continuing
compliance with the law to maintain its registration.
ELECTION LAWS REVIEWER
A party-list group’s previous registration with the
Comelec confers no vested right to the maintenance of its
registration. In order to maintain a party in a continuing
compliance status, the party must prove not only its continued
possession of the requisite qualifications but, equally, must show
its compliance with the basic requirements of the law.
Alliance for Nationalism and Democracy (ANAD) v. Comelec
705 SCRA 340 (2013) – the Supreme Court reiterated. .
compliance with Section 8 of RA 7941 is essential as the said
provision is a safeguard against arbitrariness. Section 8 rids a
party-list organization of the prerogative to substitute and replace
its nominees, or even to swotch the order of the nominees, after
submission of the list to Comelec.
Abayhon vs. HRET et. al 612 SCRA 375/Palparan Jr. vs.
HRET et. al. – These two cases were consolidated and jointly
resolved as it both concerns the authority of the HRET to pass
upon the eligibilities of the nominees of the party-list groups that
won seats in the lower house of Congress.
Abayhon is the 1st nominee of the Aangat Tayo party-list
that won a seat in the HR during the 2007 elections. Palparan on
the other hand was the 1 st nominee of Bantay party-list. A petition
for QW was filed with HRET against the party-list groups and its
nominee claiming that it was not eligible for a party-list since it
did not represent the marginalized and underrepresented sectors.
Abayhon is the spouse of an incumbent congressional district
representative and likewise does not belong to the UR and
marginalized. Petitioners also claim that Abayhon lost her bid as
party-list rep called An Waray in the immediately preceding
elections of May 10, 2004. Palparan also was alleged to have
committed various human rights violations against the
marginalized sectors (Bantay represents the victims of communist
rebels, CAFGU, security guards and former rebels.)
Abayhon and Palparan postures that the Comelec
already confirmed the status of the party list as a national multi-
sectoral party-list organization, that HRET had no jurisdiction
over the petitioner for QW since the petitioners collaterally
attacked the registration of the party-list organization, a matter that
fell within the jurisdiction of the Comelec. That it was the party-
list that was taking a seat in the HR and not them, being only its
nominees. All questions involving their eligibility as nominee,
were internal concerns of the organization. The HRET dismissed
the petition against party-list but upheld its jurisdiction over
nominees who both filed an MR which was denied. Hence, this
special civil action for certiorari alleging that the HRET gravely
abused its discretion.
The Court made reference to Sec. 5(1) of Article VI
(which identifies who the “members” of that House are. The
HR shall be composed of not more than 250 members, unless
otherwise fixed by law, who shall be elected from legislative
districts apportioned among the provinces, cities, and the
Metropolitan Manila area in accordance with the number of their
respective inhabitants, and on the basis of a uniform and
progressive ration, and those who, as provided by law, shall be
elected through a party-list system of registered national,
regional and sectoral parties or organizations.
Clearly the “members” of the HR are two kinds. . .
1)those who shall be elected from legislative districts and 2)
“those who shall be elected through a party-list system”. From the
point of view of the Constitution, it is the party-list rep who are
“elected” into office, NOT their parties or organizations. These
representatives are elected, however, through that peculiar party-
list system that the Constitution authorized and that Congress by
Page 15
law established where the voters cast their votes for the
organizations or parties to which such party-list reps belong.
Once elected, both the district reps and the party-list
reps are treated in like manners. They have the same deliberative
rights, salaries, and emoluments. They can participate in the
making of laws that will directly benefit their legislative districts
or sectors. They are also subject to the same term limitations of 3
years for a max of 3 consecutive terms. The party list system act
itself recognizes party list nominees as members of the HR (Sec.
2, RA 7941 Declaration of Policy – The State shall promote
proportional representation in the election of reps in the HR
through a party-list system of registered national, regional and
sectoral parties or organizations or coalitions thereof, which will
enable Filipino citizens belonging to the marginalized and UR
sectors x x x x to become members of the HR “.
The Court held that initially, the authority to determine
the qualifications of a party-list nominee belongs to the
organization and to choose five from among the aspiring nominees
to comply with the law. But where an allegation is made that the
party or organization had chosen and allowed a disqualified
nominee to become its party-list rep in the lower house and enjoy
the secured tenure that goes with the position, the resolution of the
dispute is taken out of its hand. Hence, pursuant to Section 17 of
Article VI, the HRET being the sole judge of all contests relating
to, among other things, the qualifications of the members of the
HR, the HRET has jurisdiction to hear and pass upon their
qualifications. The HRET was correct in dismissing the QW and
retaining authority to rule on the qualifications.
Philippine Guardians Brotherhood, Inc. (PGBI) v. Comelec
619 SCRA 585 (DELISTING)– The Comelec may motu propio
OR upon verified complaint of any interested party, remove, or
cancel, after due notice and hearing, the registration of any
national, regional or sectoral party, organization or coalition IF It:
(a) fails to participate in the last 2 preceding elections; OR (b)
fails to obtain at least 2% of the votes casts under the party-
list system in the 2 preceding elections for the constituency in
which it was registered (Section 6 RA 7941). The word “OR” is
a disjunctive term signifying disassociation and independence of
one thing from the other things enumerated. A party list group or
organization that failed to garner 2% in a prior election and
immediately thereafter did not participate in the preceding election
– is something that is not covered by Section 6(8) of RA 7941.
From this perspective, it may be an unintended gap in the law and
as such is a matter for Congress to address. This case abandoned
the Minero vs. Comelec G.R. No. 177548 May 10, 2007.
Philippine Guardians Brotherhood, Inc. v. Comelec 646 SCRA
63 (2011)
Comelec removed PGBT in the list of qualified parties vying
for a seat under the party-list system of representation in
violation of the status quo order of the Supreme Court. An
equally important aspect of a democratic electoral exercise is the
right of free choice of the electorates on who shall govern them –
the party-list system affords them this choice, as it gives the
marginalized and underrepresented sectors the opportunity to
participate in governance. Comelec was cited for contempt by the
Court.
Effect of removal by Comelec of PGBI in the list: As it was the
Comelec itself which prevented PGBI from participating in the 10
May 2010 party-list elections when it deleted PGBI, with grave
abuse of discretion, from the list of accredited party-list groups or
organizations and, thereafter, refused to return it to the list despite
ELECTION LAWS REVIEWER
the Court’s directive, PGBI should, at the very least, be deemed to
have participated in the 10 May 2010
Amores vs. HRET et. al 622 SCRA 593 (2010) – Amores via a
petition for QW with the HRET questioned the legality of the
assumption of office of Emmanuel Joel Villanueva as rep of
CIBAC. It was alleged among other things, that Villanueva
assumed office without a formal proclamation by the Comelec,
disqualified to be a nominee of the youth sector of CIBAC since at
the time of the filing of his certificates of nomination and
acceptance, he was already 31 years old or beyond the age limit of
30 pursuant to Section 9 of RA 7941 and that his change of
affiliation from CIBAC’s youth sector to its overseas Filipino
workers and their families sector was not effected at least 6
months prior to the May 14, 2007 elections so as to be qualified to
represent the new sector under Section 15 of RA 7941.
The HRET dismissed the petition as it found the petition
to be filed beyond the 10 days reglementary period, that the age
qualification for youth sectoral nominees under Section 9 of RA
7941 applied only to those nominated as such during the first 3
congressional terms after the ratification of the Constitution or
until 1998, unless a sectoral party is thereafter registered
exclusively as representing the youth sector, which CIBAC, a
multi sectoral organization, is not. As regards the shift of
affiliation, it was held that Section 15 did not apply as there was
no resultant change in party list affiliation.
ISSUES: (1) whether the petition for QW was dismissible for
having been filed unseasonably; and (2) whether Section 9 and 15
of RA 7941 apply to Villanueva. As to the first issue, the SC
found grave abuse of discretion on the part of HRET. The Court
overlooked the technicality of timeliness and rules on the merits
since the challenge goes into Villanueva’s qualifications, it may be
filed at anytime during his term. Also date of proclamation was
not clear. As to the second and more substantial issue, the Court
made reference to Section 9 of RA 7941 which provides that in
case of a nominee of the youth sector, he must at least be 25
but not more than 30 years of age on the day of the election.
The youth sectoral rep who attains the age of 30 during his
term shall be allowed to continue in office until the expiration
of his term.
The Court did not find any textual support on the
interpretation of HRET that Section 9 applied only to those
nominated during the first 3 congressional terms after the
ratification of the Constitution or until 1998. A cardinal rule in
statutory construction is that when the law is clear and free from
any doubt or ambiguity, there is no room for construction or
interpretation. Only room for application. The distinction is
nowhere found in the law. When the law does not distinguish, we
must not distinguish.
Respecting Section 15 of RA 7941, the Court likewise
found no textual support for HRET’s ratiocination that the
provision did not apply to Villanueva’s shift of affiliation from
CIBAC’s youth sector to its overseas Filipino workers and their
families sector as there was no resultant change in party list
affiliation. Section 15 reads “ Change of Affiliation: Effect –
Any elected party list rep who changes his political party or
sectoral affiliation during his term of office shall forfeit his
seat; Provided, That if he changes his political party or
sectoral affiliation within 6 months before an election, he shall
not be eligible for nomination as party-list rep under his new
party or organization.
The wordings of Section 15 is clear as it covers changes
in both political party and sectoral affiliation and which may occur
within the same party since multi-sectoral party-list org are
Page 16
qualified to participate in the Philippine party-list system. A
nominee who changes his sectoral affiliation within the same party
will only be eligible for nomination under the new sectoral
affiliation if the change has been effected at least 6 months before
the elections. Sec. 9 and 15 apply to Villanueva.
As regards the contention that Villanueva is the 1 st
nominee of CIBAC, whose victory was later upheld, is NO
moment. A party-list org’s ranking of its nominees is a mere
indication of preference , their qualifications according to law are
a different matter.
Ang Ladlad LGBT Party v. Comelec 618 SCRA 32 – Ladlad is
an organization composed of men and women who identify
themselves as lesbians, gays, bisexuals or transgendered
individuals. They applied for registration with Comelec in 2006
and its accreditation was denied on the ground that the
organization had no substantial membership. Ladlad in 2009
again filed a petition for registration which was dismissed by
Comelec on moral grounds (Bible and Koran).
The SC ruled that moral disapproval is not a sufficient
governmental interest to justify exclusion of homosexuals from
participation to the party list system. The Constitution provides in
Sec. 5, Art. III that “No law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof.”
At bottom, what our non-establishment clause calls for is
“government neutrality in religious matters.” Clearly,
“governmental reliance on religious justification is inconsistent
with this policy of neutrality.” Hence, the Court finds that it was
grave violation of the non-establishment clause for the Comelec to
utilize the Bible and the Koran to justify the exclusion of ang
Ladlad.
In sum, the crucial element is not whether a sector is
specifically enumerated, but whether a particular organization
complies with the requirements of the Constitution and RA 7941.
The SC found that Ladlad has sufficiently demonstrated its
compliance with the legal requirements for accreditation.
Veterans Federation Party v. Comelec 342 SCRA 244, the SC
provided for the four unique parameters of the Filipino Party-list
System which are as follows –
 The 20% allocation – the combined number of all party-
list congressmen shall not exceed 20% of the total
membership of the HR, including those under the party-
list;
 The 2% threshold – only those parties garnering a
minimum of 2% of the total valid votes cast for the
party-list system are “qualified” to have a seat in the
HR;
 The 3-seat limit – each qualified party, regardless of the
number of votes it actually obtained, is entitled to a
maximum three seats, that is, one qualifying and two
additional seats;
 The proportional representation – the additional seats
which a qualified party is entitled to shall be computed
“in proportion to their total number of votes..
In this case, following the May11, 1998 national elections
which is the first election for party-list representation, the
Comelec en banc proclaimed 14 parties and organizations which
had obtained at least 2% of the total number of votes cast for the
party-list system which constitute a total of 25 nominees short of
the 52 party-list representatives who should actually sit in the
house. The PAG-ASA files with the Comelec a Petition to
proclaim the full number of party-list representative provided by
ELECTION LAWS REVIEWER
the Constitution. They alleged that the filling up of the 20%
membership of party list representative in the House, as provided
under the Constitution, was mandatory. Nine other party list
organizations filed their respective motions to intervene seeking
the same relief as that sought by PAG-ASA on substantially the
same grounds.
The Comelec, contrary to its rules and regulations governing
the said elections, instead proclaimed the other 38 party-list
organization notwithstanding its not having garnered the required
2% votes. RULING: Sec. 5(2) of Article VI which states that the
sectoral representation shall constitute the 20% is not “mandatory”
as it merely provides a ceiling for party-list in congress. And,
obtaining absolute proportional representation is restricted by the
3-seat per party limit to a maximum of two additional slots.
Comelec was held to have abused its discretion in disregarding an
act of Congress.
The 8-point guidelines for screening party-list participants
In Bagong Bayani Labor Party v. Comelec 359 SCRA
698 (2001) (also reiterated the ruling in Veterans), at issue is
the Omnibus Resolution of the Comelec which approved the
participation of 154 organizations and parties and which the SC
remanded to the Comelec for the latter to determine evidentiary
hearings, whether the 154 parties and organizations allowed to
participate in the party-list elections complied with the
requirements of the law. The SC ruled that the party-list
organizations or parties must factually and truly represent the
marginalized and underrepresented constituencies mentioned in
Section 5 of RA 7941 and the persons nominated by the party-list
candidate-organization must be “Filipino citizens belonging to the
marginalized and underrepresented sectors, organizations and
parties.”
In remanding the case to Comelec the SC laid down the
following guidelines –
 First, the PP, sector or organization must represent
the marginalized and underrepresented groups
identified in Section 5 of RA 7941. In other words, it
must show – through the Constitution, articles of
incorporation, by-laws, history, platform of
government and track record – that it represents and
seeks to uplift marginalized and underrepresented
sectors.
 Second, while major political parties are expressly
allowed by RA 7941 and the Constitution to
participate, they must comply with the declared
statutory policy enabling Filipino citizens
belonging to the M and U to be elected to the HR.
 Third, religious sector may not be represented in the
party-list system. In view of the objections directed
against the registration of Ang Buhay Hayaang
Humabong, which is allegedly a religious group, the
Court notes the express constitutional provision that
the religious sector may not be represented in the
party-list system. Furthermore, the Constitution
provides that “religious denominations and sects shall
not be registered.” The prohibition was explained by
a member of the Constitutional Commission in this
wise “The prohibition is on any religious organization
registering as a political party. I do not see any
prohibition here against a priest running as a
candidate. This is not prohibited here; it is the
registration of a religious sect as a political party.”
Page 17

 Fourth, it must not be disqualified under the
ground enumerated under Section 6 of RA 7941
(not a religious sect or denomination or association
organized for religious purposes, advocates violence
or unlawful means to seek its goal; a foreign party or
organization; receives support from any foreign
government, fails to comply with laws rules or
regulations relating to elections, declared untruthful
statement in its petition, it has ceased to exist for at
least one (1) year, it fails to participate in the last 2
preceding elections or failed 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
was registered)
 Fifth, the party or organization must not be an
adjunct of, or a project organized or an entity
funded or assisted by the government (referring to
MAD of Richard Gomez). It must be independent of
the government. The participants of the government or
it officials in the affairs of a party-list candidate is not
only illegal and unfair to other parties, but also
deleterious to the objective of the law; to enable
citizens belonging to marginalized and
underrepresented sectors and organizations to be
elected to the House of Representatives.
 Sixth, the party must not only comply with the
requirements of the law, its nominees must likewise
do so.Section 9 of RA 7941 reads – “qualifications of
Party-List Nominees – No person shall be nominated
as party-list representative unless he is a natural born
citizen of the Philippines, a RV, a resident of the
Philippines for a period of not less than 1 year
immediately preceding the day of the election, able to
read and write, a bona-fide member of the party or
organization which he seeks to represent for at least
90 days preceding the day of the elections and is at
least 25 years of age on the day of the election.
 Seventh and Eight not only the candidate party
must represent the M and U sectors, so also must
its nominees. It must likewise be able to contribute to
the formulation and enactment of appropriate
legislation that will benefit the nation as a whole.
AKLAT (Assosasyon Para sa Kaunlaran Ng Lipunan at
Adhikain Para sa Tao, Inc.) vs. Comelec, G.R. No. 162203, 14
April 2004, came up with a ruling on the “Window-Dressing” of
party-list participant. In this case, Comelec found that
significantly, Aklat and A.K.L.A.T. have substantially the same
incorporators. In fact 4 of Aklat’s 6 incorporators are also
incorporators of A.K.L.A.T.. This substantial similarity is hard to
ignore and bolsters the conclusion that the supposed re-
organization undertaken by Aklat is plain window-dressing as it
has not really changed its character as a business interest of
persons in the book publishing industry.
The Court observed that Aklat’s articles of incorporation
and document entitled The Facts About Aklat which were attached
to its petition for re-qualification contain general averments that it
supposedly represents marginalized groups such as the youth,
indigenous communities, urban poor and farmers/fisherfolks.
These general statements do not measure up to the first guideline
set by the Bagon Bayani case for screening party-list participants.
ELECTION LAWS REVIEWER
Sec. 5 of RA 7941 provides that “it must show – through its
constitution, articles of incorporation, bylaws, history, platform of
government and track record – that it represents and seeks to uplift
marginalized and underrepresented sectors. Verily, majority of its
membership should belong to the marginalized and
underrepresented.
Bantay Republic Act or BA-RA 7941 vs. G.R. No. 177271,
May 4, 2007, 523 SCRA 1 - Petitioners reacting on an emerging
public perception that the individuals behind the party-list groups
do not, as they should, actually represent the poor and
marginalized sectors. Petitioners, wrote a letter to the Comelec
requesting that the complete list of the nominees of all parties who
have been accredited pursuant to Comelec Resolution No. 7804
prescribing rules and regulations to govern the filing of
manifestation of intent to participate and submission of names of
nominees under the party-list system of representation in
connection with the May 14, 2007 elections be published. The
Comelec vehemently did not accede to the request of the
petitioners, it based its refusal to disclose the names of the
nominees of subject party-list groups on Section 7 of RA 7941
(more specifically the last sentence which states: “the names of the
party-list nominees shall not be shown on the certified list.”.
The Comelec believe that the party list elections must not be
personality oriented. Abalos said under RA 7941, the people are
to vote for sectoral parties, organizations, or coalitions not for
their nominees.
ISSUE: whether or not the disclosure of the names of the
nominees are covered by the Right of Public to information.
HELD: The Comelec has a constitutional duty to disclose and
release the names of the nominees of the party list groups. No
national security or like concerns is involved in the disclosure of
the names of the nominees of the party-list groups in question.
The last sentence of Section 7 is limited in scope and duration,
meaning, that it extends only to the certified list which the same
provision requires to be posted in the polling places on election
day. To stretch the coverage of the prohibition to the absolute
nothing in RA 7941 that prohibits the Comelec from disclosing or
even publishing through mediums other than the “Certified list”
the names of the party-list nominees. The Comelec obviously
misread the limited non-disclosure aspect of the provision as an
absolute bar to public disclosure before the May 2007 elections.
The need for voters to be informed about matters that have a
bearing on their choice. The ideal cannot be achieved in a system
of blind voting, as veritably advocated in the assailed resolution of
the Comelec.
New Formula in the Allocation of Seats for Party-List
Representatives
Banat et. al. vs. Comelec G.R. 178271/12972 21 April 2009 –
After the VFP v. Comelec, G.R. No. 136781, 136786 and 136795,
06 October 2000, ruling of the Supreme Court and the
controversial application of the “Panganiban Formula” by the
Abalos Commission, Party-list participants in Banat et al., filed
separate complaints against the Comelec on the proper allocation
of seats in the party-list system. On 23 April 2009, the Supreme
Court declared the 2% threshold clause in relation to the
distribution of the additional seats of RA 7941 unconstitutional.
Following Section 5, Article VI, par. 2 of the 1987
Constitution, 20% of all seats in the HR is reserved for sectoral
representatives elected in the party list system. This formula is
now called the “Carpio formula.”
Page 18
 Under the Banat and Bayan Muna cases (G.R. No.
179271 and G.R. No. 179295, 21 April 2009), the SC laid down
the latest formula in the allocation of seats for party-list
participants:
1) The parties, organizations and coalitions shall be ranked from
the highest to the lowest based on the number of votes they
garnered during the elections.
2) The parties, organizations and coalitions receiving at least 2%
of the total votes cast for the party-list system shall be entitled
to one guaranteed seat each.
3) Those garnering sufficient number of votes, according to the
ranking above-mentioned in paragraph no. 1 hereof, shall be
entitled to additional seats in proportion to their total number of
votes until all the additional seats are allocated.
4) Each party, organization, or coalition shall be entitled to not
more than 3 seats.
Banat abandoned the matter of computation held in the Veterans
Party case considering that the intention was to fill the 20% seats
in the HR.
ELIGIBILITY OF CANDIDATES
Candidate defined: The term “candidate” refers to any person
aspiring or seeking an elective public office, who has filed a
certificate of candidacy by himself or through an accredited
political party, aggroupment, or coalition of parties. (Sec. 79,
OEC)
The terms “candidate” under the Automated Election System
(AES) in 2010, refers to “any person aspiring for or seeking an
elective public office who has filed his COC and who has not dies
or withdrawn or otherwise disqualified before the start of the
campaign period for which he filed his COC. Provided, that,
unlawful acts or omissions applicable to a candidate shall take
effect only upon the start of the aforesaid campaign period.”
(Comelec Reso. No. 8678).
As regards a Party-List system, a “candidate” also refers to “any
registered national, regional, or sectoral party, organization or
coalition thereof that has filed a manifestation to participate under
the part-list system which has not withdrawn or which has not be
disqualified before the start of the campaign period.” (RA 7941).
Comelec Reso. No. 9615 adopted a broader definition of the term
“candidate” for the 13 May 2013 Elections to include party-list in
include all the above-definitions.
Qualifications
For President and Vice-President – No person may be elected
President unless he is a natural-born citizen of the Philippines, a
registered voter, able to read and write, at least 40 years of age on
the day of the election, and a resident of the Philippines for at
least 10 years immediately preceding such election.
There shall be a Vice-President who shall have the same
qualifications and term of office and be elected with, and in the
same manner, as the President. He may be removed from office in
the same manner as the President (Article VII, Section 2 and 3,
Constitution)
For Senator – No person shall be a Senator unless he is a natural-
born citizen of the Philippines and, on the day of election, is at
least 35 years of age, able to read and write, a registered voter, and
a resident of the Philippines for not less than 2 years immediately
preceding the elections. (Article VI, Section 3, Constitution)
ELECTION LAWS REVIEWER
For Members of the House of Representatives – No person
shall be a Member of the HR unless he is natural-born citizen of
the Philippines, and, on the day of election, is at least 25 years of
age, able to read and write, and except the party list
representatives, a registered voter in the district in which he shall
elected, and a resident thereof for a period of not less than on year
immediately preceding the election. (Article VI, Section 6,
Constitution)
For Party-List Nominees – No person shall be nominated as
party-list representative unless he is a natural born-citizen of the
Philippines, a registered voter, a resident of the Philippines for a
period of not less than one (1) year immediately preceding the day
of the election, able to read to read and write, a bona fide member
of the party or organization which he seeks to represent for at least
90 days preceding the day of the election and is at least 25 years of
age on the day of the election.
In case of a nominee of the youth sector, he must at least
be 25 but not more than 30 years of age on the day of the election.
Any youth sectoral representative who attains the age of 30 during
his term shall be allowed to continue in office until the expiration
of his term. (RA 7941).
Bengzon III v. HRET 357 SCRA 545 (2001) – Repatriation
results in the recovery of the original nationality. This means that
a naturalized Filipino who lost his citizenship will be restored to
his prior status as a naturalized Filipino citizen.. On the other
hand, if he was originally a natural-born citizen before he lost his
Philippine citizenship, he will be restored to his former status as a
natural-born Filipino.
Local Government Officials – An elective local official must be
a citizen of the Philippines; a registered voter in the barangay,
municipality, city or province or, in the case of a member of the
sangguniang panlalawigan, sangguniang panlungsod or
sangguniang bayan, the district where he intends to be elected; a
resident therein for at least one (1) year immediately preceding the
day of the election; able to read and write Filipino or any other
local language or dialect.
Common to All Offices - Voluntary renunciation of the office for
any length of time shall not be considered as an interruption in the
continuity of the service for the full term for which they were
elected.
RA No. 9165 (Comprehensive Dangerous Drugs Act of 2002)
Section 36(g) provides that “all candidates for public office
whether appointed or elected both in the national and local
government shall undergo mandatory drug tests. Comelec issued
Resolution No. 6486 on 23 December 2003 implementing 9165.
Publication of the results will be published. But the resolution
does not indicate whether or not candidates who test positive for
drugs will be allowed to assume office if they win.)
Social Justice Society v. Dangerous Drugs Board, G.R. No.
157870, 03 November 2008 – Sec. 36(g) of RA 965 and Comelec
Resolution No. 6486 was challenged as the same illegally impose
an additional qualification on candidates for senator. Senator
Pimentel point out that, subject to the provision on nuisance
candidates, a candidate for senator needs only to meet the
qualification laid down in Section 3, Art. VI of the Constitution, to
wit: (1) citizenship; (2) voter registration; (3) literacy; (4) age and
(5) residency. Beyond these stated qualification requirements,
candidates for senator need not possess any other qualification to
Page 19
run for senator and be voted upon and elected as member of the
Senate.
As ruled, Sec. 36(h) of RA 9165, as sought to be
implemented by Comelec assailed Resolution, effectively enlarges
the qualification requirements enumerated in Sec. 3, Art. VI of the
Constitution. As couched, said Sec. 36(g) unmistakably requires a
candidate for senator to be certified illegal drug-clean, obviously a
pre-condition to the validity of a certificate of candidacy for
senator or, with like effect, a condition sine qua non to be voted
upon and, if proper, be proclaimed as senator-elect. Viewed in its
proper context, the implementing Comelec Resolution add another
qualification layer to what the 1987 Constitution, as the minimum,
required for membership in the Senate. Sec. 36(h) infringed the
constitutional provision defining the qualification or eligibility
requirements for one aspiring to run for and serve as senator.
Getting elected would be of little value if one cannot assume
office for non-compliance with the drug-testing requirement.
CERTIFICATE OF CANDIDACY
1. Under the Manual Elections – The COC of candidacy shall
be filed on any day from the commencement of the election period
but not later than the day before the beginning of the campaign
period; Provided, that in cases of postponement or failure of
election under Section 5 and 6 of the OEC, no additional COC
shall be accepted except in cases of substitution of candidates as
provided un Section 77. (Section 75, OEC)
COC must be filed not later than the day before the date
for the beginning of the campaign period. (Sec. 7, RA 7166)
2. Under the AES – Section 11 of RA 8436 provides “for this
purpose, the deadline for filing of COC/petition for
registration/manifestation to participate in the election shall not be
later than 120 days before the elections.
The period has already been amended by RA 9369
which now reads – “For this purpose, the Commission shall set
the deadline for the filing of COC/petition of
registration/manifestation to participate in the election. Any
person who files his COC within this period shall only be
considered as a candidate at the start of the campaign period for
which he filed his COC; Provided that, unlawful acts or omissions
applicable to a candidate shall effect only upon the start of the
aforesaid campaign period. Xxxx “.
Section 73, BP 881/Omnibus Elections Code (OEC) , par. (1) –
Certificate of Candidacy – No person shall be eligible for any
elective office unless he files a sworn certificate of candidacy
within the period fixed therein.Sinaca v. Mula 315 SCRA 266, it
is the nature of a formal manifestation to the whole world of the
candidate’s political creed or lack of political creed.
Coquilla v. Comelec G.R. No. 139801, 31 May 2000 – A
certificate which did not indicate the position for which the
candidate is running may be corrected. The SC ruling on the
effectiveness of the amended COC filed to correct the defect
declared that the filing of an amended COC even after the deadline
but before the election was substantial compliance with the law
which cured the defect.
Section 73 (3) BP 881 (Effect of filing multiple certificates of
candidacy)–No person shall be eligible for more than one office
to be filed in the same election(requirement to run for elective
office), and if he files his certificate of candidacy for more than
one office, he shall not be eligible for any of them.
ELECTION LAWS REVIEWER
Withdrawal of Certificate of Candidacy - However, before the
expiration of the period for the filing of the certificates of
candidacy, the person who has filed more than one certificate of
candidacy may submit a written declaration under oath the office
for which he desires to be eligible and cancel the certificate of
candidacy for the other office or offices.
Pilar v. Comelec 245 SCRA 759 (1995) – The withdrawal of a
certificate of candidacy does not extinguish one’s liability for the
administrative fine imposed by Section 14 of R.A. No. 7166,
which requires every candidate to file a true statement of all
contributions and expenditures in connection with the elections.
Villanueva v. Comelec 122 SCRA 636 (1983) – the withdrawal
of a certificate of candidacy not made under oath produces no
legal effect; for all intents and purposes, the withdrawing
candidate remains a candidate.
Go v. Comelec 357 SCRA 739 (2001) – Where affidavit of
withdrawal filed. There is nothing that mandates that the affidavit
of withdrawal must be filed with the same office where the
certificate of candidacy to be withdrawn was filed. Thus, it can be
filed directly with the main office of the Comelec, the office of the
regional election supervisor concerned, the office of the provincial
election supervisor of the province to which the municipality
involved belongs, or the office of the municipal election officer of
the said municipality.
EFFECTS: FILING OF CERTIFICATE OF CANDIDACY
In Talaga v. Comelec/Alcala 683 SCRA 197 (2012) The High
Court provided for the rationale for the filing of CoC within a
prescribed period – The evident purposes of the requirement for
the filing of CoCs and in fixing the time limit for filing them are,
namely; (a) to enable the voters to know, at least 60 days prior to
the regular election, the candidates from among whom they are to
make the choice; and (b) to avoid confusion and inconvenience in
the tabulation of the votes cast. If the law does not confine to the
duly-registered candidates the choice of the voters, there may be
as many persons voted for as there are voters, and votes may be
cast even for unknown or factitious persons as a mark to identify
the votes in favor of a candidate for another office in the same
election.
Sec. 66 BP 881/OEC.An appointive official is considered
resigned upon the filing of his/her certificate of candidacy. The
forfeiture is automatic and the operative act is the moment of
filing which shall render the appointive official resigned
(Nicolasora v. CSC 1990 case and PNOC v. NLRC, May 31,
1993), where the provision of Sec. 66 is applicable also to GOCC
and can constitute as a just cause for termination of employment in
addition to those set forth in the Labor Code.
Section 66 has already been repealed by RA 9369 to wit
– “Section 13. Section 11 of RA 8436 is hereby amended to read
as follows: “Any person holding a public office or position,
including active members of the AFP, and officers and employees
in GOCC, shall be considered ipso facto resigned from his/her
office and must vacate the same at the start of the day of the
filing of his/her certificate of candidacy.
Sec. 67 OEC – An elective official running for a position other
than the one he is holding in a permanent capacity, except for
President and Vice-President, is deemed resigned upon the filing
of his certificate of candidacy. Section 67 has been repealed by
Section 14 of RA 9006 (The Fair Elections Law), a candidate
Page 20
holding an elective position whether national or local running for
office other than the one he is holding in a permanent capacity is
considered resigned only upon the expiration of his term.
Sinaca v. Mula 315 SCRA 266 (1999) – The provision of the
election law regarding certificates of candidacy, such as signing
and swearing on the same, as well as the information required to
be stated therein, are considered mandatory prior to the elections.
Thereafter, they are regarded as merely directory.
Quinto v. Comelec G.R. No. 189698, 22 February 2010 –the
Court ruled that substantial distinctions exists between elective
official and appointive officials. The former occupy their office
by virtue of the mandate of the electorate. They are elected to an
office for a definite term and may be removed therefrom only
upon stringent conditions. On the other hand, appointive officials
hold their office by virtue of their designation thereto by an
appointing authority. Some appointive officials hold their tenure
while other serve at the pleasure of the appointing authority.
SUBSTITUTION OF CANDIDACY
Section 77 BP 881. Candidates in case of death, disqualification
or withdrawal of another.After the last day for the filing of
certificates of candidacy, an official candidate of a registered or
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. The
substitute candidate nominated by the political party concerned
may file his certificate of candidacy for the office affected in
accordance with the preceding sections not later than mid-day of
the date of the election. If the death, withdrawal or
disqualification should occur between the day before the election
and mid-day of election day, said certificate may be filed with the
board of election inspectors in the political subdivisions where he
is a candidate or, in the case of candidates to be voted for by the
entire electorate of the country, with the Commission.
A valid certificate of candidacy is an indispensable requisite in
case of substitution of a disqualified candidate under Sec. 77.
Under said provision, the candidate who dies, withdraws or is
disqualified must be an official candidate of a registered or
accredited political party and the substitute candidate must be of
the same political party as the original candidate and must be duly
nominated as such by the political party.
Rulloda vs. Comelec G.R. No. 154198 January 20, 2003 – The
absence of a specific provision governing substitution of
candidates in barangay elections cannot be inferred as a
prohibition against said substitution. Such a restrictive
construction cannot be read into the law where the same is not
written. Indeed, there is more reason to allow substitution of
candidates where no political parties are involved than when
political considerations or party affiliations reign, a fact that must
have been subsumed by law.
Miranda v. Abaya, G.R. No. 136351 July 28, 1999 –
Substitution is not allowed if certificate of the candidate to be
substituted was cancelled, because he was running for the 4 th
consecutive term. A person without a valid COC cannot be
considered a candidate in much the same way as any person who
has not filed any COC at all cannot, by any stretch of the
imagination, be a candidate at all.
ELECTION LAWS REVIEWER
Talaga v. Comelec & Castillo and Castillo v. Comelec &
Talaga, 683 SCRA 197 (2012)–In this case, Ramon was
disqualified having been found to be ineligible for the position of
Mayor of Lucena City which disqualification became final prior to
the May 10, 2010 elections. Barbara Ruby filed her CoC in
substitution of Ramon. Castillo was the opponent who filed a
disqualification case against Barbara Ruby on the ground that the
substitution was not valid in view of the ineligibility of Ramon,
Ramon did not voluntarily withdraw his CoC before the elections
in accordance with Section 73 and that she was not an additional
candidate for the position of Mayor because her filing of her CoC
was beyong the period fixed by law. Comelec declared the
substitution of Barbara Ruby as invalid on May 20, 2011
Barbary Ruby garnered the highest number of votes
while Castillo garnered second. Castillo contends that since the
disqualification of Ramon was final prior to the election he should
be declared winner. Castillo made reference to case of Cayat. In
this case, Rev. Fr. Nardo B. Cayat, the petitioner in Cayat, was
disqualified and his disqualification became final before the May
10, 20014 elections. Considering that no substitution of Cayat
was made, Thomas R. Pelileng, Sr. his rival remained the only
candidate for the mayoralty post in Buguias, Benguet.(Cayat v.
Comelec 522 SCRA 23 (2007)).
In contrast, after Barbara Ruby substituted Ramon, the
May 10, 2010 elections proceeded with her being regarded by the
electorate of Lucena City as a bona fide candidate. To the
electorate, she became a contender for the same position vied for
by Castillo, such that she stood on the same footing as Castillo.
Such standing as a candidate negated Castillo’s claim of being the
candidate who obtained the highest number of votes, and being
consequently entitled to assume the office of Mayor.The Court
stressed that the existence of a valid CoC is a condition sine
qua non for a valid substitution.
Effect of Substitution of Candidates after Official Ballots Have
Been Printed in AES - In case of valid substitution after the
official ballots have been printed, the votes cast for the substituted
candidates shall be considered votes for the substitutes.” (Sec. 12
RA 8436, 22 December 1997)
Under Section 12 of RA 9006, 12 February 2001 it
provides – in case of valid substitutions after the official ballot
have been printed, the votes cast for the substituted candidates
shall be considered as stray votes but shall not invalidate the
whole ballot. For this purpose, the official ballot shall provide
spaces where the voters may write the name of the substitute
candidates if they are voting for the latter; Provided, however, that
if the substitute candidate has the same family name, this
provision shall not apply.
Since Section 12 of RA 8436 has not been amended nor
repealed by RA 9369, it can be assumed that the votes cast for the
substituted candidates shall be considered votes for the substitutes
in an AES for the reason that the counting machine will not read
any unwarranted marks on the official ballot such as writing the
name of the substitute candidate.
RESIDENCY REQUIREMENT
Svetlana P. Jalosjos vs. Comelec/Tupag/Estrellada 699 SCRA
507 (2013)– The SC stressed that to be an actual and physical
Page 21
resident of a locality, one must have a dwelling place where one
resides no matter how modest and regardless of ownership. The
fact that the residential structure where petitioner intends to reside
was still under construction on the lot she purchased means that
she has not yet established actual and physical residence in the
barangay, contrary to the declaration of her witnesses that she has
been an actual and physical resident of Brgy. Tugas since 2008.
Meynard Sabili v. Comelec/Florencio Librea 670 SCRA 664
(2012).It is not required that a candidate should have his own
house in order to establish his residence or domicile in a place. It
is enough that he should live in the locality even in a rented house
or that of a friend or relative. What is of central concern then is
that the person identified and established a place in the said City
where he intended to live in and return to for an indefinite period
of time.
Jalosjos v. Comelec 683 SCRA 1 24 April 2012 – Jalosjos came
to the Philippines in November 2008 to live with his brother in
Zamboanga Sibugay. It is evident that Jalosjos did so with intent
to change his domicile for good. He left Australia, give up his
Australian citizenship, and renounced his allegiance to that
country. In addition, he reacquired his old itizenship by taking an
oath of allegiance to the Republic of the Philippines, resulting in
his being issued a Certificate of Reacquisition of Philippine
Citizenship by the BID. By his acts, Jalosjos forfeited his legal
right to live in Australia, clearly proving that he gave up his
domicile there. And he has since lived nowhere else except in Ipil,
Zamboanga Sibugay.
Mitra vs. Commission on Elections, Antonio Gonzales and
Orlando Balbon, Jr. 622 SCRA 744 (July 2010). In considering
the residency issue, the dwelling where a person permanently
intends to return to and to remain – his or her capacity or
inclination to decorate the place, or the lack of it, IS
IMMATERIAL. Comelec gravely abused its discretion when it
determined the fitness of a dwellingas a person’s residence
based solely on very personal and subjective assessment
standards when the law is replete with standards that can be
used. Comelec used wrong considerations in arriving at the
conclusion that Mitra’s residence is not the residence
contemplated by law.
Asistio v. Trindad Pe-Aguirre, G.R. No. 191124, 27 April
2010–the High Court said – “Domicile is not easily lost. To
successfully effect a transfer thereof, one must demonstrate: (1) an
actual removal or change of domicile; (2) a bona fide intention of
abandoning the former place of residence and establishing a new
one; and (3) acts which corresponding with that purpose. There
must be animus manendi coupled with animus non revetendi. This
purpose to remain in or at the domicile of choice must for for an
indefinite period of time; the change of residence must be
voluntary; and the residence at the place chosen for the new
domicile must be actual.
Limbona v. Comelec, G.r. No. 181970, June 25, 2008– There is
no hard and fast rule to determine a candidate’s compliance with
residency requirement since the question of residence is a question
of intention.
Coquilla vs. Comelec 385 SCRA 607 – A former Filipino citizen
cannot be considered a resident of the Philippines and in the
locality he intends to be elected prior to his reacquisition of
Philippine citizenship.
ELECTION LAWS REVIEWER
The “term residence” is to be understood NOT in its
common acceptation as referring to “dwelling” or “habitation”, but
rather to “domicile” or legal residence, that is, “the place where
the party actually or constructively has his permanent home,
where he, no matter where he may be found at any given time,
eventually intends to return and remain (animus manendi)”. A
domicile of origin is acquired by every person at birth. It is
usually the place where the child’s parents reside and continues
until the same is abandoned by acquisition of a new domicile (by
choice.)
Romualdez-Marcos v. Comelec 248 SCRA 30 (1995). “it is the
fact of residence, not a statement in the certificate of candidacy
which ought to be decisive in determining whether or not an
individual has satisfied the constitutions residency qualification
requirement. The said statement becomes material only when
there is or appears to be a deliberate attempt to mislead, misinform
or hide a fact which would otherwise render the candidate
ineligible.
Perez v. Comelec 317 SCRA 640, the qualifications of Rodolfo
Aguinaldo former governor of Cagayan was at issue when he filed
his certificate of candidacy as member of the HR for the 3 rd district
of Cagayan in the 11 May 1998 elections. The Court reiterated the
meaning of residence as “the place where the party actually or
constructively has his permanent home” where he, no matter
where he may be found at any given time, eventually intends to
return and remain, while domicile, is that to which the
Constitution refers when it speaks of residence for the purpose of
election law. And, the fact that a person is a RV in one district is
not proof that he is not domiciled in another district.
Torayno Sr., vs. Comelec 337 SCRA 574, the issue in this case is
the residence qualification of Vicente Emano who filed his
certificate of candidacy for Mayor of Cagayan de Oro.Court
explained that the purpose of the residence as required by
Constitution and the law as a qualification for seeking and
holding public office, is to give candidates the opportunity to be
familiar with the needs, difficulties and aspiration, potentials for
growth and all matters vital to the welfare of their constituencies.
On the part of the electorate, to evaluate the candidate’s
qualification s and fitness for the job they aspire for. In this case
Emano, cannot be deemed to be a stranger or newcomer when he
ran for and was overwhelmingly voted as city mayor having
garnered a margin of 30K votes.
Papandayan, Jr. vs. Comelec 381 SCRA 133. Domicile
connotes a fixed permanent residence to which when absent for
business or pleasure, or for like reasons, one intends to return.
The requirements in order to acquire a new domicile by choice
are: (a) an intention to remain there; (b) residence or bodily
presence in the new locality; and (c) an intention to abandon the
old domicile.
ACTIONS TO CHALLENGE CANDIDACY OF A
CANDIDATE OR DISQUALIFY CANDIDATE
1) Sec. 12 of the 0EC –
 any person who has been declared by competent
authority insane or incompetent (when we say
incompetence, the same may refer not only to
mental illness, disease or physical disability but
also to other causes which may include minority or
lack of residence requirement)
Page 22
  any person who has been sentenced by final
judgment for subversion, insurrection, rebellion
 for any offense for which carries a penalty of more
than 18 months
 for a crime involving moral turpitude
The disqualification is removed by
 plenary pardon or granted amnesty
 upon declaration by a competent authority that
said insanity or incompetence had been
removed
 expiration of a period of 5 years from his
service of sentence unless of course within the
same period he again becomes disqualified.
2) Sec. 68 of the OEC
 those guilty of giving money or material consideration
to influence, induce or corrupt voters or public official
performing electoral functions;
 those who have committed terrorism to enhance his
candidacy
 those who have spend in the election campaign more
than that required by law (Php10/RV/Php5.00)
NOTE: Section 68 deals with a petition to disqualify a candidate
for other violations of the election code as specified in said
section, and against a candidate who is a permanent resident or
immigrant of a foreign country. That section does not specify a
period within which to file the petition.
In Codilla vs. De Venecia 393 SCRA 634, it was held that the
power of Comelec to disqualify candidates is limited to the
enumerations mentioned in Section 68 of the OEC. Elements to
be proved are as follows:
 the candidate, personally or through his instructions,
must have given money or other material consideration
and
 the act of giving material consideration or money should
be for the purpose of influencing, inducing or corrupting
the voters or public officials performing electoral
functions.
3) Sec. 69 – Petition to Abate a Nuisance Candidate – the
Comelec, may motu propio or upon verified petition of an
interested party, refuse to give due course to or cancel a certificate
of candidacy if it is shown that it is filed in contemplation of a
nuisance candidate or cancel the same if already filed. This is an
exception to the ministerial duty of the Comelec and its
officers to receive a certificate of candidacy under Section 76
of the OEC.
WHO IS A NUISANCE CANDIDATE
 one who files his certificate to put the election process in
mockery or disrepute
 contemplates the likelihood of confusion which the
similarity of surnames of two (2) candidates may
generate. (in the appreciation of ballots, when two
candidates with the same name or surname and only the
name or surname is written, will be considered stray
vote and will not be counted for either of the candidate
unless one of the candidate with the same name or
surname is an incumbent – equity of the incumbent rule)
ELECTION LAWS REVIEWER
 by other circumstances or acts which clearly
demonstrate that the candidate has no bonafide intention
to run for office, thus would prevent the faithful
determination of the true will of the people.
(Bautista vs. Comelec 298 SCRA 480)
Who can file – a petition to declare a candidate a nuisance
candidate shall be filed by any registered candidate for the same
officewithin 5 days from the last day of the filing of the
certificate of candidacy. (As amended by Section 5 of RA 6646
Rev. Elly Chavez Pumatong v. Comelec, G.R. No. 161872 13
April 2004 – The rationale behind the prohibition against nuisance
candidates and the disqualification of candidates who have not
evinced a bona fide intention to run for office is easy to divine.
The State has a compelling interest to ensure that its electoral
exercises are rational;, objective and orderly. Towards this end,
the State takes into account the practical considerations in
conducting elections. Inevitably, the greater the number of
candidates, the greater the opportunities for logistical confusion,
not to mention the increased allocation of time and resources in
preparation for the election. These practical difficulties should, of
course, never attempt the State from the conduct of a mandated
electoral exercise. At the same time, remedial actions should be
available to alleviate these logistical hardships, whenever
necessary and proper. Ultimately, a disorderly election is not
merely a textbook example of inefficiency, but a rot that erodes
faith in our democratic institutions.
Martinez III vs. HRET 610 SCRA 53 (January 2010) –
Proceedings in cases of nuisance candidates require prompt
disposition. The declaration of a duly registered candidate as
nuisance candidate results in the cancellation of his COC.
Dela Cruz v. Comelec G.R. No. 192221, 13 November 2012 -
(Should the votes cast for such nuisance candidate be
considered stray or counted in favor of the bona fide
candidate?) – In an automated election, the Supreme Court,
likewise ruled not to consider the votes cast for a nuisance
candidate as stray but to count them in favor of the bona fide
candidate.
“As far as Comelec is concerned, the confusion caused
by similarity of surnames of candidates for the same position and
putting the electoral process in mockery or disrepute, had already
been rectified by the new voting system where the voter simply
shades the oval corresponding to the name of their chosen
candidate. However, as shown in this case, Comelec issued
Resolution No. 8844 on May 1, 2010, 9 days before the elections,
with sufficient time to delete the names of disqualified candidates
not just from the Certified List of Candidates, but also from the
Official Ballot. Indeed, what use will it serve if Comelec orders
the names of disqualified candidates to be deleted from list of
official candidates if the official ballots still carry their name?
The Court holds that the rule in Resolution No. 4116
considering the votes cast for a nuisance candidate declared as
such in a final judgment, particularly where such nuisance
candidate has the same surname as that of the legitimate candidate,
not stray but counted in favor of the latter, remains a good law.
As earlier discuss, a petition to cancel or deny a CoC under
Section 69 of the OEC should be distinguished from a petition to
disqualify under Section 68. Hence, the legal effect of such
cancellation of a CoC of a nuisance candidate cannot be equated
with a candidate disqualified on grounds provided in the OEC and
the Local Government Code.
Page 23
 The possibility of confusion in names of candidates if
the names of nuisance candidates remained in the ballot on
election day, cannot be discounted or eliminated, even under the
automated voting system especially considering that voters who
mistakenly shaded the oval beside the name of the nuisance
candidate instead of the bonafide candidate they intended to vote
for could no longer ask for replacement ballots to correct the
same.
4) Sec. 78 OEC – Petition to Deny due Course or to Cancel a
Certificate of Candidacy. “A verified petition seeking to deny
due course or to cancel a certificate of candidacy may be filed by
the person exclusively on the ground that any material
representation contained therein as required under Section 74
(contents of the COC) of the OEC is false. The petition may be
filed at any time not later than 25 days from the time of the filing
of the certificate of candidacy and shall be decided, after due
notice and hearing, not later than 15 days before election.”
Who may file – by any person through a verified petition
On What Grounds – the candidate made material
misrepresentation in his certificate of candidacy. Section 78 deals
“exclusively” with a petition to deny due course to a COC on the
ground that a material representation in the contents of the
certificate under Sec. 74, is false. (pertains to a candidate’s
eligibility or qualification such as citizenship, residence or status
as a registered voter Maruhom vs. Comelec 594 SCRA 108)
Period to File – Within 25 days from the last day for the filing of
the certificate of candidacy.
Jurisdiction – Comelec sitting in a division.
Sergio G. Amora, Jr. vs. Comelec and Arnielo S. Olandria 640
SCRA 473 (2011) - To emphasize, a petition for disqualification
on the one hand, can be premised on Section 12 and 68 of the
OEC, or Section 40 of the LGC. On the other hand, a petition to
deny due course to or cancel a CoC can only be grounded on a
statement of a material representation in the said certificate that is
false. The petitions also have different effects. While a person
who is disqualified under Section 68 is merely prohibited to
continue as a candidate, the person whose certificate is cancelled
or denied due course under Section 78 is not treated as a candidate
at all, as if he/she never filed a CoC. Thus in Miranda v. Abaya,
this Court made the distinction that a candidate who is disqualified
under Section 68 can validly be substituted under Section 77, but a
person whose CoC has been denied due course or cancelled under
Section 78 cannot be substituted because he/she is never
considered a candidate.” (also ruled in Fermin v. Comelec 574
SCRA 782)
Mayor Barbara Ruby Talaga vs. Comele/Alcala 683 SCRA
197 (2012) – The High Court reiterated, that a Section 78 petition
should not be interchanged or confused with a Section 68 petition.
The remedies under the two sections are different eventualities. A
person who is disqualified under Sectin 68 is prohibited to
continue as a candidate, but a person whose CoC is cancelled or
denied due course under Section 78 is not considered as a
candidate at all because his status is that of a person who has not
filed a CoC. Miranda v. Abaya 311 SCRA 617 (1999), has
clarified that candidate who is disqualified under Section 68 can
be validly substituted pursuant to Section 77 because he remains a
candidate until disqualified; but a person whose CoC has been
ELECTION LAWS REVIEWER
denied due course or cancelled under Section 78cannot be
substituted because he is not considered a candidate.
Munder vs. Comelec 659 SCRA 254 (2011) - “Jurisprudence has
clearly established the doctrine that a petition for disqualification
and a petition to deny due course to or to cancel a certificate of
candidacy, are two distinct remedies to prevent a candidate from
entering an electoral race. Both remedies prescribe distinct period
to file the corresponding petition, on which the jurisdiction of the
Commission on Elections over the case is dependent.”
Fernando V. Gonzalez vs. Comelec, et. al. 644 SCRA 761
(2011) - “In order to justify the cancellation of CoC, it is
essential that the false representation mentioned therein pertain to
a material matter for the sanction imposed by Section 78 would
affect the substantive rights of the candidate – the right to run for
the elective post for which he filed the CoC. Material
representation refers to qualifications for elective office
(interpreted to refer to statements regarding age, residence and
citizenship or non-possession of natural-born Filipino status);
Aside from the requirement of materiality, the false representation
must consist of a deliberate attempt to mislead, misinform or hide
a fact which would otherwise render a candidate ineligible; it
must be made with the intention to deceive the electorate as to
one’s qualification for public office.” (also ruled in Salcedo II v.
Comelec 312 SCRA 447 (1999))
Two remedies available for questioning the
qualifications of the candidate: Distinction between the two
proceedings under Section 78 and Section 253 under B.P. 881,
thereof (1) Before elections under Section 78 and (2) After
elections under Section 253. The only difference between the two
proceedings is that, under Section 78, the qualifications for
elective office are misrepresented in the certificate of candidacy
and the proceedings must be initiated before the elections, whereas
a petition for QW under Section 253 may be brought on the basis
of two grounds – (1) ineligibility or (2) disloyalty to the Republic
of the Philippines, and must be initiated within 10 days after
proclamation of the election results. Under Section 253, a
candidate is ineligible if he is disqualified to be elected to office,
and he is disqualified if he lacks any of the qualification for
election office.
Clearly, the ONLY INSTANCE where a petition
questioning the qualifications of a candidate for elective office can
be filed before election is when the petition is filed under Section
78 of the OEC.
Period for filing a petition under Section 78 – In Loong
v. Comelec 216 SCRA 760 (1992), the Court categorically
declared that the period for filing a petition for cancellation of
candidacy based on false representation is covered by Rule 23 and
NOT Rule 25 allowing the filing of a petition at any time after the
last day for filing of CoC’s but not later than the date of
proclamation, is merely a procedural rule that cannot supercede
Section 78 of the OEC.
A petition filed under Section 78 must not be
interchanged or confused with one filed under Section 68 – In
Fermin v. Comelec 574 SCRA 782 (2008), the Court stressed that
a petition which is properly a “Section 78 petition” must therefore
be filed within the period prescribed therein, and a procedural
rules subsequently issue by Comelec cannot supplant this statutory
period under Section 78.
Jurisdiction – Once a winning candidate has been proclaimed,
taken his oath and assumed office as a member of the House of
Page 24
Representatives, the jurisdiction of the Comelec over election
contests relating to his election, returns and qualifications ENDS
and the HRET own jurisdiction BEGINS.
In Perez v. Comelec 317 SCRA 641 (1999) the Court does not
have jurisdiction to pass upon the eligibility of the private
respondent who was already a Member of the HR at the time of
the filing of the petition for certiorari – considering that by
statutory provision (Article VI, Section 17 of the 1987
Constitution, the HRET is the sole judge of all contests relating to
the election, returns and qualifications of the members of the HR.
Procedure in filing Motion to Suspend Proclamation: The
suspension of proclamation of a winning candidate is not a
matter which theComelec Second Division can dispose of motu
propio. Section 6 of RA No. 6646 requires that the suspension
must be upon motion by the complainant or any intervenor.
Second Placer Rule- It is well-settled 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.
Exceptions to the Second Placer Rule – The exception to the
second placer rule is predicated on the concurrence of the
following (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 a candidate’s disqualification so as to bring such
awareness within the realm of notoriety but would nonetheless
case their votes in favor of the ineligible candidate. These facts
warranting the exception to the rules are not present in the case at
bar.
Ashary M. Alauya (Clerk of Court, Shari’a District Court,
Marawi City vs. Judge Casan Ali L. Limbona 646 SCRA 1
(2011) - Partisan political activity – The filing of a certificate of
candidacy is a partisan political activity as the candidate thereby
offers himself to the electorate for an elective post. “No officer or
employee in the civil service shall engage directly or indirectly, in
any electioneering or partisan political campaign.” The act of the
Judge in filing a certificate of candidacy as a party-list
representative in the May 1998 elections without giving up his
judicial post violated not only the law, but also the constitutional
mandate.
Teodora Sobejana-Condon v. Comelec/Luis Bautista/Robelito
Picar/Wilma Pagaduan 678 SCRA 267 (2012) - Remedy of a
person who fails to file the petition to disqualify a certain
candidate within the twenty-five (25)-day period prescribed by
Section 78 of the OEC is to file a petition for QW within 10 days
from proclamation of the results of the election as provided under
Section 253 of the OEC.
Renunciation of foreign citizenship to be valid under Section 5(2)
of RA 9225 – The language of Section 5(2) of RA 9225 is free
from any ambiguity. In Lopez v. Comelec 559 SCRA 696
(2008), the Court declared it ‘s categorical and single meaning: a
Filipino American or any dual citizen cannot run fo any elective
public position in the Philippines unless he or she personally
swears to a renunciation of all foreign citizenship at the time of
filing the CoC. The Court also expounded on the form of the
renunciation and held that to be valid, the renunciation must be
contained in an affidavit duly executed before an officer of the law
who is authorized to administer an oath stating in clear and
unequivocal terms that affiant is renouncing foreign citizenship.
ELECTION LAWS REVIEWER
Casan Macode Maquiling v. Comelec et. al. 700 SCRA 367
(2013) –the declared policy of RA 9225 is that “all Philippine
citizens who become citizens of another country shall be deemed
not to have lost their Philippine citizenship under the conditions of
this Act”. This policy pertains to the reacquisition of Philippine
citizenship. Section 5(2) requires those who have re-acquired
Philippine citizenship and who seek elective public office, to
renounce any and all foreign citizenship. This requirement of
renunciation of any and all foreign citizenship, when read together
with Section 40(d) of the Local Government Code which
disqualifies those with dual citizenship from running for any
elective local position, indicates a policy that anyone who seeks to
run for public office must be solely and exclusively a Filipino
citizen. To allow a former Filipino who reacquires Philippine
citizenship to continue using a foreign passport – which indicates
the recognition of a foreign state of the individual as its national –
even after the Filipino has renounced his foreign citizenship, is to
allow a complete disregard of this policy.
Panlaqui v. Comelec 613 SCRA 573 – Voters’
inclusion/exclusion proceedings essentially involve the issue of
whether a petition shall be included in or excluded from the list of
voters based on the qualifications required by law and the facts
presented to show possession of these qualifications. On the other
hand, the COC denial/cancellation proceedings involve the issue
of whether there is a false representation of a material fact. The
false representation must necessarily pertain not to a mere
innocuous mistake but to a material fact or those that refer to a
candidate’s qualification for elective office.
NOTE: In Fermin v. Comelec G.R. No. 179695 and G.R. No.
182369, December 18, 2008, the SC clarified that Section 5
(Procedure in cases of Nuisance candidates) and Section 7
(Petition to Deny Due Course To or Cancel a Certificate of
Candidacy under RA 6646, did not in any way amend the period
for filing “Section 78” petitions.
While Section 7 of the said law makes reference to Section 5 on
the procedure in the conduct of cases for the denial of due course
to the COC’s of nuisance candidates (then chief Justice Davide in
his dissenting opinion in Aquino v. Comelec, G.R. No. 120265,
September 18, 1995 248 SCRA 400, explains that “the procedure
hereinabove provided mentioned in Section 7 cannot be construed
to refer to Section 6 which does not provide for a procedure but to
the effects of disqualification cases, (but) can only refer to the
procedure provided in Section 5 of the said Act on nuisance
candidates, “ the same cannot be taken to mean that the25-
day period for filing Section 78 petitions is changed to 5 days
counted from the last day for the filing of COC’s.
The clear language of Section 78 cannot be amended or
modified b y a mere reference in a subsequent statute to the use of
a procedure specifically intended for another type of action.
Cardinal is the rule in statutory construction that repeals by
implication are disfavored and will not be so declared by the Court
unless the intent of the legislators is manifest. Noteworthy in
Loong v. Comelec 216 SCRA 760 (1992),which upheld the 25-
day period for filing Section 78 petitions, was decided long after
the enactment of RA 6646. Hence, Section 23, Section 2 of the
Comelec Rules of Procedure is contrary to the unequivocal
mandate of the law. Following the ruling in Fermin, the Court
declared that “as the law stands, the petition to deny due course
to or cancel a COC may be filed at anytime not later than 25-
days from the time of the filing of the COC.
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In Justimbaste v. Comelec 572 SCRA 736 (2008) – Material
misrepresentation as a ground to deny due course or cancel a
certificate of candidacy refers to the falsity of a statement required
to be entered therein as enumerated in Section 74 of the OEC.
Concurrent with materiality is a deliberate intention to deceive the
electorate as to one qualification making reference to Salcedo II
that in order to justify the cancellation of the COC under Section
78, it is essential that the false representation mentioned therein
pertained to a material matter for the sanction imposed by this
provision would affect the substantive rights of a candidate – the
right to run for the elective post for which he filed the COC. There
is also no showing that there was an intent to deceive the
electorate as to the identity of the private respondent, nor that by
using his Filipino name the voting public was thereby deceived.
DISQUALIFICATION UNDER THE LOCAL
GOVERNMENT CODE R.A. 7160
A candidate for an elective office may likewise be
disqualified on the following grounds –
 those sentenced by final judgment for an offense
involving moral turpitude or for an offense
punishable by one (1) year or more imprisonment,
within 2 years after serving sentence. (Sec. 40)
(Qualifications of local elective candidates under the
LGC was asked
 in the 1999 Bar)
NOTE:The 1st ground for disqualification consists of two (2)
parts, namely: (1) those sentenced by final judgment for an offense
involving moral turpitude, regardless of the period of
imprisonment; and (2) those sentenced by final judgment for an
offense, OTHER THAN one involving moral turpitude,
punishable by one (1) year or more imprisonment, within 2 years
after serving sentence.
Sec. 40 of RA 7160 limits the disqualification to two (2) years
after service of sentence. This should now be read in relation to
Sec. 11 of RA 8189 which enumerates those who are disqualified
to register as a voter. The 2 year disqualification period under
Sec. 40 is now deemed amended to last 5 years from service of
sentence after which period the voter will be eligible to register as
a voter and to run for an elective public office.
 Those convicted by final judgment for violating the
oath of allegiance to the Republic
 Fugitives from justice in criminal and non-political
cases.
In Marquez, jr. vs. Comelec and Rodriguez 259 SCRA, it was
held that fugitives from justice refer to a person who has been
convicted by final judgment. The SC ruled that when a person
leaves the territory of a state not his own, homeward bound and
subsequently learns of the charges filed against him while he is in
his own country, does not outrightly qualify him as a fugitive from
justice if he does not subject himself to the jurisdiction of the
former state. When Rodriguez left the US, there was yet no
complaint filed and warrant of arrest, hence there is no basis in
saying that he is running away from any prosecution or
punishment.
 Those removed from office as a result of an
administrative charge
ELECTION LAWS REVIEWER
In Rodolfo Aguinaldo vs. Comelec, it was held that a public
elective official cannot be removed for administrative conduct
committed during a prior term as his re-election to office operates
as a condonation of the officers previous misconduct to the extent
of cutting of the right to remove him therefore.
Grego v. Comelec 274 SCRA 481, the Court ruled that Sec. 40 of
RA 7160 does not have any retroactive effect. In this case a
Deputy Sheriff was removed for serious misconduct in 1981. He
run in 1992 & 1995. His removal in 1981 cannot serve as basis
for his disqualification. Laws have prospective effect.
Those with dual citizenship. The relevant cases under this
provision are the cases of –
 Mercado v. Manzano & Comelec G.R.
No. 135083 May 25, 1999
 Aznar v. Comelec 185 SCRA 703
 Cirilo Valles v. Comelec & Lopez G.R.
#138000 August 9, 2000
In Aznar, it was ruled that the mere fact that respondent Osmeña
was holder of a certificate stating that he is an American citizen
did not mean that he is no longer a Filipino & that an application
for an ACR was not tantamount to renunciation of his Philippine
Citizenship.
Mercado v. Manzano & Comelec, it was held that the fact that
respondent Manzano was registered as an American citizen in the
BID & was holding an American passport on April 22, 1997, only
a year before he filed a certificate of candidacy for Vice-Mayor of
Makati, were just assertions of his nationality before the
termination of his American citizenship.
Valles v. Lopez, the Court held that the mere fact that Lopez was
a holder of an Australian passport and had an ACR are not act
constituting an effective renunciation of citizenship and do not
militate against her claim of Filipino citizenship. For renunciation
to effectively result in the lost of citizenship, the same must be
express (Com. Act 63, Sec. 1). Referring to the case of Aznar, an
ACR does not amount to an express renunciation or repudiation of
one’s citizenship. Similarly, her holding of an Australian passport
as in the Manzano case, were likewise mere acts of assertions
before she effectively renounced the same. Thus, at the most,
Lopez had dual citizenship – she was an Australian and a Filipino,
as well.
In reconciling the disqualification under Sec. 40 of RA 7160. The
Court clarified and as ruled in the Manzano case “dual
citizenship” as used in the LGC and reconciled with Article IV
Section 5 of the 1987 Constitution on dual allegiance (Dual
allegiance of citizens is inimical to the national interest and
shall be dealt with by law.”) In recognizing situation in which a
Filipino citizen may, without performing any act, as an
involuntary consequence of the conflicting laws of different
countries, be also a citizen of another state (jus sanguinis for the
Philippines where the child follows the nationality or citizenship
of the parents regardless of his/her place of birth as opposed to jus
soli which determines nationality or citizenship on the basis of
place of birth), the Court explained that dual citizenship as a
disqualification must refer to citizens with dual allegiance.
The fact that Lopez had dual citizenship did not automatically
disqualify her from running for public office. For candidates with
Page 26
dual citizenship, it is enough that they elect Phil. Citizenship upon
the filing of their certificate of candidacy, to terminate their status
as persons with dual citizenship. The filing of the certificate of
candidacy sufficed to renounce foreign citizenship effectively
removing any disqualification as a dual citizen.
In the Certificate of Candidacy, one declare that he/she is a
Filipino citizen and that he/she will support and defend the
Constitution of the Philippines and will maintain true faith and
allegiance thereto. Such declaration, which is under oath, operates
as an effective renunciation of foreign citizenship.
Lopez v. Comelec 559 SCRA 696 (2008)–The ruling in Valles
in 2000 has been superseded by the enactment of RA 9225 in
2003. RA 9225 expressly provides for the condition before those
who re-acquired Filipino citizenship may run for a public office in
the Philippines. Section 5 of the said law states: “Civil and
Political Rights and Liabilities. – Those who retain or re-acquire
Philippine Citizenship under this Act shall enjoy full civil and
political rights and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines and the
following conditions xxx (2) Those seeking elective public office
in the Philippines shall meet the qualifications for holding such
public office as required by the Constitution and existing laws and,
at the time of the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign citizenship
before any public officer authorized to administer an oath.
AASJS Member-hector G. Calilung vs. Secretary of Justice
G.R. No. 160869, may 11, 2007, the SC took the opportunity to
set parameters of what constitutes dual allegiance considering that
it only made a distinction between dual allegiance and dual
citizenship in Mercado vs. Manzano.
FACTS: Following the implementation of RA 9225 “An Act
Making the Citizenship of Philippine Citizens Who Acquire
foreign Citizenship Permanent, amending for the purpose CA 63,
as amended, petitioner filed a petition against respondent DOJ
Secretary Simeon Datumanong who was tasked to implement laws
governing citizenship. He prayed for a writ of prohibition to stop
respondent from implementing RA 9225. he avers that RA 9225
is unconstitutional as it violates Section 5, Article IV of the 1987
Constitution that states “ Dual allegiance of citizens is inimical
to the national interest and shall be dealt with by law”. He
contends that the Act cheapens the Philippine citizenship since the
Act allows all Filipinos, either natural-born or naturalized, who
become foreign citizens, to retain their Philippine citizenship
without losing their foreign citizenship. Section 3 permits dual
allegiance because said law allows natural-born citizens to regain
their Philippine by simply taking an oath of allegiance without
forfeiting their foreign allegiance. The Constitution however, is
categorical that dual allegiance is inimical to the national interest.
HELD: The intent of the legislature in drafting RA 9225 is to do
away with the provision in CA 63, which takes away Philippine
citizenship from natural-born Filipinos who become naturalized
citizens of other countries. RA 9225 allows dual citizenship to
natural-born Filipino citizens who have lost Philippine citizenship
by reason of their naturalization as citizens of a foreign country.
On its face, it does not recognize dual allegiance. By swearing to
the supreme authority of the Republic, the person implicitly
renounces his foreign citizenship. Plainly,Section 3, RA 9225
stayed clear out of the problem of dual allegiance and shifted the
burden of confronting the issue of whether or not there is dual
allegiance to the concerned foreign country. What happens to the
ELECTION LAWS REVIEWER
other citizenship was not made a concern of RA 9225. (Note:
Section 5, Article IV of the Constitution is a declaration of a
policy and it is not a self-executing provision. The legislature
still has to enact the law on dual allegiance.)
In De Guzman v. Comelec, G.R. No. 180048 June 19, 2009, it
was held that “where the Oath of allegiance and certificate of
candidacy did not comply with Section 5(2) of RA 9225 which
further requires those seeking elective public office in the
Philippines to make a personal and sworn renunciation of foreign
citizenship as where the candidate for VM of Guimba, Nueva
Ecija failed to renounce his American citizenship, it was held that
he was disqualified from running for VM in the May 14, 2007
elections.
Teodora Sobejana-Condon v. Comelec/Luis Bautista et. al. 678
SCRA 267 (2012) - Renunciation of foreign citizenship to be
valid under Section 5(2) of RA 9225 – The language of Section
5(2) of RA 9225 is free from any ambiguity. In Lopez v.
Comelec 559 SCRA 696 (2008), the Court declared it ‘s
categorical and single meaning: a Filipino American or any dual
citizen cannot run fo any elective public position in the Philippines
unless he or she personally swears to a renunciation of all foreign
citizenship at the time of filing the CoC. The Court also
expounded on the form of the renunciation and held that to be
valid, the renunciation must be contained in an affidavit duly
executed before an officer of the law who is authorized to
administer an oath stating in clear and unequivocal terms that
affiant is renouncing foreign citizenship.
Maquiling vs. Comelec 700 SCRA 367 (2013) – If we allow dual
citizens who wish to run for public office to renounce their foreign
citizenship and afterwards continue using their foreign passports,
we are creating a special privilege for these dual citizens, thereby
effectively junking the prohibition in Section 40(d) of the Local
Government Code. It must be stressed that what is at stake here is
the principle that only those who are exclusively Filipinos are
qualified to run for public office.
Frivaldo v. Comelec 174 SCRA 245 (1989). Frivaldo was
proclaimed governor elect of the Province of Sorsogon and
subsequently assumed office. A disqualification was filed against
him by the League of Municipalities, Sorsogon Chapter on the
ground that he was not a Filipino citizen, having been naturalized
in the US in 1983, which he admitted but which he undertook only
to protect himself against then President Marcos. The SC found
Frivaldo disqualified for not having possessed the requirement of
citizenship which cannot be cured by the electorate, especially if
they mistakenly believed, as in this case, that the candidate was
qualified.
Republic v. dela Rosa 232 SCRA 785. The disqualification of
Frivaldo was again at issue. Frivaldo opted to reacquire his
Philippine citizenship thru naturalization but however failed to
comply with the jurisdictional requirement of publication, thus,
the Court never acquired jurisdiction to hear the naturalization of
Frivaldo. He was again disqualified.
In Frivaldo v. Comelec 257 SCRA 72 (1996), Frivaldo later
reacquired Philippines citizenship and obtained the highest
number of votes in 3 consecutive elections but was twice declared
by the SC to be unqualified to hold office due to his lack of
citizenship requirement. He claimed to have re-acquired his
Filipino citizenship thru repatriation. It was established that he
took his oath of allegiance under the provision of PD 725 at 2pm
Page 27
on 30 June 1995, much later than the time he filed his certificate
of candidacy.
The Court held that the “the law does not specify any particular
date or time when the candidate must possess citizenship unlike
that of residence and age, as Sec. 39 of RA 7160 specifically
speaks of “qualification of elective officials, not candidates” thus,
the citizenship requirement in the local government code to be
possessed by an elective official at the latest as of the time he is
proclaimed and at the start of the term of office to which he has
been elected. But to remove all doubts on this important issue,
the Court held that the repatriation of Frivaldo retroacted to
the date of the filing of his application on 17 August 1994 and
being a former Filipino who has served the people repeatedly
and at the age of 81, Frivaldo deserves liberal interpretation of
the Philippine laws and whatever defects there were in his
nationality should now be deemed mooted by his repatriation.
 3 term limit or having served 3 consecutive terms.
Article X, Section 8, 1987 Constitution and Section 43(b)
of RA 7160 provides “No local elective official shall serve for
more than 3 consecutive terms in the same position. 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 the elective official concerned was elected.
In Laceda Sr., vs. Limena & Comelec 571 SCRA 603 – the
Court held that the rationale behind Section 2 of RA 9164, like
Section 43 of RA 7190 (Local Government Code) from which the
3-term rule was taken, is primarily intended to broaden the choices
of the electorate of the candidates who will run for office, and to
infuse new blood in the political arena by disqualifying officials
from running for the same office after a term of 9 years.
The case of Laceda Sr. involved a similar question in Latasa vs.
Comelec 417 SCRA 601 where the Court held that where a
person has been elected for 3 consecutive terms as municipal
mayor and prior to the end or termination of such 3-year term the
municipality has been converted by law into a city, without the
city charter interrupting his term until the end of the 3-year term,
the prohibition applied to prevent him from running for the 4 th
time as city mayor thereof, there being no break in the continuity
of the terms. Comelec did not err nor commit any abuse of
discretion when it declared Laceda disqualified and cancelled his
COC.
Adormeo v. Comelec & Talaga, Jr. G.R. No. 147927 04
February 2002 and citing Borja v. Comelec 295 SCRA 157 and
Lonzanida v. Comelec 311 SCRA 602, it was ruled that the term
limit for elective local officals must be taken to refer to the “right
to be elected” as well as the “right to serve in the same elective
position.” Thus, two (2) conditions for the application of the
disqualification must concur:
 that the official concerned has been elected for three (3)
consecutive terms in the same local government post;
and
 that the has fully served the three (3) consecutive terms.
In this case, respondent Talaga, Jr., was elected mayor of
Lucena City in May 1992. He served the full term, was re-elected
ELECTION LAWS REVIEWER
in 1995-98 but lost in the 1998 election to Tagarao. In the recall
elections of May 2000, Talaga, Jr. won and served the unexpired
term of Tagarao until 30 June 2001. Talaga Jr. filed his certificate
of candidacy for the same position in the 2001 elections which
candidacy was challenged by petition Adormeo on the ground that
Talaga, Jr. is already barred by the 3-term limit rule.
Adormeo contends that Talaga’s candidacy violated Section 8,
Article X of the Constitution which states that the term of office of
local elective officials shall be three (3) years and no such official
shall serve for more than three (3) consecutive terms citing the
case of Lonzanida v. Comelec To further support his case, he
adverts to the comment of Fr. Joaquin Bernas who stated that in
interpreting said provision that “if one is elected representative to
serve the unexpired term of another, that unexpired term, no
matter how short, will be considered one term for the purpose of
computing the number of successive terms allowed.”
The Comelec en banc ruled in favor of Talaga which reversed the
ruling of the 1st division and held that – 1) Talaga was not elected
for 3 consecutive terms because he did not win the 11 May 1998
elections; 2) that he was installed only as mayor by reason of his
victory in the recall elections; 3) that his victory in the recall
elections was not considered a term of office and is not included in
the 3-term disqualification rule and finally 4) that he did not fully
serve the 3 consecutive term. His loss in the 11 May 1998
elections is considered an interruption in the continuity of his
service as Mayor of Lucena City. ISSUE: Was Talaga
disqualified to run for Mayor of Lucena City in the 14 May 2001
elections?
In holding the qualifications of Talaga, the Court reiterated its
ruling in Borja that 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 considering that the continuity
of his mayorship was disrupted by the defeat in the 1998 elections
which is considered as an interruption in the continuity of service.
The Court further held that the comment of Fr. Bernas is
pertinent only to member of the HR there being no recall
elections provided for members of Congress.
In Lonzanida v. Comelec and Lu 28 311 SCRA 602 (July
1998), Lonzanida was elected and served 2 consecutive terms as
municipal mayor of San Antonio, Zambales, prior to the 08 May
1995 elections. In the May 1995 elections, Lonzanida ran for the
same elective post and was again proclaimed winner. He assumed
office and discharged the duties thereof. His proclamation in 1995
was contested by his then opponent Juan Alvez who filed an
election protest before the RTC of Zambales which rendered a
decision declaring a failure of elections rendering the result for the
office as null and void. The office of the mayor was then declared
vacant. Both parties appealed to the Comelec and on 13 Nov.
1997, it resolved the election protest filed by Alvez in his favor
after determining that Alvez garnered the plurality of votes. The
Comelec issued a writ of execution ordering Lonzanida to vacate
the post to which he obeyed and Alvez assumed for the remainder
of the term.
Lonzanida again filed his certificate of candidacy for Mayor in the
11 May 1998 and his opponent timely filed a petition to disqualify
him for the same post. ISSUE: Whether Lonzanida’s assumption
of office from May 1995 to March 1998 may be considered as
service of one full term for the purpose of applying the 3-term
limit for elective local government officials. It was held that
Lonzanida is still qualified to run for mayor and held that the 2-
Page 28
rquisites for the application of the 3-term limit is wanting. First,
petitioner cannot be considered as having been elected to the post
in the May 1995 elections, and second, the petitioner did not fully
serve the 1995-1998 mayoralty term by reason of involuntary
relinquishment of office.
As repeatedly ruled by the SC, 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 BOC, he is only a presumptive winner
who assumes the office subject of the final outcome of the
election protest.”
Another issue raised in Lonzanida is that the Comelec already
lost jurisdiction over the disqualification case when he was
proclaimed as winner and that jurisdiction is already with the
RTC for QW. The SC reiterated its ruling in Trinidad v.
Comelec 288 SCRA 76 (1998) that pursuant to Sec. 6 of RA 6646,
the proclamation nor 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 resolve it on the merits.(Also ruling in Dizon
v. Comelec 577 SCRA 589).
Borja v. Comelec 295 SCRA 157 (1998), the SC ruled on the
issue on whether a VM who succeeds to the office of mayor by
operation of law and serves the remainder of the term is
considered to have served a term in that office for the purpose of
the 3-term limit. The SC upheld the decision of the Comelec that
succession for the expired term is not the service contemplated as
would disqualify the elective official from running for the same
elective post. The purpose of this provision is to prevent a
circumvention of the limitation on the number of terms an elective
local official may serve. Conversely, if he is not serving a term
for which he was elected as he was simply continuing the service
of the official he succeeds, such official cannot be considered to
have fully served the term notwithstanding his voluntary
renunciation of office prior to his expiration. (Asked in the 2001
BAR)
In applying said policy, the following situations (tenures in office)
are NOT considered service of term for purpose of applying the 3-
term limit –
 officer fills up a higher office by succession/operation
of law
 officer is suspended from office (failed to serve full
term/involuntary)
 officer unseated, ordered to vacate by reason of an
election protest case
 officer serving unexpired term after winning in the
recall elections;
In Ong vs. Alegre 479 SCRA 473 – A petition for
disqualification was filed against Francis Ong for having violated
the 3-term limit rule for having served as mayor of San Vicente
Camarines Norte in the May 1995, 1998 & 2001 elections. The
controversy revolves around the 1998-2001 mayoral term wherein
the election protest filed by Alegre was promulgated after the
term of the contested office has expired.
The question for consideration is whether or not the assumption of
Francis Ong as Mayor from July 1, 1998 to June 30, 2001, may be
considered as one full term service in the context of the
ELECTION LAWS REVIEWER
consecutive term limit rule. The Court declared that such
assumption of office constitutes, for Francis, “service for the full
term” and should be counted as a full term served in
contemplation of the 3-term limit prescribed by the constitutional
and statutory provisions, barring elective officials from being
elected and serving for more than 3-consecutive terms.
The Court debunked the claim of Francis Ong that he was only a
presumptive winner in view of the ruling of the RTC that Alegre
was the real winning candidate in the light of his being proclaimed
by the MBOC coupled by his assumption of office and his
continuous exercise of the functions thereof from start to finish of
the term, should legally be taken as service for a full term in
contemplation of the 3-term rule. Lonzanida from which Ong
sought refuge is not applicable in view of the involuntary
relinquishment of office before the expiration of his term. (Same
ruling in Rivera III vs. Comelec 523 SCRA )
Aldovino Jr., vs. Comelec 609 SCRA 234 (2009) – Article X,
Section 8 – both by structure and substance – fixes an elective
official’s term of office and limits his stay in office to 3
consecutive terms as an inflexible rule that is stressed, no less, by
citing voluntary renunciation as an example of a circumvention.
The provision should be read in the context of interruption of
term, NOT in the context of interrupting the full continuity of the
exercise of the power of the elective position. The “voluntary
renunciation” it speaks of refers only to the elective official’s
involuntary relinquishment of office and loss of title to this office.
It does not speak of the temporary “cessation of the exercise of
power or authority” that may occur for various reasons, with
preventive suspension being only one of them. Quoting Latasa
– the law contemplates a rest period during which the local
elective official steps down from office and ceases to exercise
power or authority over the inhabitants of the territorial
jurisdiction of a particular government unit.”
DISQUALIFICATION CASES (EFFECTS)
Sec. 72 of the OEC and Section 6 of 6646 states: “any candidate
who 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 is voted for and received the
winning number of votes in such election, the Comelec 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 guilt is
strong.”
CAMPAIGN AND ELECTION PROPAGANDA
Election period is 120 days - 90 days before the date of the
election and 30 days thereafter. Campaign period for Pres., VP
and Senators starts 90 days before the date of the election, 45 days
for members of the HR and local candidate and 15 days for
barangay official, which excludes the day before and the day of
the elections.
Prohibited Activities – Section 80 BP881 – Election campaign
or partisan political activity outside campaign period. It shall be
unlawful for any person whether or not a voter or candidate, or for
any party or association of persons, to engage in an election
campaign or partisan political activity except during the campaign
period: Provided, That political parties may hold political
Page 29
convention or meetings to nominate their official candidates
within 30 days before the commencement of the campaign period
and 45 days for President and Vice-President.
RA 9006 (Fair Election Law), Section 3.Election propaganda
whether on television, cable television, radio, newspapers or any
other medium is hereby allowed for all registered political parties,
national, regional, sectoral parties or organizations participating
under the party-list elections and for all bona fide candidates
seeking national and local positions subject to the limitation on
authorized expenses of candidates and political parties, observance
of truth in advertising and to the supervision and regulation by the
Comelec.
Requirements for Published or Printed Broadcast Election
Propaganda. RA 9006 now allows paid political advertisements
for print and broadcast media provided the said advertisement
shall bear and be identified by reasonably legible or audible words
“ Political advertisement paid for” followed by the true and
correct name and address of the candidate or party for whose
benefit the election propaganda was printed or aired.
Free of charge – if broadcast is given free of charge the radio and
television station, it shall be identified by the words “airtime for
this broadcast was provided free of charge by” followed by the
true and correct name and address of the broadcast entity.
Provided that said print, broadcast donated shall not be published
or printed without the written acceptance of the candidate or
political party which acceptance shall be attached to the
advertising contract and submitted to the Comelec.
Guidelines whether by purchase or donation – Print
advertisements shall not exceed ¼ page in broadsheet and ½ page
in tabloids 3 x a week per newspaper, magazine or other
publications during the campaign period. (Section 6, RA 9006).
Television/Radio Advertisements – nation candidates/registered
political party shall be entitled to not more than 120 minutes of
TV advertisement and 180 minutes of radio. Local candidates not
more than 60 minutes of TV advertisement and 90 minutes of
radio.
Comelec Time and space – print space, Comelec shall pay just
compensation (PPI ruling) in at least 3 newspapers of general
circulation which Comelec shall allocate free of charge to the
national candidates. Broadcast network (radio and TV) free of
charge to Comelec.(Section 8, RA 9006)
Limitations In Broadcasting of Election Accounts – Comelec
shall ensure that radio and television or cable television
broadcasting entities shall not allow the scheduling of any
program or permit any sponsor to manifestly favor or oppose any
candidate or political party or unduly or repeatedly referring to or
including said candidate and/or political party in such program
respecting, however, in all instances the right of said broadcast
entities to air accounts of significant news or news worthy events
and views on matter of public interest.
Restrictions on Media Practitioners – any mass media
columnist, commentator, reporter or non-air correspondent or
personality who is a candidate for any elective office or is a
campaign volunteer for or employed or retained in any capacity by
any candidate or political party shall be deemed resigned, if so
required by their employer, or shall take a leave of absence from
his/her work as such during the campaign period. Any media
ELECTION LAWS REVIEWER
practitioner who is an official of a political party or member of the
campaign staff of a candidate or political party shall not use
his/her time or space to favor any candidate or political party
No movie, cinematography or documentary portraying
the life or biography of a candidate shall be publicly exhibited in a
theater, television stations or any public forum during the
campaign period or those portrayed by an actor or media
personality who is himself a candidate.
RA 9006, Section 5 Election surveys – refers to the
measurements of opinions and perceptions of the voters as regards
a candidate’s popularity, qualifications, platforms or matter of
public discussion in relation the election, including voters’
preference or candidates or publicly discussed issues during the
campaign period. The person or entity who publishes a survey is
required to include the following information:
 Name of the person, candidate, party or organization
who commissioned or paid the survey;
 Name and address of the person or polling firm from
who conducted the survey
 Period during which the survey was conducted,
methodology used, including the number or individual
respondents and the areas from which they were selected
and the specific questions asked
 Margin of error of the survey.
The survey together with the raw data gathered to support the
conclusions shall be available for inspection, copying and
verification by the Comelec, or by the registered political party or
any Comelec accredited citizen arm.
Posting of Campaign Materials – political parties and party-list
groups may be authorized by the Comelec common poster areas
for their candidates in not more than 10 public places such as
plazas, markets, barangay centers and the like, wherein, candidates
can post, display or exhibit election propaganda. The size of the
poster areas shall not exceed 12 x 16 feet or it equivalent. With
respect to independent candidates, may likewise avail of this but
the difference is merely on the size which shall not exceed 4 x 6
feet or its equivalent. (Section 9, RA 9006)
RA 9189, Section 15 – Regulation of Campaign Abroad – The use
of campaign materials, as well as the limits on campaign spending
shall be governed b the laws and regulations applicable to the
Philippines.
BP 881, Section 95 – Prohibited Contributions. No contribution
for purposes of partisan political activity shall be made directly or
indirectly by any of the following:
(a) Public or private financial institutions: Provided,
however, That nothing herein shall prevent the
making of any loan to a candidate or political party
by any such public or private financial institutions
legally in the business of lending money, and that
the loan is made in accordance with laws and
regulations and in the ordinary course of the
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 contract or
sub-contract to supply the government or any of its
divisions, subdivisions or instrumentalities, with
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 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 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 the one
year prior to the date of the election, have been
granted loans or other accommodations in excess
of 100K by the government or any of its divisions,
subdivisions or instrumentalities including
government owned or controlled corporations.
(f) Educational institutions which have received
grants of public funds to no less than 100K;
(g) Officials or employees in the Civil Service, or
members of the Armed Forces of the Philippines;
(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.
ABS-CBN 323 SCRA 811, the SC defined exit polls as a specie
of electoral survey conducted by qualified individuals or groups of
individuals for the purpose of determining the probable result of
an election by confidentially asking randomly selected voters
whom they have voted for, immediately after they have officially
cast their ballots. An absolute prohibition is unreasonably
restrictive because it effectively prevents the use of exit poll data
not only for election days of the elections, but also for long term
research. The concern of Comelec of a non-communicative effect
of the exit polls which is disorder and confusion in the voting
centers does not justify a total ban of the exist polls. Comelec
should instead set safeguards in place for those who intends to
conduct exit polls.
Section 5.5 of RA 9006 (Fair Elections Law) provides
for the requirements for the taking of an exit polls:
 pollsters shall not conduct their survey within 50 meters
from the polling place whether said survey is taken in a
home, dwelling place and other places;
 pollsters shall wear distinctive clothing;
 pollsters shall inform the voters that they may refuse to
answer; and
 the result of the exit polls may be announced after the
closing of the polls on election day, and must clearly
identify the total number of respondents, and the places
where they were taken.. Said announcement shall state
that the same is unofficial and does not represent a trend.
SOCIAL WEATHER STATION vs. COMELEC 357 SCRA
496 – This case involved the issue on election surveys. SWS is a
private non-stock, non-profit social research institution conducting
surveys in various fields, including economics, politics,
demography and social development, and thereafter, processing,
analyzing and publicly reporting the results thereof. On the other
hand, Kamahalan Publishing Corporation publishes the Manila
Standard, a newspaper of general circulation, which features
newsworthy items of information including election surveys.
ELECTION LAWS REVIEWER
Petitioners brought this action for prohibition to enjoin
the Comelec from enforcing par. 5.4 of RA 9006 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”.
The term “election surveys” is defined in par. 5.1 of the
law as follows ”Election surveys refer to the measurement of
opinions and perception of the voters as regards a candidate’s
popularity, qualification, platforms or a matter of public
discussion in relation to the election, including voters’ preference
for candidates or publicly discussed issues during the campaign
period”.
Petitioner SWS states that it wishes to conduct an
election survey throughout the period of the elections both at the
national and local levels and release to the media the results of
such survey as well as publish them directly. Kamahalan also
states that it intends to publish election survey results up to the last
day of the elections on May 14, 2001. HELD: Par. 5.4 constitutes
an unconstitutional abridgement of freedom of speech, expression
and the press. It is invalid because it imposes a prior restraint on
the freedom of expression and 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.
PREMATURE CAMPAIGNING
In Francisco Chavez v. Comelec et. al. G.R. No. 162777 31
August 2004, Chavez brought before the SC a Petition for
Prohibition with prayer for the issuance of a writ of preliminary
injunction as taxpayer and citizen asking the Court to enjoin the
Comelec from enforcing Section 21 of its Resolution No. 6520
dated 06 January 2004. (Sec. 32 provides: All propaganda
materials such as posters, streamers, stickers or paintings on walls
and other materials showing the picture or name of a person and
all advertisements on print, in radio or on television showing the
image or mentioning the name of a person, who subsequent to the
placement or display thereof becomes a candidate for public office
shall be immediately removed by said candidate and radio station,
print media or television station within 3 days after the effectivity
of these implementing rules; otherwise, he and the said radio
station, print media or television station shall be presumed to have
conducted premature campaigning in violation of Sec. 80 of the
OEC)
Chavez on various dates entered in formal agreement
with certain establishment to endorse their products and pursuant
thereto, 3 bill boards were set up on some strategic areas in Metro
Manila. Subsequently on 30 December 2003, Chavez filed his
certificate of candidacy for the position of Senator. On 06 January
2004, Comelec issued Resolution No. 6520 which contained
Section 32. Comelec directed Chavez to comply with the said
provision and replied how he may have violated the assailed
provision. Another letter was sent seeking exemption from the
application of Section 32, considering that the billboard adverted
to are mere product endorsements and cannot be construed as
paraphernalia for premature campaigning under the rules.
Comelec replied by informing him to remove or cover
the said billboards pending the resolution of the Comelec on his
request for exemption. Aggrieved, Chavez sent to the SC via a
Page 31
petition for prohibition seeking the said provision as
unconstitutional based on the following grounds –
 It was a gross violation of the non-impairment clause
 An invalid exercise of police power
 In the nature of an ex post facto law
 Contrary to the Fair Elections Act
 Invalid due to overbreadth
As to the 1st issue – is Section 32 of Comelec Resolution No. 6520
an invalid exercise of police power? Petitioner argues: the
billboards (even if it bears his name) do not at all announce his
candidacy for any public office nor solicit for such candidacy from
the electorate; they are mere product endorsements and not
election propaganda. Prohibition is not within the scope of power
of the Comelec.
RULING – police power is an inherent attribute of sovereignty, is
the power to prescribe regulations to promote the health, morale,
peace, education, good order or safety of the general welfare of the
people. The primary objective of the provision is to prohibit
premature campaigning and to level the playing field for
candidates of public office, to equalize the situation between
popular or rich candidates, on one hand and lesser-known or
poorer candidates, on the other, by preventing the former
from enjoying undue advantage in exposure and publicity on
account of their resources and popularity. This is a valid
reason for the exercise of police power as held in the
Philippines Press Institute v. Comelec case.
It is true that when petitioner entered into the contract or
agreements to endorse certain products, he acted as a private
individual and had all the right to lend his name and image to
these products. However, when he filed his COC for senator, the
billboards featuring his name and image assumed partisan political
character because the same directly promoted his candidacy. If
subject billboards were to be allowed, candidates for public office
whose name and image are used to advertise commercial products
would have more opportunity to make themselves known to the
electorate, to the disadvantage of other candidates who do not
have the same chance of lending their faces and names to endorse
popular commercial products as image models. Similarly, an
individual intending to run for public office within the next few
months, could pay private corporations to use him as their image
model with the intention of familiarizing the public with his name
and image even before the start of the campaign period. This,
without doubt, would be a circumvention of the rule against
premature campaigning..
Section 32 neither violated the non-impairment clause as this must
yield to the loftier purposes targeted by the Government. Equal
opportunity to proffer oneself for public office, without regard to
the level of financial resources one may have at his disposal, is a
vital interest to the public. The SC has stressed that contracts
affecting public interest contain an implied reservation of the
police power as a postulate of the existing legal order. This power
can be activated at anytime to change the provisions of the
contract, or even abrogate it entirely, for the promotion or
protection of the genera; welfare. Such an act will not militate
against the impairment clause. Which is subject to and limited by
the paramount police power.
On the issue that Sec. 32 of the Comelec Resolution is in the
nature of an ex post facto law. Not ex post facto – the offense as
expressly prescribed in Section 32, is the non-removal of the
ELECTION LAWS REVIEWER
described propaganda materials three (3) days after the effectivity
of the said Resolution. If the candidate for public office fails to
remove such propaganda materials after the given period, he shall
be liable under Section 80 of the OEC for premature campaigning.
Nowhere is it indicated in the said provision that it shall operate
retroactively.
On the issue that the provision was a violation of the Fair
Elections Act as billboards are already permitted as lawful election
propaganda. It was ruled that the provision does not prohibit
billboards as lawful election propaganda. It only regulates their
use to prevent premature campaigning and to equalize, as much as
practicable, the situation of all candidates by preventing popular
and rich candidates from gaining undue advantage in exposure and
publicity on account of their resources and popularity. Comelec
was only doing its duty under the law (Sec. 3 and 13 of the Fair
Elections Act on lawful propaganda)
Section 80 of the OEC provides “it shall be unlawful for any
person, whether or not a voter or candidate or for any party,
or association of persons, to engage in an election campaign or
partisan political activity, except during the campaign
period.”
Penera v. Comelec 599 SCRA 609. The issue on premature
campaigning was raised. Facts show that Penera and Andanar
were mayoralty candidates in Sta. Monica in the last May 14, 2007
elections. Andanar filed before the Office of the Regional
Election Director, Caraga Region, Region XIII, a petition for
disqualification against Penera for unlawfully engaging in election
campaigning and partisan political activity prior to the
commencement of the campaign period.
The Petition alleged that on 29 March 2007, a day before the start
of the authorized campaign period on 30 March 2007, Penera and
her partymates went around the different barangays in Sta.
Monica, announcing their candidacies and requesting the people to
vote for them on the day of the elections. Penera alleged that the
charge was not true although having admitted that a motorcade did
take place which was simply in accordance with the usual practice
in nearby cities and provinces, where the filing of COC was
preceded by a motorcade, which dispersed soon after the
completion of such filing. Penera in her defense cited Barroso v.
Ampig (385 Phil 2237; 328 SCRA 530) wherein the Court ruled
that a motorcade held by candidates during the filing of their
COC’s was not a form of political campaigning. Pending the
disqualification case, Penera was proclaimed as winner and
assumed office.
Comelec ruled that Penera engaged in premature campaigning in
violation of Section 80 and disqualified Penera from continuing as
a mayoralty candidate. The SC ruled no abuse of discretion on the
part of the Comelec and held that the conduct of a motorcade is a
form of election campaign or partisan political activity which fall
squarely under of Section 79 of the OEC.
Penera moved for reconsideration arguing that she was not yet a
candidate at the time of the supposed premature campaigning,
since under Section 15 of RA 8436 (the law authorizing the
Comelec to use an automated election system for the process of
voting, counting of votes, and canvasing/consolidating the results
of the national and local elections), as amended by RA 9369, is
not officially a candidate until the start of the campaign period.
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In granting Penera’s MR, the SC En Banc held that Penera did
not engage in premature campaigning and should thus, not be
disqualified as a mayoralty candidate. The Court said-
(a) The Court’s 11 September 2009 Decision (or
the assailed Decision) considered a person who files a certificate
of candidacy already a “candidate” even before the start of the
campaign period. This is contrary to the clear intent and letter of
Section 15 of RA 8436, as amended, which stated that a person
who files his certificate of candidacy will only be considered a
candidate at the start of the campaign period, and unlawful
acts or omission applicable to a candidate shall take effect only
upon the start of such campaign period. In applying the said
law –
(1) The effective date when partisan
political acts become unlawful
as to a candidate is when the campaign period
starts. Before the start of the campaign
period, the same partisan political acts are
lawful.
(2) Accordingly, a candidate is liable
for an election offense only
for acts done during the campaign period,
not before. In other words, election offenses
can be committed by a candidate only upon
the start of the campaign period. Before the
start of the campaign period, such election
offenses cannot be committed.
Since the law is clear, the Court has no recourse but to
apply it. The forum for examining the wisdom of the law, and
enacting remedial measures, is not the Court but the Legislature.
(b) Contrary to the assailed Decision, Section 15,
of RA 8436, as amended, does not provide that partisan political
acts done by a candidate before the campaign period are unlawful,
but may be prosecuted only upon the start of the campaign period.
Neither does the law state that partisan political acts done by a
candidate before the campaign period are temporarily lawful, but
becomes unlawful upon the start of the campaign period. Besides,
such a law as envisioned in the Decision, which defines a criminal
act and curtails freedom of expression and speech, would be void
for vagueness.
(c) That Section 15 of RA 8436 does not
expressly state that campaigning before the start of the campaign
period is lawful, as the assailed decision asserted, is no moment.
It is a basic principle of law that any act is lawful unless expressly
declared unlawful by law. The mere fact that the law does not
declare an act unlawful ipso facto means that the act is lawful.
Thus, there is no need for Congress to declare in Section 15 of RA
8436 that partisan political activities before the start of the
campaign period is lawful. It is sufficient for Congress to state
that “any unlawful act or omission applicable to a candidate shall
take effect only upon the start of the campaign period.” The only
inescapable and logical result is that the same acts, if done before
the start of the campaign period, are lawful.
(d) The Court’s 11 September 2009 Decision also
reversed Lanot v. Comelec (G.R. No. 164858, 16 November
2006). Lanot was decided on the ground that one who files a
certificate of candidacy is not a candidate until the start of the
campaign period. This ground was based on the deliberations of
ELECTION LAWS REVIEWER
the legislators who explained that the early deadline for filing
COC under RA 8436 was set only to afford time to prepare the
machine readable ballots, and they intended to preserve the
existing election period, such that one who files his COC to meet
the early deadline will still not be considered as a candidate.
When Congress amended RA 8436, Congress decided to expressly
incorporate the Lanot doctrine into law, thus, the provision in
Section 15, of RA 8436 that a person who files his certificate of
candidacy shall be considered a candidate only at the start of
the campaign period. Congress wanted to insure that no person
filing a certificate of candidacy under the early deadline required
by the automated election system would be disqualified or
penalized for any partisan political act done before the start of the
campaign period. This provision cannot be annulled by the Court
except on the sole ground of its unconstitutionality. The assailed
Decision, however, did not claim that this provision is
unconstitutional. In fact, the assailed Decision considered the
entire Section 15 good law. Thus, the Decision was self-
contradictory – reversing Lanot but maintaining the
constitutionality of the said provision.
In Lanot vs. Comelec 507 SCRA 114, the Court ruled that there
are two aspects of a disqualification case:
1) Electoral aspect determines whether the offender
should be disqualified from being a candidate or from
holding office. Proceedings are summary in character
and require only clear preponderance of evidence. An
erring candidate may be disqualified even without prior
determination of probable cause in a PI. The electoral
aspect may proceed independently of the criminal aspect
and vice-versa.
2) Criminal aspect determines whether there is probable
cause to charge a candidate for an election offense. If
there is probable cause, the Comelec through its Law
Department, files the criminal information before the
proper court. Proceedings before the proper court
demand a full-blown hearing and require proof beyond
reasonable doubt to convict. A criminal conviction shall
result in the disqualification of the offender, which may
even include disqualification from holding a future
public office.
CANVASSING BODIES
Section 221, BP 881/RA 6646, Section 20 - Boards of Canvassers
(Local Boards). There shall be a board of canvassers for each
province, city and municipality as follows:
(a) Provincial Board of Canvassers – The provincial
board of canvassers shall be composed of the
provincial election supervisor or a lawyer in the
regional office of the Commission, as chairman, the
provincial fiscal, as vice-chairman, and the
provincial superintendent of schools as member.
(b) City Board of Canvassers – The city board of
canvassers shall be composed of the city election
registrar or a lawyer of the Commission, as
chairman, the city fiscal, as vice-chairman, and the
city superintendent of schools, as member. In cities
with more than one election registrar, the
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 Commission shall designate the election registrar as
chairman.
(c) Municipal Board of Canvassers. – The municipal
board of canvassers shall be composed of the
election registrar or a representative of the
Commission, as chairman, the municipal treasurer,
as vice-chairman and the most senior district school
supervisor or in his absence a principal of the
school district or the elementary school, as
member.
The proceedings of the board of canvassers shall be open and
public.
BP881, Section 222. Relationship with Candidates and other
members of the Board.The chairman and the members of the
boards of canvassers shall not be related within the 4 th civil degree
of consanguinity or affinity to any of the candidates whose votes
will be canvassed by the said board, or to any member of the same
board.
BP881, Section 224. Feigned Illness. Any member of the board of
canvassers feigning illness in order to be substituted on election
day until the proclamation of the winning candidates shall be
guilty of an election offense.
RA 8436, Section 23 – National Board of Canvassers for Senators
– The chairman and members of the Commission on Elections
sitting en banc, shall compose the national board of canvassers for
senators. It shall canvass the results for senators by consolidating
the results contained in the data storage devices submitted by the
district, provincial and city boards of canvassers, of those cities
which comprise one or more legislative districts. Thereafter, the
national board shall proclaim the winning candidates.
Section 30, RA 7166 – Congress as the National Board of
Canvassers for the election of President and Vice-President:
Determination of Authenticity and Due Execution of Certificates
of Canvass. –
1) Congress for Pres. & VP (Sec. 4, Article VII)
2) Comelec – Senators and Regional Officials –
3) PBC – Members of the HR and provincial officials
(composed of the PES, Provincial Prosecutor and
provincial official of the DepEd
4) District BOC in each legislative district in MM –
members of the HR and municipal officials
5) City and MBOC – member of the HR, city and
municipal officials composed of the city or municipal
EO, City Prosecutor and DepEd Superintendent
RA 9189, Section 18(4) – A Special Board of Canvassers
composed of a lawyer preferably of the Commission as chairman,
a senior career office from any of the government agencies
maintaining a post abroad and, in the absence of another
government officer, a citizen of the Philippines qualified to vote
under this Act deputized by the Commission, as vice-chairman
and member secretary, respectively, shall be constituted to canvass
election returns submitted to it by the Special Boards of Elections
Inspectors. Xxx xxx “The Certificates of Canvass and the
accompanying Statements of Votes as transmitted via facsimile,
electronic mail and any other means of transmission equally safe,
secure and reliable shall be the primary basis for the national
canvass.
ELECTION LAWS REVIEWER
CERTIFICATE OF VOTES, STATEMENT OF VOTES,
ELECTION RETURNS AND DISTRIBUTION
Certificate of Votes – is an election document issued by the BEI’s
after the counting and announcement of the results and before
leaving the polling place upon request of the accredited watcher.
It shall contain the number of votes obtain by each candidate
written in words and figures, precinct #, name of the city or
municipality signed and thumb marked by each member of the
board.
Typoco vs. Comelec 614 SCRA 391 – In Garay v. Comelec 261
SCRA 222 (1996) the Court held that “(a) certificate of votes does
not constitute sufficient evidence of the true and genuine results of
the election; only election returns are, pursuant to Sections 231,
233-236 and 238 of BP881.” Again in De Guzman v. Comelec
426 SCRA 698 (2004) the Court stated that, in an election contest
where the correctness of the number of votes is involved, the best
and most conclusive evidence are the ballots themselves; where
the ballots can nor be produced or are not available, the election
returns would be the best evidence.”
Doromal vs. Biron/Comelec 613 SCRA 160 (2010) – the
certificate of votes, which contains the number of votes obtained
by each candidate, is issued by the BEI upon the request of the
duly accredited watcher pursuant to Section 16 of RA 6646.
Relative to its evidentiary value, Section 17 of RA 6646 provides
that Sections 235 and 236 of BP 881 notwithstanding, the
Certificate of Votes shall be admissible in evidence to prove
tampering, alteration, falsification or any anomaly committed in
the preparation of the election returns concerned, when duly
authenticated by at least two members of the BEI who issued the
certificate. Failure to present the CV shall however not bar the
presentation of other evidence to impugn the authenticity of the
ER. It cannot be a valid basis of canvass.
Purpose of requiring authentication of at least 2 members of the
BOC – to safeguard the integrity of the certificate from the time it
is issued by the BEI to the watcher after the counting of votes at
the precinct level up to the time that it is presented to the board of
canvassers to proved tampering.
FUNCTIONS OF THE CERTIFICATE OF VOTES
 Prevent or deter the members of the BEI or other official
from altering the statement because they know of the
existence of such certificate
 To advise the candidate definitely of the number of his
votes so that in case the election statement submitted to
the BOC does not tally with the certificate in his hands,
he may ask that the other authentic copies of the same be
used for the canvass
 To serve as evidence of fraud in election protest cases
and in subsequent prosecution of the election offenses
against those liable therefore.
Statement of Votes – is a tabulation per precinct of the votes
obtained by the candidates or reflected in the ER.
Certificate of Canvass – is based on the SV and which serves as
basis for proclamation.
DISPOSITION OF ELECTION RETURNS
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Election Returns and Distribution – RA 8173 amending Section 27
of RA 7166, provides that in the election for Pres., VP, Senators
and members of the HR, the ER shall be distributed as follows -
 1st CBO or MBOC
 2nd congress, directed to the Pres. of the Senate
 3rd Comelec
 4th Dominant majority party as may be determined by
the Comelec in accordance with law
 5th Dominant minority party as may be determined by
Comelec in accordance with law
 6th Citizens Arms authorized by the Comelec to conduct
an unofficial count to be deposited inside the ballot box.
For Local officials – (1) CBOB or MBOC (2) Comelec (3) PBOC
(4) DMP (5) DMP (6) Citizen’s Arms for unofficial count (7)
inside ballot box.
Petition to Declare a postponement, failure or annulment of
elections and call for a special elections in accordance with
Sections 5,6, & 7 of the OEC as amended by Sec. 4 of RA 7166.
Sec. 5 of the OEC provides for the grounds for
declaring a postponement of elections that is when for -
 any serious cause such as violence,
 terrorism,
 loss or destruction of election paraphernalia or records,
 FM and other analoguous circumstances of such a
nature that the holding of a HOPE-FRECRE should
become impossible in any political subdivision.
Jurisdiction - the Commission en banc may “motu propio” or
upon a verified petition by any interested party, and after due
notice and hearing, whereby all interested parties are afforded
equal opportunity to be heard, shall postpone the election to a date
which is reasonably close to the date of the election not held,
suspended or which resulted to a failure to elect but not later than
30 days after the cessation of the cause for such postponement or
suspension of the election or failure to elect.
Sec. 6 on the other hand, prescribes the conditions for
the exercise of the power to declare a Failure of Elections. As
reiterated in Dibaratun vs. Comelec 611 SCRA 367, citing
Banaga Jr. v. Comelec 336 SCRA 701 (2000) also in Canicosa
v. Comelec 282 SCRA 517- to declare a failure of elections,
either of these three (3) instances should be present
conformably with Section 6 of the OEC –
 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;
 the election in any polling place has been suspended
before the hour fixed by law for the closing of voting on
account of FM, terrorism, fraud or other analogous
causes
 after the voting and during the preparation and
transmission of the ER or in the custody of canvass
thereof, such election results in a failure to elect on the
same grounds.
Based on the foregoing provisions, two (2) conditions must
concur to declare a failure of elections –
ELECTION LAWS REVIEWER
 no voting has taken place in the precincts concerned on
the date fixed by law or, even if there was voting the
election nevertheless resulted in a failure to elect and
 the votes not cast would affect the results of the
elections (Carlos. V. Angeles)
In the same case of Coquilla v. Comelec, the SC stressed that
“what is common in these three instances is the resulting failure to
elect. In the first instance, no election was held, while in the
second, the election is suspended. In the third instance,
circumstances attending the preparation, transmission, custody or
canvas of the election returns cause a failure to elect. And, the
term failure to elect means nobody emerged as a winner.”
Procedural Rules - On the basis of a verified petition by any
interested party and after due notice and hearing, the Comelec may
call for the holding or continuation of the election not held,
suspended or which resulted in a failure to elect on a date
reasonably close to the date of the election not held, suspended or
which resulted in a failure to elect but not later than 30 days after
the cessation of the cause of such postponement or suspension of
the election or failure to elect.
Sec. 4 of RA 7166 (An Act Providing for the Synchronized
National and Local Elections) provides that any declaration of
postponement, failure of election and calling for a special
elections as provided in Section 5,6, & 7 shall be decided by the
Commission sitting en banc by a majority vote of its members.
This power is exclusively vested in the Comelec as ruled in the
case of Sanchez v. Comelec 193 SCRA 849.
Loong v. Comelec 257 SCRA 1, a petition to declare failure of
elections/annulment of elections on the ground of massive fraud in
some municipalities was filed before proclamation.. Comelec
dismissed the petition for having been filed out of time since it
was filed only after petitioners realized that the annulment of
election will wipe out their lead. HELD: It was ruled that the
Comelec Resolution dismissing the petition was arbitrary as no
law provided for a reglementary period within which to file a
petition for annulment of elections if there is no proclamation yet.
Canicosa v. Comelec 282 SCRA 512, Canicosa filed with the
Comelec a Petition to declare failure of elections and to declare
null and void the canvass and proclamation based on the following
grounds (names of the RV did not appear on the list, padlocks
were not self locking among other) which was dismissed by the
Comelec en banc on the ground that the allegations therein did not
justify the declaration of failure of elections.
Canicosa insists that itswas error on the part of Comelec
sitting en banc to rule on his petition as it should have first been
heard by a division. The SC held that the matter relating to the
declaration of failure of elections or the allegations raised by
Canicosa did not involve an exercise of QJ or adjudicatory
functions. It involves an administrative function which pertains to
the enforcement and administration of all laws and regulations
relative to the conduct of elections.
Pasandalan vs. Comelec, et. al., G.R. No. 150312 July 18, 2002,
the SC held that a petition for declaration of failure of elections
is an “extraordinary remedy” and therefore the petition must
specifically allege the essential grounds that would justify the
same. Otherwise, the Comelec can dismiss the petition
outright for lack of merit and no grave abuse of discretion can
be attributed to it. The Comelec is mandated to exercise this
Page 35
power with utmost circumspect to prevent disenfranchising voters
and frustrating the electorate’s well.”
In this case, Pasandalan filed a petition for declaration of
failure of election on the ground that while voting was going on
Cafgu’s indiscriminately fired their firearms causing the voters to
panic and leave the polling places without casting their votes and
taking advantage of the situation, the supporters of his opponent
took the official ballots and filled them up with his name, the
BEI’s failed to affix their initials at the back of several official
ballots. Pasandalan , on the basis of the affidavits of his own
poll watchers, insists that a technical examination of the
official ballots in the contested precincts be made which would
show that only a few persons wrote the entries, citing the case
ofTypoco v. Comelec 319 SCRA 498 and Basher v. Comelec
330 SCRA 736.
The SC held that the Comelec is not mandated to conduct a
technical examination before it dismisses a petition for
nullification of election when the petition is, on its face, without
merit. In the case of Typoco, petitioner buttressed his petition
with independent evidence that compelled the Comelec to conduct
a technical examination of the questioned returns. Typoco filed a
Motion to Admit Evidence to prove that a substantial number of
election returns were manufactured and claimed that the returns
were prepared by only one person based on the report of a licensed
examiner of questioned documents who examined copies of the
election returns. Pasandalan failed to attach independent and
objective evidence other than the self-serving affidavits of his own
poll watchers.
In Basher, the fact that an election is actually held prevents as
a rule, a declaration of failure of elections, the Court, however,
can annul an election if it finds that the election is attended
with patent and massive irregularities and illegalities.In this
case, after a series of failed elections in Brgy. Maidan,
Municipality of Tugaya, Lanao del Sur during the 1997 Brgy.
Elections, the election was reset to 30 August 1997. Due to the
prevailing tension in the locality, the voting started only at around
9 p.m. and lasted until the early morning of the following day.
Basher filed a petition for the nullification of the election which
was dismissed by the Comelec on the ground that actual voting
had taken place. The SC overturned the Comelec ruling
because the election was unauthorized and invalid. The
electorate was not given sufficient notice that the election
would push through after 9pm of the same day. Moreover, the
voting did not comply with the procedure laid down by the
Comelec in its Resolution.
Banaga Jr. vs. Comelec 336 SCRA 701, the fact that a verified
petition has been filed does not mean that a hearing on the case
should first be held before Comelec can act on it. The petition
must show on its face that the conditions necessary to declare a
failure of elections are present.
Ampatuan et. al. v. Comelec/Candao, et. al., G.R. No. 149803,
January 31, 2002, private respondents filed a petition for
declaration of failure of elections in several municipalities in
Maguindanao. During the pendency of the hearing of said
petition, the Comelec proclaimed petitioners as winners for the
position of governor, vice-governor and board members.
Thereafter, the Comelec issued an order directing the
continuation of the hearing on the failure of elections and issued
an order outlining the procedure to be followed in the technical
ELECTION LAWS REVIEWER
examination. Petitioners, relying on the case of Typoco, Jr. v.
Comelec, contended that by virtue of their proclamation, the only
remedy left for private respondents is to file an election protest, in
which case, original jurisdiction lies with the regular courts and
that Comelec no longer has jurisdiction to conduct a technical
examination as it would defeat the summary nature of a petition
for declaration of failure of elections citing several rulings that an
election protest is the proper remedy for a losing candidate after
the proclamation of the winning candidates.
ISSUE: whether the Comelec was divested of its jurisdiction to
hear and decide a petition for declaration of failure of
elections after the winners have already been proclaimed.
HELD: It was ruled that the fact that the a candidate proclaimed
has assumed office does not deprive the Comelec of its authority
to annul any canvass and illegal proclamation. In this case, it
cannot be assumed that the proclamation of petitioners was legal
precisely because the conduct by which the elections were held
was put in issue by respondents in their petition for annulment of
election results and/or declaration of failure of elections. The
cases relied upon by petitioners that an election protest is the
proper remedy for a losing candidate after proclamation of the
winning candidate involved pre-proclamation controversies.
The SC made reference to its ruling in Loong v. Comelec that “ a
pre-proclamation controversy is not the same as an action for
annulment of election results, or failure of elections”. In pre-
proclamation cases, the Comelec is restricted to an examination of
the election returns on their face and is without jurisdiction to go
beyond or behind them and investigate election irregularities. The
Comelec is duty-bound to investigate allegations of fraud,
terrorism, violence and other analogous causes in actions for
annulment of election results or for declaration of failure of
elections conformably with the OEC. Accordingly, the Comelec,
in the case of actions for annulment of election results or
declaration of failure of elections, may conduct technical
examination of election documents and compare and analyze
voters’ signatures and thumbprints in order to determine whether
or not the elections had indeed been free, honest and clean.
Borja, Jr. v. Comelec 260 SCRA 604, a petition for declaration
of failure of elections and to nullify the canvass and proclamation
was filed by Borja wherein he alleged that there was lack of
notice of the date and time of canvass, there was fraud in the
conduct of the elections as several voters were disenfranchised,
presence of flying voters and unqualified members of the BEI.
The Comelec dismissed the petition ruling that the grounds relied
upon by Borja were ground proper only in an election contest. SC
upheld the decision of the Comelec.
PRE-PROCLAMATION CONTROVERSY
BP 881, Section 242 – The Commission shall have exclusive
jurisdiction of all pre=proclamation controversies. It may motu
propio and after due notice and hearing, order the partial or total
suspension of the proclamation of any candidate-elect or annual
partially or totally any proclamation, if one has been made, as the
evidence shall warrant in accordance with the succeeding sections.
Matalam v. Comelec 271 SCRA 733/BP 881 – a pre-
proclamation controversy is defined, as a general rule, any
question pertaining to or affecting the proceedings of the BOC
which may be raised by any candidate or any registered political
party or coalition of political before the board or directly with the
Comelec, on any matter raised under Sections 233 (when ER are
Page 36
delayed, lost or destroyed), 234 (material defects in the ER),
235 (when ER appear to be tampered with or falsified) and
236 (discrepancies in the ER) of the OEC in relation to the
preparation, transmission, receipt, custody and appreciation
of the ER and Certificate of Canvass.
Section 17, RA 6646, questions affecting the composition or
proceedings of the BOC may be initiated with the board or directly
with the Comelec. However, matters raised under Sec. 233 to 236
shall be brought in the first instance before the BOC only.
EXCEPTIONS: Section 15 of RA 7166 provides that for
purposes of the elections for Pres. and VP, Senators and members
of the HR, no Ppcases shall be allowed on matters relating the
P,T,R,C, and A of the ER or the certificate of canvass, as the case
may be. HOWEVER, this does not preclude the authority of the
appropriate canvassing body motu proprio or upon written
complaint of an interested person to correct manifest error in the
certificate of canvass or ER before it.
Sano Jr. vs. Comelec 611 SCRA 475 – It is settled that a pre-
proclamation controversy is summary in character; indeed, it is a
policy of the law that pre-proclamation be promptly decided, so as
not to delay canvass and proclamation. The board of canvassers
will not look into allegations of irregularity that are not apparent
on the face of ER’s that appear otherwise authentic and duly
accomplished.
Authority of the Comelec in PPC – the Commission exercises
authority to decide PPC in two instances –
 in appeals from the ruling of the BOC which is generally
of two types first type are n questions contesting its
composition or proceedings and appeal therefrom must
be taken by the contestant adversely affected within 3
days from such ruling .and the second type refers to
ruling on questions contesting ER. The party adversely
affected must immediately inform the board that he
intends to appeal from the ruling and the board shall
enter said information in the minutes of the canvass and
within 48 hours from the ruling, the adverse party must
file with the board a written and verified notice of
appeal, and within an unextendible period of 5 days
thereafter, he has to take the appeal to the Comelec
 in petitions directly filed with it.
Macabago v. Comelec 392 SCRA 178 – it was held that issues in
a PPC is properly limited to challenges aimed against the BOC
and proceedings before said board relative to particular ER to
which respondent should have made particular verbal objections
subsequently reduced in writing.
BP 881 Section 243.Comelec Rules of Procedure Rule 27 (4) -
SCOPE/ISSUES that may be raised in a PRE-
PROCLAMATION CONTROVERSY
 Illegal composition or proceedings of the BOC
 The canvassed ER are incomplete, contain material
defects, appear to be tampered with, or falsified or
contain discrepancies in the same returns or in other
authentic copies as mentioned in Sec. 233-236
 The ER were prepared under duress, threats, coercion or
intimidation or they are obviously manufactures or not
authentic – in Ocampo v. Comelec 235 SCRA 436, it
ELECTION LAWS REVIEWER
was held that this fact must be evident from the face of
the said document. In the absence of a strong evidence
establishing spuriousness of the returns, the basic rule is
that the ER shall be accorded prima facie status as bona
fide reports of the results of the count of the votes which
shall prevail for purposes of canvassing and
proclamation.
 When substitute or fraudulent returns in controverted
polling places are canvassed, the result of which
materially affect the standing of the aggrieved candidate.
(Sec. 243)
PROCEDURAL REQUIREMENTS IN A PRE-
PROCLAMATION CONTROVERSY
Sec. 20 of RA 7166 (repealing Sec. 245 OEC) provides
for the mandatory two-step rule or requirement of verbal objection
to the inclusion of the ER and to be formalized in writing within
24 hours. Failure to observe such rule is fatal to a candidate’s
cause, leaving him with no other remedy except an EP. This
cannot be cured by instituting a petition directly filed with the
Comelec under Sec. 241
Sandoval v. Comelec 323 SCRA 407, it was stressed that
Comelec exercises exclusive jurisdiction and may motu propio or
upon verified petition, and after due notice and hearing, order the
partial or total suspension of the proclamation of the candidate
elect or annul partially or totally any proclamation, if one has been
made, as the evidence shall warrant in accordance with Sec. 242 of
the OEC.
Velayo v. Comelec 327 SCRA 713 – a PPC is summary in nature,
administrative in character and which is filed before the BOC. It
was ruled that while it is true that RA 7166 provides for summary
proceedings in PP cases and does not require a trial type hearing,
nevertheless, summary proceedings cannot be stretched as to mean
ex-parte proceedings.
In Velayo case, respondent objected to the inclusion of two
(2)ER’s which did not contain a vote for respondent being
statistically improbable which was overruled by the BOC. It was
ruled that it is possible for a candidate to get zero votes in one or
few precincts. The bare fact that a candidate receive zero votes in
1 or 2 precincts can not support a finding that the ER are
statistically improbable. (Exception to the Lagumbay Doctrine)
Lagumbay v. Comelec 16 SCRA 175 (1966) - The Lagumbay
doctrine isthe prevailing case on statistical improbability which
states that where there exists uniformity of tallies in favor of
candidates belonging to one party and the systematic blanking out
of the opposing candidates as when all the candidates of one party
received all the votes, each of whom exactly the same number, and
the opposing candidates got zero votes, the election returns are
obviously manufactures, contrary to al statistical improbabilities
and utterly improbable and clearly incredible.
In Ocampo v. Comelec 325 SCRA 636, it was reiterated that if
only one candidate obtained all the votes in some precincts, this is
not sufficient to make the election returns statistically improbable.
Imelda Dimaporo vs. Comelec/Vicente Belmonte 544 SCRA
381- (Sec. 15 of RA 7166)provides that for the purpose of the
elections for president, VP, senator & member of the HR, no pre-
proclamation cases shall be allowed on matters relating to the
preparation, transmission, receipt, custody and appreciation of ER
Page 37
or the certificate of canvass, as the case may be, except as
provided for in Sec. 30 hereof. However, this does not preclude
the authority of the appropriate canvassing body motu propio or
upon written complaint of an interested person to correct manifest
errors in the certificate of canvass or ER before it).
Rommel Munoz vs. Comelec, Carlos Balido Jr. 495 SCRA 407
- “Results of the Elections” Defined – the phrase “results of the
election” is not statutorily defined. However, as explained in
Lucero v. Comelec it means “the net result of the election the rest
of the precincts in a given constituency, such that if the margin of
a leading candidate over that of his closest rival in the latter
precincts is less than the total number of votes in the precinct
where there was failure of election, than such failure would
certainly affect “the results of the elections.”
EFFECT OF ASSUMPTION OF OFFICE OF CANDIDATE
ELECT/WHEN PPC IS NOT DEEMED TERMINATED – A
pre-proclamation controversy is no longer viable after the
proclamation of the winning candidates as the issues raised therein
may be more closely examined and better resolved in an EP.(RA
7166, Section 16 (2)).
However, this is only true where the proclamation is based on a
complete canvass and on the assumption that the proclamation is
valid where a proclamation is null and void, the proclamation is
no proclamation at all and the proclaimed candidate’s assumption
of office cannot deprive the Comelec of the power to declare such
nullity and annul the proclamation.
Section 16 of RA 7166 provides that all-pre-
proclamation cases pending before the Commission shall be
deemed terminated at the beginning of the term of office involved
and the rulings of the boards of canvassers concerned shall be
deemed affirmed, without prejudice to the filing of a regular
election protest by the aggrieved party. HOWEVER, proceedings
may continue when on the basis of the evidence thus far presented,
the Commission determines that the petition appears meritorious
and accordingly issued an order for the proceedings to continue or
when appropriate order has been issued by the SC in a petition for
certiorari
ELECTION PROTEST
An EP is a special statutory proceedings designed to
contest the right of a person, declared elected to enter upon and
hold office. It is strictly a contest between the defeated and
winning candidates as to who actually obtained the majority of the
legal votes and therefore, is entitled to hold office.
NATURE OF PROCEEDING - It is a formal judicial
proceedings that goes into the correctness of the counting and
appreciation of ballots at the precinct level were the parties are
allowed to present and examine evidence in detail.
WHO CAN FILE – can only be filed by a candidate who has
duly filed a certificate of candidacy and has been voted for.
PERIOD TO FILE – within 10 days from proclamation
GROUNDS – fraud, vote-buying, terrorism, presence of flying
voters, misreading and misappreciation of the ballots,
disenfranchisement of voters, other election irregularities.
ELECTION LAWS REVIEWER
Lucy Marie Torres-Gomez v. Eufrocino C. Codilla/ 668 SCRA
600 (2012)
Verification – (Defective verification) The verification of a
pleading is only a formal, not jurisdictional requirement. The
purpose of requiring the verification is to secure an assurance that
the allegations in the petition are true and correct, not merely
speculative. This requirements is simply a condition affecting the
form of pleadings, and non compliance therewith does not
necessarily render the pleading fatally defective.
Nature of Election controversy – An election controversy, by its
nature, touches upon the ascertainment of the people’s choice as
gleaned from the medium of the ballot. For this reason, an
election protest should jibe resolved with utmost dispatch,
precedence and regard of due process. Obstacles and
technicalities that fetter the people’s will should not stand in the
way of a prompt determination of election contests. Thus, rules on
the verification of protests should be liberally construed.
Court upheld the jurisdiction of HRET as the sole judge of all
contests relating to the election, returns and qualifications of the
member of the HRET.
Salvador D. Viologo, Sr., v. Comelec 658 SCRA 516 (2011)
Facts: Motion for reconsideration was denied by Comelec en banc
for lack of verification as required by Section 3, Rule 20 of the
Comelec Rules of Procedure on Disputes in an Automated
Election System and Section 3, Rule 19 of CRP.
Comelec Rules of Procedure are subject liberal construction.
In Quintos v. Comelec (440 Phil. 1045; 392 SCRA 489 (2002)),
this Court held that “the lack of verification of private
respondent’s Manifestation and Motion for Partial
Reconsideration is merely a technicality that should not defeat the
will of the electorate. The Comelec may liberally construe or even
suspend its rules of procedure in the interest of justice, including
obtaining a speedy disposition of all matter pending before the
Comelec.”
Nature of Election Protest: In Pacanan v. Comelec 597 SCRA
189 (2009), the Court, in clarifying the mandated liberal
construction of election laws held: An election contest, unlike an
ordinary civil action, is clothed with a public interest. The
purpose of an election protest is to ascertain that the candidate
proclaimed by the board of canvassers is the lawful choice of the
people. What is sought is the correction of the canvass of votes,
which was the basis of proclamation of the winning candidate. An
election contest therefore involves not only the adjudication of
private and pecuniary interests of rival candidates but paramount
to their claims is the deep public concern involved and the need of
dispelling the uncertainty over the real choice of the electorate.
And the court has the corresponding duty to ascertain, by all
means within its command, who is the real candidate elected by
the people.
Moreover, the CRP are subject to a liberal construction. This
liberality is for the purpose of promoting the effective and
efficient implementation of the objectives of ensuring the holding
of free, orderly, honest, peaceful and credible elections and for
achieving just, expeditious and inexpensive determination and
disposition of every action and proceeding brought before the
Comelec.
Page 38
This principle was reiterated in the more recent consolidated cases
of Tolentino v. Comelec 617 SCRA 575 (2010) and De Castro vs.
Comelec 617 SCRA 575, where the Court held that in exercising
its powers and jurisdiction, as defined by its mandate to ptoetect
the integrity of elections, the Comelec “must not be straijackedted
by procedural rules in resolving election disputes.”
Douglas R. Cagas v. Comelec/Bautista 663 SCRA 644 (2012) -
The Court has no power to review on certiorari an
interlocutory order or even a final resolution issued by a
Division of the Comelec. The governing provision is Section 7,
Article IX of the 1987 Constitution, which provides: Section 7.
Each Commission shall decide by a majority vote of all its
Members any case or matter brought before it within sixty days
from the date of its submission for decision or resolution. A case
or matter is deemed submitted for decision or resolution upon the
filing of the last pleading, brief, or memorandum required by the
rules of the Commission or by the Commission itself. Unless
otherwise provided by this Constitution or by law, any decision,
order, or ruling of each Commission may be brought to the
Supreme Court on certiorari by the aggrieved party within 30 days
from receipt of a copy thereof. This provision, although it confers
on the Court the power to review any decision, order or ruling of
the Comelec, limits such power to a final decision or resolution of
the Comelec en banc and does not extend to an interlocutory order
issued by a Division of the Comelec. Otherwise stated, the Court
has no power to review on certiorari an interlocutory order or even
a final resolution issued by a Division of the Comelec.
Maria Laarni L. Cayetano v. Comelec/Dante Tinga 648 SCRA
561 (2011) – The Supreme Court has no jurisdiction to review
an order, whether final or interlocutory even a final resolution
of a division of the Comelec – the Court can only review via
certiorari a decision, order, or ruling of the Comelec en banc in
accordance with Section 7, Article IX-A of the Constitution, a rule
which admits of exceptions as when the issuance of the assailed
interlocutory order is a patent nullity because of the absence of
jurisdiction to issue the same. (Court made reference to the case of
Repol v. Comelec 428 SCRA 321 (2004) which was affirmed in
Soriano Jr. v. Comelec 520 SCRA 88 (2007) and Blanco v.
Comelec 554 SCRA 755. Ruling in Soriano. . .“In the 2004 case
of Repol v. Comelec, the Court cited Ambil and held that this
Court has no power to review via certiorari an interlocutory order
or even a final resolution of a division of the Comelec. However,
the Court held that an exception to this rule applies where the
commission of grave abuse of discretion is apparent on its face. In
Repol, what was assailed was a status quo ante Order without any
time limit, and more than 20 days had lapsed since its issuance
without the Comelec First Division issuing a writ of preliminary
injunction. The Court held that the status quo ante Order of the
Comelec First Division was actually a temporary restraining order
because it ordered Repol to cease and desist from assuming the
position of municipal mayor of Pagsanghan, Samar and directed
Ceracas to assume the post in the meantime. Since the status quo
ante Order, which was qualified by the phrase “until further orders
from this Commission.” Had a lifespan of more than 20 days, this
Order clearly violates the rule that a temporary restraining Order
has an effective period of only 20 days and automatically expires
upon the Comelec’s denial of preliminary injunction.”
Ceriaco Bulilis v. Victorino Nuez, Presiding Judge of MCTC,
Ubay Bohol, Presiding Judge of RTC Branch 52, Talibon,
Bohol 655 SCRA 241 (2011) -Facts: Bulilis was proclaimed
winner for the elections for punong barangay. Opponent
Victorino Nuez filed an EP (for judicial recount and annulment of
ELECTION LAWS REVIEWER
proclamation) with MCTC. The counsel of Bulilis filed his brief
at 1:45pm on the date of preliminary conference and when the
case was heard at 2pm, Nuez moved in open court to be allowed to
present evidence ex parte since Bulilis only filed his brief on the
date of the preliminary conference which is contrary to Section 4,
Rule 9 of A.M. No. 08-4-15-SC which provides that the brief
should be filed at least one (1) day before the date of the
preliminary conference. Judge Garces granted the motion.
Bulilis filed MR which was denied by MCTC. Bulilis filed
certiorari with RTC which was dismissed on the ground that it is
Comelec that has exclusive jurisdiction in election cases involving
municipal and barangay officials. Hence, the petition for certiorari
with the SC.
(Rule 28, Sections 1 and 2 of CRP/Section 12 Amendments to
Rules 41, 45, 58 and 65 of the Rules of Court/Section 8, Rule 14
of Comelec CRP ). Based on these rules, the Court recognizes the
Comelec’s appellate jurisdiction over petitions for certiorari
against all acts or omissions of courts in election cases. Indeed, in
the recent case of Galang, Jr. v. Geronimo 643 SCRA 631
(2011), the Court had the opportunity to rule that a petition for
certiorari questioning an interlocutory order of a trial court in an
electoral protest was within the appellate jurisdiction of the
Comelec.
Since it is the Comelec which has jurisdiction to take cognizance
of an appeal from the decision of the RTC in election contests
involving elective municipal officials (Sec. 8 Rule 14 CRP), then
it is also the Comelec which has jurisdiction to issue a writ of
certiorari in aid of its appellate jurisdiction.
Although Galang involved a petition for certiorari of an
interlocutory order of the RTC in a municipal election contest, the
rationale for the above ruling applied to an interlocutory order
issued by a municipal trial court in a barangay election case.
Under Rule 14, Section 8 of A.M. No. 07-4-15-SC, decisions of
municipal trial courts in election contests involving barangay
officials are appealed to the Comelec. Following the Galang
doctrine, it is the Comelec which has jurisdiction over
petitions for certiorari involving acts of the municipal trial
courts in such election contests.
ROMEO M. JALOSJOS, JR v. COMELEC AND DAN
ERASMO, SR. 674 SCRA 530 (2012)
Demarcation line between the jurisdiction of the Comelec and
the House of Representatives:Facts: In May 2007 Jalosjos ran
for Mayor of Tampilisan, Zamboanga del Norte and won. While
serving as Tampilisan Mayor, he bought a residential house and
lot in Barangay Veterans Village, Ipil, Zamboanga Sibugay and
occupied it in September 2008. Eight months after, he applied
with the ERB of Ipil, Zamboanga Sibugay for the transfer of his
voters registration record which application was opposed by
Erasmo in a petition for exclusion before the MCTC of Ipil-
Tungawan. RTC ruled to exclude Jalosjos on the ground that
Jalosjos did not abandon his domicile im Tampilisan since he
continue even then to serve as its Mayor. Jalosjos appealed his
case to the RTC of Pagadian City which affirmed the MCTC
decision on September 11, 2009. Jalosjos elevated the matter to
the CA through a petition for certiorari with an application for the
issuance of a writ of preliminary injunction which was granted and
enjoined the courts below from enforcing their decisions, with the
result that his name was reinstated in the Barangay Veterans
Village’s list pending the resolution of the petition.
Page 39

On November 28, 2009, Jalosjos filed his CoC for the position of
representative of the Second District of Zamboanga Sibugay for
the May 10, 2010 elections. Erasmo filed a Petition to deny due
course to or cancel his CoC before the Comelec, claiming that
Jalosjos made material misrepresentations in his CoC when he
indicated in it that he resided in Ipil, Zamboanga Sibugay. The
Second Division of the Comelec issued a joint reso dismissing the
petition of Erasmo for insufficiency in form and substance. While
Erasmo’s MR was pending before the Comelec En Banc, the May
10, 2010 elections took place resulting in Jalosjos winning the
elections and was proclaimed on May 13, 2010.
In June 2, 2010, the CA rendered judgment in the voter’s
exclusion case before it holding that the lower courts erred in
excluding Jalosjos since he was qualified under the Constitution
and RA 8189. Erasmo filed a petition for review of the CA
decision before the SC. On the other hand, Comelec en banc
granted the MR of Erasmo and declared Jalosjos ineligible as he
did not satisfy the residency requirement since, by continuing to
hold the position of Mayor in Tampilisan, he should be deemed
not to have transferred his residence form that place to Ipil,
Zamboanga Sibugay.
While the Constitution vests in the Comelec the power to decide
all questions affecting elections, such power is not without
limitation. It does not extend to contests relating to the election,
returns, and qualifications of members of the HR and the Senate.
The Constitution vests the resolution of these contests solely upon
the appropriate Electoral Tribunal of the Senate or the HR.
The Court has already settled the question of when the jurisdiction
of the Comelec ends and when that of the HRET begins. The
proclamation of a congressional candidates following the election
divests Comelec of jurisdiction over disputes relating to the
election, returns and qualifications of the proclaimed
Representative in favor of HRET.
QUO WARRANTO
A petition for Quo Warranto refers to questions of disloyalty or
ineligibility of the winning candidate. It has the effect of
disqualifying a candidate to hold office towhich he is elected. Its
primordial objective is to prevent an elective official from
assuming office grounded on ineligibility. (Sec. 253 OEC)
NATURE OF PROCEEDING – it is a proceeding to unseat the
ineligible person from office, but not to install the protestant in his
place.
WHO CAN FILE – any voter.
PERIOD TO FILE- within 10 days from proclamation
Republic v. dela Rosa 232 SCRA 785, a QW assailing the public
official’s title and seeking to prevent him from holding office for
alienage is not covered by the 10-days period for appeal
prescribed in Section 253 of the OEC.
The distinction been an EP and QW as a remedy is not
the label given to it but the allegations therein stated. If a petition
alleges fraud and irregularity which vitiated the conduct of the
election, although entitled QW, is an EP and vice versa. In view
of these fundamental differences, an EP and QW cannot be availed
of jointly in the same proceeding. They may be filed separately
ELECTION LAWS REVIEWER
with the second and later case suspended until the earlier is
resolved. An action for QW cannot be converted into an EP.
Penera vs. Comelec 599 SCRA 609, is the well-established
principle that the ineligibility of a candidate receiving majority
votes does not entitle the candidate receiving the next highest
number of votes to be declared elected. In this case, the rules on
succession under Section 44 of the Local Government Code shall
apply which states that” if a permanent vacancy occurs in the
office of the Mayor, the Vice-Mayor concerned shall become the
mayor. A permanent vacancy arises when an elective local
official fills a higher vacant office, refuses to assume office, fails
to qualify or is removed from office, voluntarily resigned, or is
otherwise permanently incapacitated to discharge the functions of
his office.”
(Virgnio Villamor vs. Comelec & Amytis de Dios-Batao 496
SCRA 334) As a general rule, the proper remedy after the
proclamation of the winning candidate for the position contested
would be to file a regular election protest or a petition for QW.
The filing of an EP or a petition for QW precludes the subsequent
filing of a pre-proclamation controversy or amounts to the
abandonment of one earlier filed, thus, depriving the Comelec of
the authority to inquire into and pass upon the title of the protestee
or the validity of his proclamation. The reason is that once the
competent tribunal has acquired jurisdiction of an EP or a petition
for QW, all questions relative thereto will have to be decided in
the case itself and not in another proceedings. This procedure is to
prevent confusion and conflict of authority.
Basarte vs. Comelec 523 SCRA 76 – The prevailing rule that as
long as the returns appear to be authentic and duly accomplished
on their face, the BOC cannot look beyond or behind them to
verify allegations of irregularities in the casting or the counting of
the votes as it presupposes that the returns “appear to be authentic
and duly accomplished on their face”. This principle does not
apply in cases like the one at bar where there is a prima facie
showing that the return is not genuine, several entries having been
omitted in the assailed return.
JURSIDCITON OVER ELECTION PROTESTS AND QUO
WARRANTO
1) SUPREME COURT – sitting en banc as Presidential
Electoral Tribunal as sole judge of all contests relating to the
election, returns and qualification of Pres. and VP. Protest to be
filed 30 days from proclamation. Not subject to judicial review
(1987 Constitution). Joke on Supreme Court body.
2) SENATE ELECTORAL TRIBUNAL – for members of
senate as sole judge over all contest relating to the election, returns
and qualifications of its own members. Filed within 15 days from
date of proclamation. Not subject to judicial review except on
grave abuse of discretion amounting to lack or excess of
jurisdiction. (1987 Constitution)
3) HOUSE OF REPRESENTATIVES ELECTORAL
TRIBUNAL – for members of HR to be filed within 10 days from
proclamation.
Composition - Each electoral tribunal shall be composed of nine
members, three of whom shall be justices of the SC to be
designated by the CJ and the remaining 6 members of the senate
or HR, as the case may be, who shall be chosen on the basis of
their proportional representation from the political parties and the
Page 40
parties or organizations registered under the party list system,.
Senior justice shall be chairman (Art. VI, Sec. 17, 1987
Constitution) .
4) COMELEC – for regional, provincial and city officials filed
in 10 days. Subject to judicial review within 30 days from date of
receipt of decision by aggrieved party.
Article IX-C, Section 2(2) 1987 Constitution, Comelec
shall “Exercise exclusive jurisdiction over all contests relating to
the elections, returns and qualifications of all elective, regional,
provincial and city officials, and appellate jurisdiction over all
contests involving municipal officials decided by trial courts of
general jurisdiction, or involving elective barangay officials
decided by courts of limited jurisdictions. Decisions, final order,
or rulings of the Commission, on election contests involving
elective municipal and barangay offices shall be final, executory
and not appealable.”
Mendoza v. Comelec 616 SCRA 443 – There is a difference in
the result of the exercise of jurisdiction by the Comelec over
election contests. The difference inheres in the kind of jurisdiction
invoked, which in turn, is determined by the case brought before
the Comelec. When a decision of a trial court is brought before
the Comelec for it to exercise appellate jurisdiction, the division
decides the appeal but, if there is a motion for reconsideration, the
appeal proceeds to the banc where the majority is needed for a
decision. If the process ends without the required majority at the
banc, the appealed decision stands affirmed.
Upon the other hand, and this is what happened in the instant case,
if what is brought before the Comelec is an original protest
involving the original jurisdiction of the Commission, the protest,
as one whole process, is first decided by the division, which
process is continued in the banc if there is a motion for
reconsideration of the division ruling. If no majority decision is
reach in the banc, the protest, which is an original, shall be
dismissed. There is no first instance decision that can be deemed
affirmed.
Hence, if no decision is reached after the case is reheard, there are
two different remedies available to the Comelec, to wit (1) dismiss
the action or proceeding, if the case was originally commenced in
the Comelec; or (2) consider as affirmed the judgment or order
appealed from, in appealed cases. This rule adheres to the
constitutional provision that the Comelec must decide by a
majority of all its members.
Relampagos v. Cumba 243 SCRA 690 (1995) and in Carlos v.
Angeles 346 SCRA 571 (2000), Comelec is vested with the
power to issue writs of certiorari, prohibition and mandamus only
in aid of its appellate jurisdiction consistent with Section 50 of BP
881 and Article 2(1) of the Constitution. These ruling abandoned
the earlier ruling in Garcia vs. de Jesus 206 SCRA 779. It was
also declared that both the SC and Comelec has concurrent
jurisdiction to issue writs of certiorari, prohibition and mandamus
over decision of trial courts of general jurisdiction (RTC) in
election cases involving elective municipal officials. The Court
that takes jurisdiction first shall exercise exclusive jurisdiction
over the case. (Art. VIII 5(1) 1987 Constitution, Rule 65, Sec. 1)
ELECTION LAWS REVIEWER
Section 7, Article IX-A and Rule 3 of the Comelec Rules of
Procedure.The Comelec in the exercise of its QJ functions to
transact business “may sit en banc or in two divisions, and shall
promulgate rules and procedures” in order to expedite the
disposition of elections cases, including pre-proclamation
controversies and summon parties to a controversy pending before
it.”
The authority to hear and decide election cases, including pre-
proclamations controversies is vested with a division and the
Comelec sitting en banc does not have the authority over it in the
first instance. The Comelec en banc can exercise jurisdiction
only on Motions for Reconsideration of the resolution or
decision of the Comelec in division as a requirement for the
filing of a petition for certiorari by the aggrieved party with
the SC within 30 days from receipt of a copy thereof (Sec. 3
Art. IX-C).
Sec. 2 Rule 19 of the Comelec Rules of Procedure a motion to
reconsider a decision, resolution, order or ruling of a Division
shall be filed within five (5) days from the promulgation thereof.
Such motion, if not pro-forma, suspends the execution for
implementation of the decision, resolution, order or ruling and
would in effect, suspend the running of the period to elevate the
matter to the SC (Sec.4).
5) REGIONAL TRIAL COURT – exclusive jurisdiction over
all contests relating to the election, qualifications and returns for
municipal officials. Protest to be filed 10 days from date of
proclamation. Subject to appeal with Comelec within five (5)
days from receipt of decision. Decisions of the Comeledc en banc
on contest on appeal involving municipal and barangay officials
are final and executory except on grounds of grave abuse of
discretion within 30 days.
6) MUNICIPAL TRIAL COURT – exclusive jurisdiction over
all contests relating to the election, returns and qualifications for
barangay officials. Protest to be filed within 10 days from
proclamation. Appeal to the Comelec within 5 days from receipt
of the decision.
Calo v. Comelec 610 SCRA 342/Pecson v. Comelec 575 SCRA
634 – decisions of the courts in election protest cases, resulting as
they do from a judicial evaluation of the ballots and afull blown
adversarial proceedings. Should at least be given similar worth
and recognition as decisions of the board of canvassers. This is
especially true when attended by other equally weighty
circumstances of the case, such as the shortness of the term of the
contested elective office, of the case.
Mananzala vs. Comelec and Julie Monton 523 SCRA 31. -
Decisions, final orders or rulings of the Commission on Election
contests involving elective municipal and barangay offices shall
be final, executory and not appealable; All such election cases
shall be heard and decided in division, provided that motions for
reconsideration of decisions shall be decided by the Commission
en banc.
A decision of the RTC was raised on appeal which was heard by
the 2nd division which reversed the decision of the RTC. In his
MR petitioner argues that the MR filed with the former 2 nd
division “has thrown the whole case wide open for review as in
a trial de novo in a criminal case” yet Comelec en banc failed to
conduct a thorough review of the contested ballots. Election cases
Page 41
cannot be treated in a similar manner as criminal cases where,
upon appeal from a conviction by the trial court, the whole case is
thrown open for review and the appellate court can resolve issues
which are not even set forth in the pleadings.
Coquilla vs. Comelec, et. al. G.R. No. 151914, July 31, 2002,
the SC resolved the issue on whether the 30-day period for
appealing the resolution of the Comelec was suspended by the
filing of a motion for reconsideration by petitioner. Private
respondent in this case contends that the petition should be
dismissed because it was filed late considering that the Comelec
en banc denied petitioner’s motion for reconsideration for being
pro-forma and conformably with Sec. 4 of Rule 19 of the CRP,
the said motion did not suspend the running of the 30-day period
for the filing of the petition for certiorari under Sec. 7 Art. IX-A
of the Constitution.
The Comelec en banc ruled that the motion for reconsideration
was pro-forma on the ground that the motion was a mere rehash of
petitioners averments contained in his Verified Answer and
Memorandum, neither were new matters raised that would
sufficiently warrant a reversal of the assailed resolution of the
Second Division.
The SC ruled however that the mere reiteration in a motion for
reconsideration of the issues raised by the parties and passed upon
by the court does not make a motion pro-forma; otherwise, the
movant’s remedy would not be a reconsideration of the
decision but a new trial or some other remedy.
In explaining the purpose/objective of a motion for
reconsideration , the SC referred to its decision in Guerra
Enterprises Company Inc., v. CFI of Lanao del Sur 32 SCRA 314
(1970), where it held that the ends sought to be achieved in the
filing of a motion for reconsideration is “precisely to convince the
court that its ruling is erroneous and improper, contrary to the law
or the evidence, and in doing so, the movant has to dwell of
necessity upon the issues passed upon by the court. If a motion for
reconsideration may not discuss these issues, the consequence
would be that after a decision is rendered, the losing party would
be confined to filing only motions for reopening and new trial.
The SC further enumerated cases where a motion for
reconsideration was held to be pro forma:
 it was a second motion for reconsideration;
 it did not comply with the rule that the motion must
specify the findings and conclusions alleged to be
contrary to law or not supported by the evidence;
 it failed to substantiate the alleged errors;
 it merely alleged that the decision in question was
contrary to law
 or the adverse party was not given due notice thereof.
Under Rule 13, (1) of the Comelec Rules of
Procedure, a Motion for Reconsideration of an En Banc
Resolution is a prohibited pleading, except in election offense
cases (Sec. 261 of the OEC).
Angelia v. Comelec 332 SCRA 757, the SC addressed the issue
on whether a party can go to the SC via a Petition on Certiorari
under Rule 65 of the Rules of Court during the pendency of the
MR filed with the Comelec en banc. Angelia filed before the SC a
Petition for Certiorari to set aside the resolution of the Comelec en
banc annulling his proclamation alleging that he was not given due
ELECTION LAWS REVIEWER
notice and hearing. Without waiting for the resolution on his
motion, Angelia filed the instant petition on the sole assignment
of error that Comelec violated his constitutional right to due
process. Comelec raised that the petition should be dismissed for
being premature considering that the MR of petitioner was still
pending with the Comelec en banc and that he should have first
withdrawn the MR before raising the said resolution with the SC.
SC held that petitioner acted correctly in filing the petition
because the resolution of the Comelec en banc is not subject to
reconsideration, and therefore, any party who disagrees with it had
only one recourse, that was to file a petition for certiorari under
Rule 65 of the Rules of Civil Procedure. The filing of the petition
would in effect constitute as an abandonment of his MR with the
Comelec.
What is contemplated by the term “final orders, rulings and
decisions of the Comelec that may be reviewable by the SC on
Certiorari? The SC in Garces v. Court of Appeals 259 SCRA 99
(1996) and Filipinas Engineering & Machine Shop v. Ferrer 135
SCRA 25 (1985), the interpreted the term ”final orders, rulings
and decisions of the Comelec reviewable by the SC on certiorari
as provided by law are those rendered in actions or proceedings
before the Comelec and taken cognizance of by the said body in
the exercise of its quasi-judicial powers.
PRINCIPLES COMMON TO ALL ELECTION CONTESTS
1) WHO MAY FILE – a candidate who has duly filed a
COC and has been voted for.
2) Jurisdiction Allegations – (1) protestant was a candidate
who had duly filed a COC and had been voted for the
same office (2) that the protestee has been proclaimed
(3) that the petition was filed within 10 days after
proclamation (4) that fraud and election irregularities
vitiated the conduct of the elections and affected the
legality thereof.
Miguel v. Comelec 335 SCRA 172, the SC ruled that it is the
ministerial duty of the trial court to order the opening of the ballot
boxes, examination and counting of ballots deposited thereunder
whenever there is averment in an election protest that requires the
examination, scrutiny or counting of ballots as evidence. The
purpose of opening the BB is to determine, with the minimum
amount of protracted delay, the truthfulness of the allegations of
fraud and anomalies in the conduct of electoral exercise.
CERTIFICATE OF FORUM SHOPPING
The SC in Loyola v. CA 245 SCRA 477 (1995) and Lomarong
v. Dubguban 269 SCRA 624 (1997), it was ruled that the SC
Circular requiring that any complaint, petition or other initiatory
pleading must contain a non-forum certification applies to election
cases. The requirement is mandatory, not jurisdictional, non-
compliance therewith may warrant the dismissal of the election
case.
PAYMENT OF APPEAL/FILING FEES
Pacanan, Jr. vs. Commission on Elections, 597 SCRA 189
Aguilar v. Comelec 591 SCRA 491 - Petitioner Pacanan, Jr. and
private respondent Langi Sr., were candidates for mayor in the
municipality of Motiong, Samar during the May 14, 2007
Page 42
elections. Petitioner was proclaimed having garnered a total of
3,069 votes against private respondent’s 3,066 votes.
On May 25, 2007, private respondent filed an election
protest with the RTC which rendered a Decision on January 7,
2008 RTC declaring private respondent as winner with a plurality
of 6 votes. 3 days after or on January 10, 2008 petitioner filed a
notice of appeal and paid 3K appeal fee before the RTC and also
appealed the RTC decision to the Comelec. Out of the 3K appeal
fee required under Sec. 3, Rule 40 of the Comelec Rules of
Procedure, petitioner only paid 1K plus 200 to cover the legal
research/bailiff fees. On March 17, 2008 Comelec 1st division
issued on Order dismissing the appeal on the ground that
petitioner failed to pay the correct appeal fee within the 5-days
reglementary period which is a ground for the dismissal of the
appeal under Section 9(a), Rule 22 of the CRP. On March 28,
2008 petitioner filed a MR with the Comelec En Banc which
denied the resolution declaring that the appeal was not perfected
on time for non-payment of the complete amount of appeal and for
late payment as well, hence, did not acquire jurisdiction over the
appeal.
Before the SC is a petition for Certiorari raising that 1)
Comelec committed grave abuse of discretion amounting to lack
or excess of jurisdiction in holding that the correct appeal fee was
not paid on time; 2) In failing to consider, that assuming that the
correct appeal fee was not paid on time, the alleged non-payment
is not in anyway attributable to petitioner; 3) that assuming the
correct appeal fee was not paid on time, there are highly justifiable
and compelling reasons to resolve the subject case on the merit in
the interest of justice and public interest.
The SC noted that two (2) different tribunals earlier
require the payment of two different appeal fees for the perfection
of the appeals of election cases.
Sec. 3, Rule 22 of the CRP ( Appeals form decisions
of Courts in election Protest Cases), mandates that the notice of
appeal must be filed with 5-days after the promulgation of the
decision. On the other hand, Section 3 & 4 Rule 40 of the CRP
amended the amount of the appeal fees to 3.2K which should be
paid with the cash division of the Comelec.
On the other hand, Section 8 & 9, Rule 14 of A.M. No.
07-4-15 SC (Rules of procedure in Election Contests before the
Court Involving Elective Municipal and Barangay Officials
effective May 15, 2007) also provide the procedure of instituting
an appeal and the required appeal fees to be paid for the appeal to
be given due course.
This requirement in the payment of appeal fees had
caused much confusion, which the Comelec addressed through the
issuance of Comelec Res. No. 8486 on July 15, 2008. The
salient feature of the said resolution provide that “the appeal to
the Comelec of the trial court’s decision in election contests
involving municipal and barangay officials is perfected upon
the filing of the notice of appeal and payment of the 1K appeal
fee to the court that rendered the decision within the 5-day
reglementary period. The non-payment or the insufficient
payment of the addition appeal fee of 3.2K to the Comelec Cash
Division in accordance with Rule 40, Section 3 of the CRP, as
amended, does not affect the perfection of the appeal and does
not result in outright or ipso facto dismissal of the appeal.
ELECTION LAWS REVIEWER
Comelec 1st division gravely abused its discretion in
issuing the order dismissing the appeal taking notice that the
notice of appeal and the 1K appeal fee were, respectively filed and
paid with the MTC on April 21, 2008 which date the appeal was
perfected. Comelec Res. 8486 clarifying the rule on the payment
of appeal fees was issued only on July 15, 2008, or almost 3-
months after the appeal was perfected. Yet on July 31, 2008 or
barely two weeks after the issuance of Comelec Res. 8486, the
Comelec 1st division dismissed the appeal for non-payment of the
3.2K appeal fee.
Considering that petitioner filed his appeal months
before the clarificatory resolution on appeal fees, the appeal
should not be unjustly prejudiced by Comelec Res. No. 8486.
Fairness and prudence dictate the 1 st division should have first
directed petitioner to pay the additional appeal fee in accordance
with the clarificatory resolution. Instead it hastily dismissed the
appeal on the strength of the clarificatory resolution which had
taken effect only a few days earlier. (This unseemly haste is an
invitation to outrage.) Court further stressed the liberal
construction policy.
Villagracia v. Comelec 513 SCRA 655 (2007), while it is true
that a court acquires jurisdiction over a case upon complete
payment of the prescribed filing fee, the rule admits of exceptions,
as when a party never raised the issue of jurisdiction in the trial
court.
Gomez-Castillo v. Comelec 621 SCRA 499 – The period of
appeal and the perfection of appeal are not mere technicalities to
be so lightly regarded, for they are essential to the finality of
judgments, a notion underlying the stability of our judicial system.
The short period of 5-days as the period to appeal recognizes the
essentiality of time in election protests, in order that the will of the
electorate is ascertained as soon as possible so that the winning
candidate is not deprived of the right to assume office, and so that
any doubt that can cloud the incumbent of the truly deserving
winning candidate is quickly removed.
Zanoras v. Comelec G.R. No. 158610 November 12, 2004, the
mere filing of the notice of appeal was not enough. It should be
accompanied by the payment of the correct amount of appeal fee.
The payment of the full amount of the docket fee is an
indispensable step for the perfection of an appeal. (Rulloda v.
Comelec 245 SCRA 702)
Loyola v. Comelec 337 SCRA 134 (1997), the Court stressed that
there is no longer any excuse for shortcoming in the payment of
filing fees. The Court held that in the case at bar “any claim of
good faith, excusable negligence or mistake in any failure to pay
the full amount of filing fees in election cases which may be filed
after the promulgation of this decision is no longer acceptable
(March 25, 1977). The Loyola doctrine was reiterated in the
subsequent cases of Miranda v. Castillo 274 SCRA 503, Soller v.
Comelec 339 SCRA 684 hold that a court acquires jurisdiction
over any case only upon the payment of the prescribed docket fees
and errors in the payment of the filing fee is no longer allowed.
EXECUTIONS PENDING APPEAL
TEODORA SOBEJANA-CONDON V. COMELEC/LUIS
BAUTISTA/ROBELITO V. PICAR/WILMA P. PAGADUAN
678 SCRA 267 (2012)
Page 43
Executions Pending Appeal - There is no reason to dispute the
Comelec’s authority to order discretionary execution of judgment
in view of the fact that the suppletory application of the Rules of
Court is expressly sanctioned by Section 1, Rule 41 of the
Comelec Rules of Procedure. Under Section 2, Rule 39 of the
Rules of Court, execution pending appeal may be issued by an
appellate court after the trial court has lost jurisdiction. In Batul v.
Bayron 424 SCRA 26 (2004), the Court stressed the import of the
provision vis-à-vis election cases when we held that judgments in
election cases which may be executed pending appeal includes
those decided by trial courts and those rendered by the Comelec
whether in the exercise of its original or appellate jurisdiction.
Saludaga vs. Comelec 617 SCRA 601 – The discretion to allow
execution pending reconsideration belongs to the division that
rendered the assailed decision, order or resolution, or the Comelec
en banc, as the case may be – not to the presiding Commissioner.
A writ of execution pending resolution of the MR of a decision of
the division is not granted as a matter of right such that its
issuance becomes a ministerial duty that may be dispensed even
just by the Presiding Commission.
Calo v. Comelec 610 SCRA 342 – The relevant rule provides that
a motion for execution pending appeal filed by the prevailing
party shall contain a 3-day notice to the adverse party and
execution pending appeal shall not issue without prior notice and
hearing. The purpose of these requirements is to avoid surprises
that may sprung upon the adverse party who must be given time to
study and meet the arguments in the motion before a resolution by
the court. Where a party had the opportunity to be heard, then the
purpose has been served and the requirement substantially
complied with. In this case, even the Comelec admitted that
respondent was heard and afforded his day in court; hence, it
should not have annulled the RTC special order on said ground.
San Miguel vs. Comelec 609 SCRA 424 – The law provides that
the court “may” issue execution pending appeal. Evident from the
usage of the word “may”, the language of the subject provision
denotes that it is merely directory, not mandatory, for the trial
court to issue the special order before the expiration of the period
to appeal. The trial court may still thereafter resolve a motion for
execution pending appeal, provided: (i) the motion is filed within
the 5-day reglementary period; and (ii) the special order is issued
prior to the transmittal of the records of the Comelec.
Malaluan v. Comelec 254 SCRA 397, this was the first case
where a judge, acting without a precedent, granted the motion for
execution of its decision in an election protest case, pending
appeal. It was ruled that Sec. 2 Rule 39 of the Rules of Court
which allowed the RTC to order execution pending appeal upon
good reasons stated in a special order, may be made to apply by
analogy or suppletorily to election contest decided by it. The
posting of the supersedeas bond was considered good reasons by
the judge.
Camlian v. Comelec 271 SCRA, executions pending appeal must
be strictly construed against the movant as it is an exception to the
general rule on execution of judgments.
Ramas v. Comelec 286 SCRA 189, what may constitute “good
reasons’ for execution pending appeal
 The public interest involved or the will of the
electorate
ELECTION LAWS REVIEWER
 The shortness of the remaining period of the term of
the contested office
 The length of time that the election contest has been
pending.
The filing of a bond alone does not constitute good reasons.
Nevertheless, the trial court may require the filing of a bond as
condition for the issuance of the corresponding writ of execution
to answer for the payment of damages which the aggrieved party
may suffer by reason of the execution pending appeal.
Fernando U. Batul v. Lucilo Bayron, et. al. 424 SCRA 26,
execution pending appeal in the discretion of the courts applies
suppletorily in election cases including those involving city and
provincial officials to obviate a hollow victory for the duly elected
candidate as determined either by the Court or by Comelec. The
Comelec resolution granting execution pending appeal (by virtue
of its original exclusive jurisdiction over all contest relating to the
E, R and Q of provincial and city officials) was raised before the
SC arguing that Sec. 2 Rule 39 cannot be applied and the only
ground that will validly sustain execution of a decision by a
Comelec division pending reconsideration is when the MR is not
pro forma.
Case of Ramas did not declare that such remedy is exclusive only
to election contests involving elective municipal and barangay
officials. Sec. 1 of Rule 41of the Comelec Rules of Procedure
expressly provides that pertinent provisions of the Rules of Court
shall be applicable by analogy or in a suppletory character.
Navarosa v. Comelec 411 SCRA, the RTC in an election protest
case granted execution pending appeal by Esto after finding that
Esto won in the said election. In the same order the judge allowed
protestee Navaroza to stay the execution of the decision pending
appeal by filing a supersedeas bond in double the amount posted
by the protestant.. A Petition for Ceriorari was filed by Esto with
the Comelec where the Comelec 2 nd division affirmed the trial
court’s order granting execution pending appeal and nullified the
stay of the execution. The Comelec did not gravely abuse its
discretion as it is for Comelec in the exercise of its appellate
jurisdiction to issue the extraordinary writs of certiorari,
prohibition mandamus and injunction over all contest involving
elective municipal officials decided by the trial court of general
jurisdiction elevate on appeal, and NOT the trial court, that may
order the stay or restrain the immediate execution of the decision
pending appeal granted by the trail court of general jurisdiction in
an election contest.
Except when the trial court reversed itself in a MR of its
order granting immediate execution, it cannot later on stay or
restrain the execution thereof in the guise of allowing the losing
party to file a supersedeas bond. The issue before the trial court
where a motion for execution pending appeal is filed is to
determine whether or not there are “good reasons” to justify the
immediate execution pending appeal. The issue is not whether
there are good reasons to stay the immediate execution of the
decision pending appeal.
LIM VS.COMELEC ET.AL. G.R. NO. 171952 March 08,
2007; Torres vs. Abundo, Sr. 512 SCRA 556; - Before granting
a motion for execution pending appeal in election cases, the SC
laid down the following requisites –
(1) there must be motion by the prevailing party with notice
to the adverse party
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 (2) there must be good reasons for the execution pending
appeal
(3) the order granting execution pending appeal must state
the good reasons.
Good reasons (Fermo v. Comelec)
1) public interest involved or will of the electorate
2) shortness of the remaining term of the contested office
3) length of time that the election contest has been pending
Istarul vs. Comelec 491 SCRA 300 (2006) – the length of time
that the election protest has been pending, thus, leaving petitioner
only 21 months as the remaining portion of the term to serve as
mayor, does not constitute “good reasons” to justify execution
pending appeal. Referring to Fermo, the SC held that “shortness
of term”: alone and by itself cannot justify premature execution. It
must be manifest in the decision sought to be executed that the
defeat of the protestee and the victory of the protestant has been
clearly established.”
Trillanes IV. Vs. Pimentel, Sr. 556 SCRA 471 (relate to Rodolfo
Aguinaldo on the condonation issue) – The case against Trillanes
is not administrative in nature. And there is no “prior term’ to
speak of. In a plethora of cases, the Court categorically held that
the doctrine of condonation does not apply to criminal cases.
Election, or more precisely, election to office, does not obliterate a
criminal charge. Petitioners electoral victory only signifies
pertinently that when the voters elected him to the Senate, “they
did so with full awareness of the limitations on his freedom of
action and with the knowledge that he could achieve only such
legislative results which he could accomplish within the confines
of prison.
CAN DAMAGES BE AWARDED IN ELECTION PROTEST
CASES?
Malaluan vs. Comelec, the Court ruled that damages cannot be
granted in an election protest case ratiocinating that the provision
of law allowing damages under specific circumstances, more
particularly compensatory and actual damages is provided under
Article 2176 of the Civil Code which is appropriate only in
breaches of obligations in contracts and QC and on the occasion of
crimes and QD where the defendant may be held liable for
damages the proximate cause of which is the act or omission
complained of.
Therefore, the monetary claim of a party in an election case must
necessarily be anchored in contract, QC, or a tortiuos act or
omission of a crime in order to effectively recover actual or
compensatory damages. In the absence of any or all of these, the
claimant must be able to point out a specific provision of law
authorizing a money claim for election protest expenses against
the losing party.
The bonds or cash deposits required by the Comelec
Rules of Procedure are in the nature of filing fees not damages
SUBSTITUTION OF PARTIES IN AN ELECTION
PROTESTCASE
Fernando Poe v. Arroyo March 29, 2005, the Court resolved the
issue on whether the widow may substitute/intervene for the
protestant who die during the pendency of the latter’s protest case.
ELECTION LAWS REVIEWER
The fundamental rule applicable in a presidential
election protest is Rule 14 of the PET Rules which provides “only
the registered candidate for Pres. or VP of the Philippines who
received the 2nd and 3rd highest number of votes may contest the
election of the P and VP, as the case may be, by filing a verified
petition with the Clerk of the PET within 30 days after the
proclamation of the winner.
The Court made reference in its ruling in Vda de Mesa
v. Mencias where it rejected substitution by the widow or the heirs
in election contest where the protestant dies during the pendency
of the protest on the grounds that the heirs are not real parties in
interest and that a public office is personal to the public officer
and not a property transmissible to the heirs upon death. The
Court pursuant to Rule 3, Section 15 of the rules of Court,
however, allowed substitution and intervention upon the death of
the protestee but by a real party in interest, one who would be
benefited or injured by the judgment and entitled to avail of the
suit. In the Mencias and Lumogdnag v. Javier cases, the Court
permitted substitution by the VM since the VM is the real party in
interest considering that if the protest succeeds and the protestee is
unseated, the VM succeeds to the office of the mayor that
becomes vacant if the one duly elected cannot assume office.
The Court further held, that nobility of intentions is not the point
in reference in determining whether a person may intervene in an
election protest case.
PROSECUTION OF ELECTION CASES
Article IX-C Section 2(6) of the Constitution vests in the
Comelec the power and function to investigate and where
appropriate, prosecute cases of violations of election laws,
including acts or omissions constituting election frauds, offenses
and malpractices. This prosecutorial power of the Comelec is
reflected in Section 265 of BP 881. It is well settled that the
finding of probable cause in the prosecution of election offenses
rests in the Comelec’s sound discretion. (Garcia v. Comelec 611
SCRA 55 Jan. 2010)
Comelec v. Noynay, July 9, 1998, the Comelec resolved to file an
Information for violation of Section 261(i) of the OEC against
certain public school officials for having engaged in partisan
political activities which was filed by its Regional Director with
Branch 23 of RTC of Allen Northern Samar presided by Judge
Tomas B. Noynay. The judge ordered the records of the cases to
be withdrawn and directed the Comelec to file the cases with the
MTC on the ground that pursuant to Section 32 of BP 129 as
amended by RA 7691, the RTC has no jurisdiction over the cases
since the maximum imposable penalty in each of the cases does
not exceed 6 years imprisonment. The SC ruled that RA 7691 did
not divest the RTC of jurisdiction over election offenses which are
punishable with imprisonment of not exceeding 6 years. The
opening sentence of Section 32, provides that the exclusive
original jurisdiction of Metropolitan Trial Courts, MTC and
MCTC does not cover those criminal cases which by specific
provisions of law fall within the exclusive jurisdiction of the RTC
and of the SB, regardless of the penalty prescribed therefore.
Comelec vs. Espanol 417 SCRA 554, it was ruled that the
Comelec, thru its duly authorized legal officers, under Section 265
of the OEC, has the exclusive power to conduct preliminary
investigation of all election offenses punishable under the OEC
and to prosecute the same. The acts of these deputies within the
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lawful scope of their delegated authority are the acts of the
Comelec.
Garcia v. Commission on Elections 611 SCRA 55 – Generally,
the Court will not interfere with the finding of probable cause by
the Comelec absent a clear showing of grave abuse of discretion.
Pp. v. Inting July 25, 1990, Comelec is given exclusive authority
to investigate and conduct preliminary investigations relative to
commission of election offenses and prosecute the same. A
preliminary investigation conducted by the Provincial Election
Supervisor involving an election offense does not have to be
coursed through the Provincial Prosecutor before the RTC may
take cognizance of the investigation and determine whether or not
probable cause exist to issue a warrant of arrest. If the Provincial
Prosecutor performs any role at all as regards the prosecution of an
election case, it is by delegation or that he was deputized by the
Comelec.
Faelnar v. People 331 SCRA 429, (a) where the State Prosecutor,
or Provincial or City Prosecutor exercises the power to conduct
preliminary investigation of election offense cases and after the
investigation submits its recommendation to the Comelec, the
issue of probable cause is already resolved. The proper remedy
to question the said resolution is to file an appeal with the
COMELEC and the ruling of the Comelec on the appeal
would be immediately final and executory.
(b) If the preliminary investigation of the complaint for an election
offence is conducted by the Comelec, the investigation officer
prepares its recommendation to the Law Department which
department in turn makes its recommendation to the Comelec en
banc on whether there is probable cause to prosecute. It is the
Comelec en banc which determines the existence of probable
cause. The proper remedy of the aggrieved party is to file a
Motion for Reconsideration of such resolution. This effectively
allows for a review of the original resolution, in the same manner
that the Comelec on appeal, or motu propio, may review the
resolution of the State prosecutor, or Provincial or city fiscal.
(Take note that since this is an election offense a Motion for
Reconsideration of an En Banc resolution is allowed.)
Herman Tiu Laurel vs. RTC Judge of Manila Br. 10 and
Comelec, the SC upheld the power of Comelec to prosecute cases
of violations of election laws and further explained that there are
two (2) ways through which a complaint for election offenses
may be initiated.
(1) it may be filed by the Comelec motu propio or
(2) it may be filed via written complaint by any citizen
of the Philippines, candidate, registered political party, coalition of
political parties or organizations under the party-list system or any
accredited citizen arms of the commission.
Motu propio complaints may be signed by the Chairman
of the Comelec and need not be verified. But those complaints
filed by parties other than the Comelec must be verified and
supported by affidavits and other evidence.
The complaint shall be filed with the Comelec Law
Department or with the offices of the EO, PES or RED, or the
State Prosecutors, provincial or city prosecutors. Whether
initiated motu propio or filed with the Comelec by any party, the
complaint shall be referred to the Comelec Law Department for
investigation. Upon the direction of the Chairman, the PI may be
ELECTION LAWS REVIEWER
delegated to any lawyer of the Department, any RED or PES, or
any Comelec lawyer.
Comelec v. Silva Feb. 10, 1998, the SC settled the issue as to
whether the Chief State Prosecutor, who was designated by the
Comelec to prosecute election cases, has the authority to decide
whether or not to appeal from the orders of dismissal of the RTC.
It was held that the authority belongs to the Comelec and not the
prosecutor as the latter derive its authority from the Comelec and
not from their offices. Propriety dictates, that if the prosecutor
believes, after the conduct of the PI, that no probable cause
warrants the prosecution of the accused who have allegedly
violated Sec. 27 of RA 6646 (tampering of certificate of canvass),
the matter would have been discussed with the Comelec and if the
latter disagrees, seek permission to withdraw from the case.
Dino vs. Olivares 607 SCRA 251 (2009). The SC held that being
mere deputies or agents of the Comelec (with continuing
authority), provincial or city prosecutors deputized by it are
expected to act in accord with and NOT contrary to or in
derogation of its resolutions, directives or orders in relation to
election cases that such prosecutors are deputized to investigate
and prosecute. They must proceed within the lawful scope of their
delegated authority.
Such authority may be revoked or withdrawn anytime by the
Comelec, either expressly or impliedly, when in its judgment such
revocation or withdrawal is necessary to protect the integrity of
the process to promote the common good, or where it believes that
successful prosecution of the case can be done by the Comelec.
When the Comelec en banc directed the City Prosecutor of
Paranaque to transmit the entire records of the election offense
case, it had the effect of SUSPENDING THE AUTHORITY of
the City Prosecutor. Hence, the filing of the amended information
and the amended information themselves, is declared void and of
no effect.
Kilosbayan vs. Comelec 280 SCRA 892, Kilosbayan filed a
letter-complaint with the Comelec against incumbent officials
running for public elective office for violation of Sec. 261 of the
OEC alleging illegal disbursement of public funds and submitting
as evidence to support the complaint, published writings in
newspapers without any additional evidence to support the
newspaper articles on the argument that it was the Comelec’s
constitutional duty to prosecute election offenses upon any
information of alleged commission of election offenses. The
Comelec dismissed the complaint there being on probable cause
found. The SC rued that it is not the duty of the Comelec to
search for evidence to prove an election complaint filed before
it. The task of Comelec as investigator and prosecutor is not
the physical searching and gathering of proof in support of the
alleged commission of an election offense. The complainant
still has the burden to prove his complaint.
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