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OUTLINE OF ELECTION LAWS

Atty. Jocelyn Valencia


Part I.

Preliminaries
1. General Provisions
1987 PHILIPPINE CONSTITUTION

SUFFRAGE, OBJECTIVE
UNDERLYING PHILOSOPHY
CONSTITUTIONAL PROVISION
Art. III, Sec. 1 of the Constitution: The Philippines is a republican
state. Sovereignty resides in the people and all government authority
emanates from them.
SUFFRAGE
Means by which people express their sovereign judgment and its free
exercise must be protected especially against the purchasing power of
the peso. (Nolasco v. Comelec 275 SCRA 763)
It is both a right and a privilege. Right because it is the expression of
the sovereign will of the people. A 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.
It is the right to vote in the election of officers chosen by the people
and in the determination of questions submitted to the people. It
includes:
1.
Election
2.
Plebiscite
3.
Initiative and
4.
Referendum
Nature & Basis
Art. II, Section 1. The Philippines is a democratic and republican
state. Sovereignty resides in the people and all government authority
emanates from them.
Article V 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.
Nolasco v. Comelec,
27 SCRA 763
A disqualification case was filed by Alarilla against Meycauayan,
Bulacan Mayor-elect Florentino Blanco for alleged performing acts
which are grounds for disqualification under the Omnibus Election
Code. The COMELEC decided against Blanco. A reconsideration was
moved by Blanco in the COMELEC En Banc. Nolasco, the vice-mayorelect took part as intervenor, urging that should Blanco be finally
disqualified, the mayoralty position be turned over to him. The parties
were allowed to file their memoranda. IN A MAYORALTY ELECTION,
THE CANDIDATE WHO OBTAINED THE SECOND HIGHEST
NUMBER OF VOTES, IN THIS CASE ALARILLA, CANNOT BE
PROCLAIMED WINNER IN CASE THE WINNING CANDIDATE IS
DISQUALIFIED. Thus, we reiterated the rule in the fairly recent case of
Reyes v. COMELEC,[14] viz:

To simplistically assume that the second placer would have


received the other votes would be to substitute our judgment
for the mind of the voter. The second placer is just that, a
second placer. He lost the elections. He was repudiated by
either a majority or plurality of voters. He could not be
considered the first among qualified candidates because in a
field which excludes the disqualified candidate, the

conditions would have substantially changed.We are not


prepared to extrapolate the results under the circumstances.
RIGHT OF SUFFRAGE WHICH IS THE BEDROCK OF
REPUBLICANISM. SUFFRAGE IS THE MEANS BY WHICH
OUR PEOPLE EXPRESS THEIR SOVEREIGN
JUDGMENT.ITS FREE EXERCISE MUST BE PROTECTED
ESPECIALLY AGAINST THE PURCHASING POWER OF
THE PESO. As we succinctly held in People v. San Juan,
[16]
"each time the enfranchised citizen goes to the polls to
assert this sovereign will, that abiding credo of republicanism
is translated into living reality. If that will must remain
undefiled at the starting level of its expression and
application, every assumption must be indulged in and every
guarantee adopted to assure the unmolested exercise of the
citizen's free choice. For to impede, without authority valid in
law, the free and orderly exercise of the right of suffrage, is
to inflict the ultimate indignity on the democratic process."
Moya v. Del Fierro
69 Phil 199 (1939)

The right to vote has reference to a constitutional guarantee of


the utmost significance. It is a right without which the
principle of sovereignty residing in the people becomes
nugatory. 20 in the traditional terminology, it is a political right
enabling every citizen to participate in the process of government to
assure that it derives its power from the consent of the governed. What
was so eloquently expressed by justice laurel comes to mind: "as long
as popular government is an end to be achieved and
safeguarded, suffrage, whatever may be the modality and form
devised, must continue to be the means by which the great
reservoir of power must be emptied into the receptacular
agencies wrought by the people through their constitution in
the interest of good government and the common weal.
Republicanism, in so far as it implies the adoption of a
representative type of government, necessarily points to the
enfranchised citizen as a particle of popular sovereignty and as
the ultimate source of the established authority." 21 how such a
right is to be exercised is regulated by the election code. 22 its
enforcement under the constitution is, as noted, vested in respondent
commission. Such a power, however, is purely executive or
administrative. So it was characterized by the chief justice in abcede v.
Imperial: 23 "lastly, as the branch of the executive department
although independent of the president to which the constitution
has given the 'exclusive charge' of the 'enforcement and
administration of all laws relative to the conduct of elections,'
the power of decision of the commission is limited to purely
'administrative questions.' ...."
It becomes obvious then why the right to vote, a denial of which should
find redress in the judiciary as the guardian of constitutional rights, is
excluded from the authority vested in respondent Commission. If the
exclusion of the returns from the four towns in Sulu involved a question
as to such a right, then, clearly, what the Commission did was beyond
its competence. Such is not the case however. What is deemed outside
such a sphere is the determination of whether or not a person can
exercise or is precluded from exercising the right of suffrage. Thus, the
question of inclusion or exclusion from the list of voters is
properly judicial. 24 As to WHETHER OR NOT AN ELECTION HAS
BEEN HELD IS A QUESTION OF A DIFFERENT TYPE. IT IS
PROPERLY WITHIN THE ADMINISTRATIVE JURISDICTION OF
RESPONDENT COMMISSION.
27

Badelles Vs. Cabili,


SCRA 11, February 27, 1969

If that right be disregarded or frittered away, then popular


sovereignty becomes a myth. A republic then to be true to its
name requires that the government rests on the consent of
the people, consent freely given, intelligently arrived at,
honestly recorded, and thereafter counted. Only thus can they
be really looked upon as the ultimate sources of established authority.
It is their undeniable right to have officials of their unfettered choice.
THE ELECTION LAW HAS NO JUSTIFICATION EXCEPT AS A
MEANS FOR ASSURING A FOH EXPRESSION OF THEIR VIEWS. It
is of the essence that corruption and irregularities should not be
permitted to taint the electoral process. It may not always be thus
unfortunately. That should be the ideal however. If there be a failure to
observe the mandates of the Election Code, the aggrieved parties
should not be left remediless.
Under the law as it stands, it is precisely an election protest that fitly
serves that purpose. It was sought to be thus utilized in these two

cases, perhaps in a rather awkward and far from entirely satisfactory


manner. That in itself is no reason for the courts to slam the door
against any opportunity for redress. Yet, that is what would happen if
the order of dismissal complained of were not set aside. Hence the
inevitability of its reversal.

Romualdez V. Br, 7 Tacloban City


226 SCRA 408
In election cases, the Court treats domicile and residence as
synonymous terms, thus: "(t)he term "residence" as used in the
election law is synonymous with "domicile", which imports not only an
intention to reside in a fixed place but also personal presence in that
place, coupled with conduct indicative of such intention."
"Domicile" denotes a fixed permanent residence to which when
absent for business or pleasure, or for like reasons, one intends to
return. That residence, in the case of the petitioner, was established
during the early 1980's to be at Barangay Malbog, Tolosa, Leyte.
Residence thus acquired, however, may be lost by adopting another
choice of domicile.
In order, in turn, to acquire a new domicile by choice, there must
concur
(1) residence or bodily presence in the new locality,
(2) an intention to remain there,
(3) an intention to abandon the old domicile.
In other words, there must basically be animus manendi coupled
with animus non revertendi. The purpose to remain in or at the
domicile of choice must be 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. PI-CV-RA
DEPARTURE FROM THE COUNTRY CANNOT BE DESCRIBED AS
"VOLUNTARY The political situation brought about by the "People's
Power Revolution" must have truly caused great apprehension to the
Romualdezes, as well as a serious concern over the safety and welfare
of the members of their families. Their going into self-exile until
conditions favorable to them would have somehow stabilized is
understandable. Certainly, their sudden departure from the country
cannot be described as "voluntary," or as "abandonment of residence"
at least in the context that these terms are used in applying the
concept of "domicile by choice."We have closely examined the records,
and we find not that much to convince us that the petitioner had, in
fact, abandoned his residence in the Philippines and established his
domicile elsewhere.
RIGHT TO VOTE IS A MOST PRECIOUS POLITICAL RIGHT, AS
WELL AS A BOUNDEN DUTY OF EVERY CITIZEN, enabling and
requiring him to participate in the process of government so as to
ensure that the government can truly be said to derive its power solely
from the consent of the governed. As the right of suffrage is not to be
abridged, so also must we safeguard and preserve it but only on behalf
of those entitled and bound to exercise it.

SUFFRAGE AS A RIGHT AND PRIVILEGE


Lacson v. Posadas
72 SCRA 169
Municipal Judge Ramon Posadas of Talisay, Negros Occidental is
charged in a complaint filed by Lacson for ignorance of the law,
partiality and violation of Election Code 1971. Judge Posadas was found
to have failed to comply with the requirements of Sec. 136 of the
Election Code of 1971 which states:
Any person who has been refused registration or whose name has
been stricken out from the permanent list of voters may at any time
except sixty (60) days before a regular election or twenty-five (25)
days before a special election, apply to the proper court for an order
directing the election registration board or the board of inspectors as
the case may be, to include or reinstate his name in the permanent list
of voters, attaching to his application for inclusion the
certificate of the Electron registration board or the board of
inspectors regarding his case and proof of service of a copy of
his application and of the notice of hearing thereof upon a
member of the said board.
ISSUE: W/N Judge Posadas violated Lacsons right of suffrage? . YES

In our republican system of government, the exercise by the people of


their right of suffrage is the expression of their sovereign will. It is,
therefore, absolutely essential that the free and voluntary use of this
right be effectively protected by the law and by governmental
authority. As stated in an earlier case:
The people in clothing a citizen with the elective franchise for the
purpose of securing a consistent and perpetual administration of the
government they ordain, charge him with the performance of a duty in
the nature of a public trust, and in that respect constitute him a
representative of the whole people. This duty requires that the
privilege thus bestowed should be exercise, not exclusively for the
benefit of the citizen or class of citizens professing it, but in good faith
and with an intelligent zeal for the general benefit and welfare of the
state. In the last analysis, therefore, the inclusion in or exclusion from
the permanent electoral list of any voter concerns not only the latter in
his individual capacity but the public in general.

SUFFRAGE AS A DUTY
Abanil v. Justice of Peace of Bacolod
70 Phil 26
NATURE OF SUFFRAGE
In the scheme of our present republican government, the people
are allowed to have a voice therein through the instrumentality
of suffrage to be availed of by those possessing certain prescribe
qualifications (Article V, Constitution of the Philippines; sections
93 and 94, Election Code). The people in clothing a citizen
with the elective franchise for the purpose of securing a
consistent and perpetual administration of the
government they ordain, charge him with the
performance of a duty in the nature of a public trust, and
in that respect constitute him a representative of the
whole people.
AS A DUTY
This duty requires that the privilege thus bestowed should be
exercised, not exclusively for the benefit of the citizen or class of
citizens professing it, but in good faith and with an intelligent
zeal for the general benefit of the state. (U.S. vs. Cruikshank, 92
U. S., 588.) In the last analysis, therefore, the inclusion from the
permanent electoral list of any voter concerns not only the latter
in his individual capacity but the public in general.

ROLE OF JUDICIARY
Moya v. Del Fierro
G.R. No. L-46863 November 18, 1939
Republicanism, in so far as it implies the adoption of a representative
type of government, necessarily points to the enfranchised citizen as a
particle of popular sovereignty and as the ultimate source of the
established authority. He has a voice in his Government and whenever
called upon to act in justifiable cases, to give it efficacy and not to
stifle it. This, fundamentally, is the reason for the rule that ballots
should be read and appreciated, if not with utmost, with
reasonable, liberality. Counsel for both parties have called our
attention to the different and divergent rules laid down by this Court on
the appreciation of ballots. It will serve no good and useful purpose for
us to engage in the task of reconciliation or harmonization of these
rules, although this may perhaps be undertaken, as no two cases will
be found to be exactly the same in factual or legal environment.
It is sufficient to observe, however, in this connection that whatever
might have been said in cases heretofore decided, no technical rule
or rules should be permitted to defeat the intention of the
voter, if that intention is discoverable from the ballot itself, not
from evidence aliunde. This rule of interpretation goes to the very
root of the system. Rationally, also, this must be the justification for the
suggested liberalization of the rules on appreciation of ballots which
are now incorporated in section 144 of the Election Code
(Commonwealth Act No. 357).
Pungutan v. Abubakar/Comelec
How such a right is to be exercised is regulated by the Election Code.
Its enforcement under the Constitution is, as noted, vested in
respondent Commission. Such a power, however, is purely executive or
administrative. So it was characterized by the Chief Justice in Abcede v.

Imperial: ".. as the branch of the executive department although


independent of the President to which the Constitution has given the
'exclusive charge' of the 'enforcement and administration of all laws
relative to the conduct of elections,' the power of decision of the
Commission is limited to purely 'administrative questions.' ...."
It becomes obvious then why THE RIGHT TO VOTE, A DENIAL OF
WHICH SHOULD FIND REDRESS IN THE JUDICIARY AS THE
GUARDIAN OF CONSTITUTIONAL RIGHTS, is excluded from the
authority vested in respondent Commission. If the exclusion of the
returns from the four towns in Sulu involved a question as to such a
right, then, clearly, what the Commission did was beyond its
competence. Such is not the case however. What is deemed outside
such a sphere is the determination of whether or not a person can
exercise or is precluded from exercising the right of suffrage. THUS,
THE QUESTION OF INCLUSION OR EXCLUSION FROM THE LIST
OF VOTERS IS PROPERLY JUDICIAL.

Margarito Suliguin vs. COMELEC, March 23, 2006, GR No.


166046 citing the case of Bince v. COMELEC, 242 SCRA 436, the
SC held political laws must be so construed so as to give
life and spirit to the popular mandate freely expressed
through the ballot. Technicalities and procedural niceties in
election cases should not be made to stand in the way of the true
will of the electorate.

Bince v. COMELEC 242 SCRA 273


FACTS: Mathematical errors led to Bince Jrs proclamation. His
rival filed a petition to correct manifest errors prior to Binces
proclamation. COMELEC annulled Binces victory and ordered the
BOCs to make the corrections.
Assuming for the sake of argument that the petition was filed out
of time, this incident alone will not thwart the proper
determination and resolution of the instant case on substantial
grounds. Adherence to a technicality that would put a
stamp of validity on a palpably void proclamation, with
the inevitable result of frustrating the peoples will cannot
be countenanced.

AS TO WHETHER OR NOT AN ELECTION HAS BEEN HELD IS A


QUESTION OF A DIFFERENT TYPE. IT IS PROPERLY WITHIN THE
ADMINISTRATIVE JURISDICTION OF RESPONDENT COMMISSION.
If, as is our decision, no such voting did take place, considering the
massive irregularities that attended it in the four towns, then the
exclusion of the alleged returns is not tainted by infirmity. In that
sense, the second issue raised by petitioner that in so acting the
respondent Commission exceeded its constitutional power by
encroaching on terrain properly judicial, the right to vote being
involved, is likewise to be resolved against him.
2.
ELECTIONS
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, 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. IT DOES NOT ONLY REFER TO ACT
OF VOTING but it refers to the entire electoral process. (Carlos v.
Angeles 346 SCRA 571 (2000)

ESSENCE OF ELECTIONS
-

the plurality of votes or majority rule. A public office is filled only


by those who receive the highest number of votes in the election
for that office which is the basic tenet in all republican form of
government.

BASIS OF PLURALITY OF VOTES


Mitmug v. COMELEC 230 SCRA
Facts: Less than 25 % of registered voters voted. Mitmug also filed a
peititon to declare a failure of elections due to terrorism and fraud.
COMELEC refused to declare failure of elections.
The majority or plurality of votes is determined by the number of
registered VOTERS WHO ACTUALLY CAST THEIR VOTES OR THOSE WHO
ACTUALLY VOTED AND NOT BASED ON THE NUMBER OF REGISTERED
VOTERS. There is no provision in our election laws which requires that
a majority of the registered voters must cast their votes. All the law
requires is that the winning candidates must be elected by plurality of
votes, regardless of the actual number of ballots cast. Therefore, even
if less than 25% of the electorate in the questioned precincts cast their
votes, the votes has to be respected.

CONSTRUCTION OF ELECTION LAWS

Election contests are REASONABLY AND LIBERALLY


CONSTRUED as it is imbued with public interest to give way to
the will of the electorate and ascertain by all means the real
candidate elected by the people. - Sec. 3 Rule 1, COMELEC Rules
of Procedure
Reason: to promote the effective and efficient implementation of
the objectives of ensuring the holding of an HONEST, ORDERLY,
PEACEFUL, FREE AND CREDIBLE ELECTIONS and to achieve a
just, expeditious and inexpensive determination and disposition of
every action and proceeding brought before the COMELEC.

Settled is the rule that laws governing election contests must be


liberally construed to the end that the will of the people in the
choice of public officials may not be defeated by mere technical
objections In an election case the court has an imperative duty to
ascertain all means within its command who is the real candidate
elected by the electorate. this Court has made it clear that it
frowns upon any interpretation of the law or the rules that would
hinder in any way not only the free and intelligent casting of the
votes in an election but also the correct ascertainment of the
results, This bent or disposition continues to the present. The
same principle still holds true today. Technicalities of the legal
rules enunciated in the election laws should not frustrate the
determination of the popular will.

Benito vs COMELEC 235 SCRA 436


the proclamation of Benito as mayor-elect by the Municipal Board
of Canvassers was not a valid proclamation. The fact that the
candidate who obtained the highest number of votes dies, or is
later declared to be disqualified or not eligible for the office to
which he was elected does not necessarily entitle the
candidate who obtained the second highest number of
votes to be declared the winner of the elective office.
Election contests involve public interest, and technicalities and
procedural barriers should not be allowed to stand if they
constitute an obstacle to the determination of the true will of the
electorate in the choice of their elective officials. Laws
governing election contests must be liberally construed to
the end that the will of the people in the choice of public
officials may not be defeated by mere technical objections.
Technicalities of the legal rules enunciated in the election laws
should not frustrate the determination of the popular will.

IN APPLYING THE RULES OF STATUTORY CONSTRUCTION HOWEVER,


THE PROVISIONS OF ELECTION LAWS ARE DIVIDED INTO THREE
PARTS NAMELY;
1.
2.
3.

Those which refers to the conduct of elections required to be


observed by election officials;
Those provisions which candidates for public elective office
are required to do and comply with;
Those provisions which cover procedural rules designed to
ascertain, in case of dispute, the actual winner in the
elections.

Laws for
conduct of
Elections
Laws for
Candidates
Procedural
Rules

Before: Mandatory
After: Directory
Mandatory & Strictly Construed

Liberally construed in favour of


ascertaining the will of the electorate

1)

Those which refers to the conduct of elections required to be


observed by election officials;

Bautista vs Castro 206 SCRA 305 - The absence of the


signature of the Chairman of the Board of Election Tellers in the
ballot given to a voter as required by law and the rules as proof of
the authenticity of said ballot is fatal. This requirement is
mandatory for the validity of the said ballot.

Marcelino C. Libanan v. HRET a ballot without the BEI


chairmans signature at the back is valid and not spurious,
provided that it bears any one o these other authenticating
marks, to wit
a.
the COMELEC watermark; and
b.
in those cases where the COMELEC watermarks
are blurred or not readily apparent, the presence
of red and blue fibers in the ballots.

2)

Those provisions which candidates for public elective office


are required to do and comply with;
The provision of law which candidates for office are
required to comply with are generally regarded as
mandatory and failure to comply would be fatal to the
candidate. Example, rules prescribing the qualification of
candidates (such as age, citizenship or residency
requirements cannot be cured by vox populi vox dei),
deadline or filing of certificate of candidacy or limitation of
period within which to file an election contest.

The rules and regulations for the conduct of elections are:

Mandatory before the elections, but when it is


Directory only after the elections most particularly if
innocent voters will be disenfranchised by the negligence or
omission of the elections officers (who will be liable either
criminally or administratively).

Saya-Ange v. COMELEC, G.R. No. 155087, November 28,


2003 - The rules and regulations for the conduct of elections are
mandatory before the election, but when it is sought to
enforce them after the election, they are to be directory
only, if that is possible especially where, if they are held to be
mandatory, innocent voters will be deprived of their votes without
any fault on their part. When the voters have honestly cast their
ballots, the same should not be nullified because the officers
appointed under the law to direct the election and guard the
purity of the ballot have not done their duty.

Fernandez vs COMELEC GR No. 9135 April 3, 1990


While Section 24 of Republic Act No. 7166, otherwise known as
An Act Providing For Synchronized National and Local Elections
and For Electoral Reforms, requires the BEI chairman to affix his
signature at the back of the ballot, the mere failure to do so
does not invalidate the same although it may constitute
an election offense imputable to said BEI chairman.
Nowhere in said provision does it state that the votes contained
therein shall be nullified. It is a well-settled rule that the failure of
the BEI chairman or any of the members of the board to comply
with their mandated administrative responsibility, i.e., signing,
authenticating and thumbmarking of ballots, should not penalize
the voter with disenfranchisement, thereby frustrating the will of
the people. (as cited in Punzalan vs. COMELEC [G.R. No.
126669. April 27, 1998])

Punzalan v. COMELEC April 27, 1998 - Section 15 of RA 6646 as


amended by Sec. 24 of RA 7166, requires, in addition to the
preliminary acts for the conduct of vote as provided under Sec.
191 of the OEC, the Chairman, to affix their signatures at the back
of each and every ballot to be used during the voting. MERE
FAILURE TO AFFIX SIGNATURE AT THE BACK OF THE BALLET
BY THE BEI CHAIRMAN DOES NOT INVALIDATE THE SAME
ALTHOUGH IT MAY CONSTITUTE AN ELECTION OFFENSE
IMPUTABLE TO HIM. Nowhere in said provision does it state that
the votes contained therein shall be nullified. It is a well-settled
rule that the failure of the BEI chairman or any of the members of
the board to comply with their mandated administrative
responsibility, i.e., signing, authenticating and thumbmarking of
ballots, should not penalize the voter with disenfranchisement,
thereby frustrating the will of the people. allot without BEI
chairmans signature at the back is valid and not spurious,
provided that it bears any one of these other authenticating
marks, to wit:
a)
b)
c)

the COMELEC watermark;


in those cases where the COMELEC watermarks are
blurred
or not readily apparent, the presence of red and blue
fibers in the ballots.

STATUTES GOVERNING ELECTION CONTESTS ESPECIALLY


APPRECIATION OF BALLOTS MUST BE LIBERALLY
CONSTRUED TO THE END THAT THE WILL OF THE
ELECTORATE IN THE CHOICE OF PUBLIC OFFICIALS MAY
NOT BE DEFEATED BY TECHNICAL INFIRMITIES. An election
protest is imbued with public interest so much so that the need to
dispel uncertainties which becloud the real choice of the people
is imperative. Prescinding from the foregoing, we find that
respondent COMELEC did not act with grave abuse of discretion in
G.R. No. 132435. The petitions in G.R. Nos. 126669, 127900 and
128800 are rendered moot by the preceding disquisition.

3) Those provisions which covers procedural rules designed to


ascertain, in case of dispute, the actual winner in the elections.

Maruhom v. COMELEC 331 SCRA 473,


FACTS: Election protest about validity of ballots, petitioner filed a
MD after filing his answer at the RTC. COMLEC dismissed it for
being a prohibited pleading; and that the issue of the ballots
should be decided in trial.
it was ruled that laws and statutes governing election
contests especially the appreciation of ballots must be
liberally construed to the end that the will of the
electorate in the choice of public officials may not be
defeated by technical infirmities.
An election protest is imbued with public interest so much so that
the need to dispel uncertainties which becloud the real choice of
the people is imperative,] much more so in this case considering
that a mere twenty (20) votes separates the winner from the loser
of the contested election results. laws and statutes governing
election contests especially the appreciation of ballots must be
liberally construed and that in applying election laws, it
would be far better to err in favor of the popular
sovereignty than to be right in complex but little
understood legalisms.

Pea v. HRET 270 SCRA 340


FACTS: Pena filed an election protest with the HRET due to
allegations of fraud in election precincts in Palawan. The HRET
dismissed, stating that the petition failed to state a cause of
action. Was the HRET correct in its dismissal even though
procedural rules to ascertain actual winners in elections must be
construed liberally? YES
While statues providing for election contests are to be liberally
construed, the rule likewise stands, that in an election protest,
the protestant must stand or fall upon the issues he had
raised in his original or amended pleading filed prior to
the lapse of the statutory period for filing of the protest
considering that compliance therewith are rendered
mandatory for candidates.
While it is conceded that statutes providing for election contests
are to be liberally construed to the end that the will of the people
in the choice of public officers may not be defeated by mere
technical questions, the rule likewise stands, that in an election
protest, the protestant must stand or fall upon the issues
he had raised in his original or amended pleading filed
prior to the lapse of the statutory period for filing the
protest.

Admittedly, the rule is well-established that the power to annul


an election should be exercised with the greatest care as it
involves the free and fair expression of the popular will. It is only
in extreme cases of fraud and under circumstances which
demonstrate to the fullest degree a fundamental and wanton
disregard of the law that elections are annulled, and then only
when it becomes impossible to take any other step.

physical, moral and spiritual, intellectual and social wellbeing. It shall inculcate in the youth patriotism and
nationalism and encourage their involvement in public and
civic affairs.
Section 23. The state shall encourage non-governmental,
community-based, or sectoral organizations that promote
the welfare of the nation.
Section 26. The State shall guarantee equal access to
opportunities for public service and prohibit political
dynasties as may be defined by law.

LIMITATIONS TO THE LIBERAL CONSTRUCTION (WHEN LIBERAL


CONSTRUCTION POLICY NOT APPLICABLE)

1)
2)
3)
4)
5)

When the amendment to pleadings in an election contest will


substantially change the cause of action, defense or theory of the
case;
When the amendment will alter a final judgment on a substantial
matter;
When the amendments will confer jurisdiction upon the court
when none existed before;
When it seeks to cure a premature or non-existent cause of action
When the amendment is intended to delay the proceedings of the
case.

Section 5. No law shall be made respecting an


establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall
be required for the exercise of civil or political rights.
Section 8. The right of the people, including those
employed in the public and private sectors, to form unions,
associations, or societies for purposes not contrary to law
shall not be abridged.

Hofer v. HRET, GR. No. 158833, May 12, 2005 - the time
limit for presentation of evidence of 20 days conformably with
Rule 59 of the HRET Rules is explicit and strictly complied with. It
is not a technicality that can be set aside as would make the
liberal construction policy operative.
Substantial amendments may be allowed but must be within time
period (10 days after winners proclamation The Court has already
ruled in Joker P. Arroyo vs. HRET, that substantial amendments to
the protest may be allowed only within the same period for filing
the election protest, which, under Rule 16 of the HRET Rules of
Procedure is ten (10) days after the proclamation of the
winner.

Section 16. All persons shall have the right to a speedy


disposition of their cases before all judicial, quasi-judicial, or
administrative bodies.
Section 18. (1) No person shall be detained solely by
reason of his political beliefs and aspirations.

TRINIDAD V. SUNGA EQUITABLY CONSTRUED TO GIVE


FULLEST EFFECT TO THE MANIFEST WILL OF OUR PEOPLE,
for in case of doubt, political laws must be interpreted to give life
and spirit to the popular mandate freely expressed through the
ballot. Otherwise stated, legal niceties and technicalities cannot
stand in the way of the sovereign will. Consistently, we have held:
(L)aws governing election contests must be liberally construed to
the end that the will of the people in the choice of public officials
may not be defeated by mere technical objections
THE CANDIDATE WHO OBTAINS THE SECOND HIGHEST
NUMBER OF VOTES MAY NOT BE PROCLAIMED WINNER IN
CASE THE WINNING CANDIDATE IS DISQUALIFIED Finally, we
see no error in the COMELECs rejection of private respondents
move to be declared as Mayor on account of petitioners
disqualification. To begin with, the issue had been rendered moot
and academic by the expiration of petitioners challenged term of
office. Second, even in law and jurisprudence, private respondent
cannot claim any right to the office. As held by the COMELEC, the
succession to the office of the mayor shall be in accordance with
the provisions of the Local Government Code which, in turn,
provides that the vice mayor concerned shall become the mayor.

3.

POWER OF CONGRESS TO REGULATE SUFFRAGE

CONSTITUTIONAL PROVISIONS

ARTICLE II. DECLARATION OF PRINCIPLES & STATE


POLICIES
Section 1. The Philippines is a democratic and republican
state. Sovereignty resides in the people and all government
authority emanates from them.
Section 13. The State recognizes the vital role of the youth
in nation building and shall promote and protect their

ARTICLE III. BILL OF RIGHTS.


Section 4. No law shall be passed abridging the freedom of
speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government
for redress of grievances.

ARTICLE IV. CITIZENSHIP.


Section 1. The following are citizens of the Philippines:
1.
Those who are citizens of the Philippines at the time of
the adoption of this Constitution;
2.
Those whose fathers or mothers are citizens of the
Philippines;
3.
Those born before January 17, 1973, of Filipino
mothers, who elect Philippine Citizenship upon
reaching the age of majority; and
4.
Those who are naturalized in the accordance with law.
Section 2. Natural-born citizens are those who are citizens
of the Philippines from birth without having to perform any
act to acquire or perfect their Philippine citizenship. Those
who elect Philippine citizenship in accordance with
paragraph (3), Section 1 hereof shall be deemed naturalborn citizens.

Citizenship of course, is a basic and fundamental


requirement as the right to vote and those who intend
to run for public office are reserved only to those who
are Filipino Citizens.

ARTICLE V. SUFFRAGE.
Section 1. Suffrage may be exercised by
1.
all citizens of the Philippines, not otherwise disqualified
by law,
2.
who are at least eighteen years of age, and
3.
who shall have resided in the Philippines for
a)
at least one year and in the place wherein they
propose to vote,
b)
for at least six months immediately preceding
the election.
c)
No literacy, property, or other substantive
requirement shall be imposed on the exercise of
suffrage.
Section 2. 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.
The Congress shall also design a procedure for the disabled
and the 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.

Qualifications of voters and the mandate imposed upon


Congress to provide a system for securing the secrecy and
sanctity of the ballot as well as a system for absentee voting
which is now provided under RA 9189.

vi.

ARTICLE VI. LEGISLATIVE DEPARTMENT.


Composition of the members of the House of Representative,
qualifications providing those who intend to run for a seat in
Congress, term of office of members of the HR, party-list
representations, vacancy, composition of the HRET and SET.

vii.

RA 8436. An Act Authorizing the Comelec to Use an


Automated System in the May 11, 1998 National and
Local Elections and in subsequent National and Local
Electoral Exercises.

Section 11 thereof impliedly repealed Section 67


of B.P. 881 being inconsistent with Section 11,
which provides that elective officials running for
any office other than the one he/she is holding in
a permanent

viii.

RA 8534. An Act Changing the Term of Office of


Barangay Officials and Members of the SK from 3 years
to 5 years amending Section 43 of RA 7160, the Local
Government code. (February 14, 1998)

ix.

RA 9006. Political Advertising Ban and Fair Election


Practices Act. (February 12, 2001)

Section 14 expressly repealed Section 67 & 85,


Section 10 & 11 of RA 6646 and rendered
ineffective the provision of Section 11 of RA 8436
insofar as the applicability of Section 11 on the
matter is concerned.

x.

RA 9189. An Act Providing for a System of Overseas


Absentee Voting By Qualified Citizens of the Philippines
abroad. (February 13, 2003)

xi.

RA 9164. An Act Providing for Synchronized Barangay


and SK Elections, Amending RA 7160, as amended.
(March 19, 2002)

xii.

RA 9225. An Act Making the citizenship of Philippine


citizens who acquire Foreign Citizenship Permanent,
Amending for the Purpose of Commonwealth Act 63, as
amended. (August 29, 2003)

ARTICLE VII. EXECUTIVE DEPARTMENT.


Qualifications for President, Vice-President, their term of
office, limitation of term, manner of canvass and
proclamation, composition of the PET and vacancy.
ARTICLE IX-A. COMMON PROVISIONS FOR
CONSTITUTIONAL OFFICES.
ARTICLE IX-C. COMPOSITIONS, POWERS AND
FUNCTIONS OF THE COMELEC.
ARTICLE X, Sec. 10 General provision of Local
Government with respect to requirement for alteration of
political boundaries.

Article XVI. General prohibition against partisan political


activities or prohibition on the appointment or designation of
a member of the AFP in the active service to a civilian
position in government.

XVII. Amendments or revisions to the Constitution.

OMNIBUS ELECTION CODE OF


THE PHILIPPINES (OEC)

Batas Pambansa Bilang 881, otherwise known as the


OEC of the Philippines which was enacted into law on
December 3, 1985 and took effect upon its approval
(OEC, Section 283), is the basic statutory election law
of the Philippines. It codified all previous election laws
which repealed PD 1296, otherwise known as the
Election Code of 1978 as amended (OEC 282).

AMENDMENTS UNDER THE 1987


CONSTITUTION
AND AMONG THE MOST SIGNIFICANT AMENDATORY
LAWS INCLUDE:
i. RA 6646. The Electoral Reform Law of 1987.

Effective January 5, 1988

Section 2 thereof re-enacted the OEC, when


it is provided that the first local elections
under the new Constitution and all
subsequent elections and plebiscites shall be
governed by this Act and by the provisions of
the BP 881, otherwise known as the OEC of
the Philippines, and other election laws not
inconsistent with this Act.
ii.

RA 7166. An Act Providing For Synchronized National


And Local Elections And For Electoral Reforms.
(November 26, 1991)

iii.

RA 7904 An Act Governing the conduct of the 1995


Senatorial and Local Elections

iv.

RA 7941. An Act Providing For The Election Of Party-List


Representatives Through The Party-List System. (March
3, 1995)

v.

RA 8189. An Act Providing for a General Registration of


Voters, Adopting a System of Continuing Registration
Prescribing the Procedures Thereof and Authorizing the
Appropriation of Funds therefore. ( June 11, 1996)

RA 8295. An Act Providing for the Proclamation of a


Lone Candidate for any Elective Office in a special
election, and for Other Purposes. (June 6, 1997)

xiii.

RA 9244. An Act Eliminating the Preparatory Recall


Assembly as a Mode of Instituting Recall of Elective
Government Officials. (February 19, 2004)

xiv.

RA 9369 An act amending RA 8346, titles An Act


Authorizing the Commission on Elections to Use An
Automated Election System in the May 11, 1998
National or Local Elections and in Subsequent National
and Local Electoral Exercises

xv.

RA 6735. An Act providing for a System of Initiative


and Referendum and Appropriate Funds Therefore.
(August 4, 1989)

xvi.

RA 8171. An Act Providing For the Repatriation of


Filipino Women Who have lost their Philippine
Citizenship by Marriage to Aliens and of Natural-born
Filipinos. (October 23, 1995)

RA 7160 LOCAL GOVERNMENT


CODE RA 7160
The Local Government Code of 1991.Provisions relating the
qualifications and election of local elective offices, the recall of
local elective officials, and local initiative and referendum
(Sections 39-43, 69-75, 120-127)

i.
ii.
iii.

Recall
Qualifications and Disqualifications of Local
Elective Officials
Local Initiative and Referendum

RECALL

Section 69. By Whom Exercised. - The power of recall for loss of


confidence shall be exercised by the registered voters of a local
government unit to which the local elective official subject to such
recall belongs.
Section 70. Initiation of the Recall Process.
(a) Recall may be initiated by a preparatory recall assembly or by
the registered voters of the local government unit to which the
local elective official subject to such recall belongs.
(b) There shall be a preparatory recall assembly in every province,
city, district, and municipality which shall be composed of the
following:
(1) Provincial level. - All mayors, vice-mayors, and sanggunian
members of the municipalities and component cities;
(2) City level. - All punong barangay and sanggunian barangay
members in the city;
(3) Legislative District level. - In case where sangguniang
panlalawigan members are elected by district, all elective
municipal officials in the district; and in cases where
sangguniang panlungsod members are elected by district, all
elective barangay officials in the district; and
(4) Municipal level. - All punong barangay and sangguniang
barangay members in the municipality.
(c)

(d)

(1)

(2)

A majority of all the preparatory recall assembly members may


convene in session in a public place and initiate a recall
proceedings against any elective official in the local government
unit concerned. Recall of provincial, city, or municipal officials
shall be validly initiated through a resolution adopted by a
majority of all the members of the preparatory recall assembly
concerned during its session called for the purpose.
Recall of any elective provincial, city, municipal, or barangay
official may also be validly initiated upon petition of at least
twenty-five percent (25%) of the total number of registered
voters in the local government unit concerned during the
election in which the local official sought to be recalled was
elected.
A written petition for recall duly signed before the election
registrar or his representative, and in the presence of a
representative of the petitioner and a representative of the
official sought to be recalled and, and in a public place in the
province, city, municipality, or barangay, as the case may be,
shall be filed with the COMELEC through its office in the local
government unit concerned. The COMELEC or its duly authorized
representative shall cause the publication of the petition in a
public and conspicuous place for a period of not less than ten
(10) days nor more than twenty (20) days, for the purpose of
verifying the authenticity and genuineness of the petition and
the required percentage of voters.
Upon the lapse of the aforesaid period, the COMELEC or its duly
authorized representative shall announce the acceptance of
candidates to the position and thereafter prepare the list of
candidates which shall include the name of the official sought to
be recalled.

Section 71. Election on Recall. - Upon the filing of a valid resolution or


petition for recall with the appropriate local office of the COMELEC, the
Commission or its duly authorized representative shall set the date of
the election on recall, which shall not be later than thirty (30) days
after the filing of the resolution or petition for recall in the case of the
barangay, city, or municipal officials. and forty-five (45) days in the
case of provincial officials. The official or officials 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.
Section 72. Effectivity of Recall. - The recall of an elective local official
shall be effective only upon the election and proclamation of a
successor in the person of the candidate receiving the highest number
of votes cast during the election on 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.
Section 73. Prohibition from Resignation. - The elective local official
sought to be recalled shall not be allowed to resign while the recall
process is in progress.
Section 74. Limitations on Recall.
(a) Any elective local official may be the subject of a recall election
only once during his term of office for loss of confidence.

(b) No recall shall take place within one (1) year from the date of the
official's assumption to office or one (1) year immediately preceding a
regular local election.
Section 75. Expenses Incident to Recall Elections. - All expenses
incident to recall elections shall be borne by the COMELEC. For this
purpose, there shall be included in the annual General Appropriations
Act a contingency fund at the disposal of the COMELEC for the conduct
of recall elections.

QUALIFICATIONS AND DISQUALIFICATIONS OF LOCAL ELECTIVE


OFFICIALS
Section 39. Qualifications. (a) 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; and
able to read and write Filipino or any other local language or
dialect.
(b) Candidates for the position of governor, vice-governor, or
member of the sangguniang panlalawigan, or mayor, vice-mayor
or member of the sangguniang panlungsod of highly urbanized
cities must be at least twenty-one (21) years of age on election
day.
(c) Candidates for the position of mayor or vice-mayor of
independent component cities, component cities, or
municipalities must be at least twenty-one (21) years of age on
election day.
(d) Candidates for the position of member of the sangguniang
panlungsod or sangguniang bayan must be at least eighteen
(18) years of age on election day.
(e) Candidates for the position of punong barangay or member of
the sangguniang barangay must be at least eighteen (18) years
of age on election day.
(f) Candidates for the sangguniang kabataan must be at least
fifteen (15) years of age but not more than twenty-one (21)
years of age on election day.
Section 40. Disqualifications. - The following persons are disqualified
from running for any elective local position:
(e) Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence;
(f) Those removed from office as a result of an administrative case;
(g) Those convicted by final judgment for violating the oath of
allegiance to the Republic;
(h) Those with dual citizenship;
(i)
Fugitives from justice in criminal or non-political cases here or
abroad;
(j)
Permanent residents in a foreign country or those who have
acquired the right to reside abroad and continue to avail of the
same right after the effectivity of this Code; and
(k) The insane or feeble-minded.

LOCAL INITIATIVE AND REFERENDUM


Section 120. Local Initiative Defined. - Local initiative is the legal
process whereby the registered voters of a local government unit may
directly propose, enact, or amend any ordinance.
Section 121. Who May Exercise. - The power of local initiative and
referendum may be exercised by all registered voters of the provinces,
cities, municipalities, and barangays.
Section 122. Procedure in Local Initiative. (a) Not less than one thousand (1,000) registered voters in case of
provinces and cities, one hundred (100) in case of municipalities,
and fifty (50) in case of barangays, may file a petition with the
sanggunian concerned proposing the adoption, enactment,
repeal, or amendment of an ordinance.
(b) If no favorable action thereon is taken by the sanggunian
concerned within thirty (30) days from its presentation, the
proponents, through their duly authorized and registered
representatives, may invoke their power of initiative, giving
notice thereof to the sanggunian concerned.

(c)
(d)
(e)

(f)

(g)

(h)

The proposition shall be numbered serially starting from Roman


numeral I. The COMELEC or its designated representative shall
extend assistance in the formulation of the proposition.
Two (2) or more propositions may be submitted in an initiative.
Proponents shall have ninety (90) days in case of provinces and
cities, sixty (60) days in case of municipalities, and thirty (30)
days in case of barangays, from notice mentioned in subsection
(b) hereof to collect the required number of signatures.
The petition shall be signed before the election registrar. or his
designated representatives, in the presence of a representative
of the proponent, and a representative of the sanggunian
concerned in a public place in the local government unit, as the
case may be. Stations for collecting signatures may be
established in as many places as may be warranted.
Upon the lapse of the period herein provided, the COMELEC,
through its office in the local government unit concerned, shall
certify as to whether or not the required number of signatures
has been obtained. Failure to obtain the required number
defeats the proposition.
If the required number of signatures is obtained, the COMELEC
shall then set a date for the initiative during which the
proposition shall be submitted to the registered voters in the
local government unit concerned for their approval within sixty
(60) days from the date of certification by the COMELEC, as
provided in subsection (g) hereof, in case of provinces and cities,
forty-five (45) days in case of municipalities, and thirty (30) days
in case of barangays. The initiative shall then be held on the
date set, after which the results thereof shall be certified and
proclaimed by the COMELEC.

Section 123. Effectivity of Local Propositions. - If the proposition is


approved by a majority of the votes cast, it shall take effect fifteen
(15) days after certification by the COMELEC as if affirmative action
thereon had been made by the sanggunian and local chief executive
concerned. If it fails to obtain said number of votes, the proposition is
considered defeated.

ELECTIONS : DEFINITION/HOW EXERCISED


CARLOS v. ANGELES
An ELECTION means the choice or selection of candidates to
public office by popular vote through the use of the ballot, and the
elected officials of which are determined through the will of the
electorate.

embodiment of the popular will, the expression of the


sovereign power of the people.

in the context of the Constitution, may refer to the


conduct of the polls, including the listing of voters, the
holding of the electoral campaign, and the casting and
counting of votes.

The winner is the candidate who has obtained a


majority or plurality of valid votes cast in the election.
Sound policy dictates that public elective offices are
filled by those who receive the highest number of votes
cast in the election for that office.

For, in all republican forms of government the basic


idea is that no one can be declared elected and no
measure can be declared carried unless he or it
receives a majority or plurality of the legal votes cast in
the election.

ESSENCE OF ELECTION /BASIS

Section 124. Limitations on Local Initiative. (a) The power of local initiative shall not be exercised more than
once a year.
(b) Initiative shall extend only to subjects or matters which are
within the legal powers of the sanggunian to enact.
(c) If at any time before the initiative is held, the sanggunian
concerned adopts in toto the proposition presented and the local
chief executive approves the same, the initiative shall be
cancelled. However, those against such action may, if they so
desire, apply for initiative in the manner herein provided.
Section 125. Limitations upon Sanggunians. - Any proposition or
ordinance approved through the system of initiative and referendum
as herein provided shall not be repealed, modified or amended by the
sanggunian concerned within six (6) months from the date of the
approval thereof, and may be amended, modified or repealed by the
sanggunian within three (3) years thereafter by a vote of three-fourths
(3/4) of all its members: Provided, That in case of barangays, the
period shall be eighteen (18) months after the approval thereof.
Section 126. Local Referendum Defined. - Local referendum is the
legal process whereby the registered voters of the local government
units may approve, amend or reject any ordinance enacted by the
sanggunian.
The local referendum shall be held under the control and direction of
the COMELEC within sixty (60) days in case of provinces and cities,
forty-five (45) days in case of municipalities and thirty (30) days in
case of barangays.
The COMELEC shall certify and proclaim the results of the said
referendum.

FACTS: Trinidad and Sunga, were candidates in the mayoralty


race in the Province of Cagayan. Trinidad won while Sunga
garnered the second place and when Trinidad was subsequently
disqualified, Sunga claims that he should be proclaimed. ISSUE:
Whether Sunga should be declared winner? NO
HELD: The SC ruled that it would be extremely repugnant to the
basic concept of the constitutionally guaranteed right to suffrage
if a candidate who has not acquired the majority or plurality of
votes be proclaimed winner and imposed as the representative of
a constituency, the majority of whom have positively declared
through their ballots that they do not choose him.

BASIS OF PLURALITY OF VOTES

MITMUG V. COMELEC
The majority or plurality of votes is determined by the number of
registered VOTERS WHO ACTUALLY CAST THEIR VOTES OR
THOSE WHO ACTUALLY VOTED AND NOT BASED ON THE NUMBER
OF REGISTERED VOTERS. There is no provision in our election
laws which requires that a majority of the registered voters must
cast their votes. All the law requires is that the winning
candidates must be elected by plurality of votes, regardless of
the actual number of ballots cast. Therefore, even if less than
25% of the electorate in the questioned precincts cast their
votes, the votes has to be respected.

RULLODA V. COMELEC the winner is the candidate who has


obtained a majority or plurality of valid votes cast in the election.
For, in all republican forms of government, the basic idea is that
no one can be declared elected and no measure can be declared
carried unless he or it receives a majority or plurality of the legal
votes cast in the election.

Section 127. Authority of Courts. - Nothing in this Chapter shall


prevent or preclude the proper courts from declaring null and void any
proposition approved pursuant to this Chapter for violation of the
Constitution or want of capacity of the sanggunian concerned to enact
the said measure.

FORMS OF POPULAR
INTERVENTION (SCOPE OF
SUFFRAGE)

SUNGA v. COMELEC

Plurality of votes is the essence of an election or


majority rule. A public office is filled only by those who
receive the highest number of votes cast in the election
for that office which is a basic tenet in all republican
form of government.

CONSTRUCTION /LIMITATIONS ; SEC. 3, COMELEC


RULES OF PROCEDURE

DUREMDES V. COMELEC
ISSUE: WON the COMELEC committed grave abuse of discretion
by declaring as null and void the proclamation of Duremdes and
by disregarding well-settled doctrines. NO

Over and above all else, the determination of the true will of the
electorate should be the paramount consideration. Election
contests involve public interest. Technicalities and procedural
barriers should not be allowed to stand if they constitute an
obstacle to the determination of the true will of the electorate in
the choice of their elective officials ... Laws governing election
contests must be liberally construed to the end that the will of
the people in the choice of public officials may not be defeated
by mere technical objections. In an election case the court has an
imperative duty to ascertain by all means within its command
who is the real candidate elected by the electorate"

not been niggardly in defining the parameters of powers of


COMELEC in the conduct of our elections In the case at bar, the
COMELEC order for a manual count was not only reasonable. It
was the only way to count the decisive local votes ...
The bottom line is that by means of the manual count, the will of
the voters of Sulu was honestly determined. We cannot kick
away the will of the people by giving a literal
interpretation to R.A. 8436. R.A. 8436 did notprohibit
manual counting when machine count does not work.
Counting is part and parcel of the conduct of an election which is
under the control and supervision of the COMELEC. At balance,
the question really boils down to a choice of philosophy and
perception of how to interpret and apply the laws relating to
elections; literal or liberal; the letter or the spirit; the naked
provision or the ultimate purpose; legal syllogism or substantial
justice; in isolation or in the context of social conditions; harshly
against or gently in favor of the voters obvious choice. In
applying elections laws, it would be far better to err in
favor of popular sovereignty than to be right in complex
but little understood legalisms.

BENITO V. COMELEC
- the proclamation of Benito as mayor-elect by the Municipal
Board of Canvassers was not a valid proclamation. The fact that
the candidate who obtained the highest number of votes dies, or
is later declared to be disqualified or not eligible for the office to
which he was elected does not necessarily entitle the
candidate who obtained the second highest number of
votes to be declared the winner of the elective office.
Election contests involve public interest, and technicalities and
procedural barriers should not be allowed to stand if they
constitute an obstacle to the determination of the true will of the
electorate in the choice of their elective officials. Laws
governing election contests must be liberally construed to
the end that the will of the people in the choice of public
officials may not be defeated by mere technical objections.
Technicalities of the legal rules enunciated in the election laws
should not frustrate the determination of the popular will.

In applying the rules of statutory construction however, the


provisions of election laws are divided into THREE PARTS NAMELY;
1) Those which refers to the conduct of elections required
to be observed by election officials;
2) Those provisions which candidates for public elective
office are required to do and comply with;
3) Those provisions which cover procedural rules designed
to ascertain, in case of dispute, the actual winner in the
elections.

The prescription that the petition must be sufficient in form and


substance means that the petition must be more than merely
rhetorical. If the allegations contained therein are unsupported by
even the faintest whisper of authority in fact and law, then there
is no other course than to dismiss the petition, otherwise, the
assumptions of an elected public official may, and will always be
held up by petitions of this sort by the losing candidate.
While statues providing for election contests are to be liberally
construed, the rule likewise stands, that in an election protest,
the protestant must stand or fall upon the issues he had
raised in his original or amended pleading filed prior to
the lapse of the statutory period for filing of the protest
considering that compliance therewith are rendered
mandatory for candidates.

Those which refers to the conduct of elections required to be


observed by election officials; The rules and regulations for
the conduct of elections are:

Mandatory before the elections, but when it is

Directory only after the elections most particularly if


innocent voters will be disenfranchised by the negligence or
omission of the elections officers (who will be liable either
criminally or administratively).

BINCE JR V. COMELEC
Laws governing election contests must be liberally construed to
the end that the will of the people in the choice of public officials
may not be defeated by mere technical objections.

1)

The petitions to correct manifest errors were filed on time, that


is, before the petitioner's proclamation on July 21, 1992. The
petition of the MBC of San Manuel was filed on June 4, 1992 while
that of still, the MBC of Tayug was filed on June 5, 1992. Still,
private respondent's petition was filed with the MBCs of Tayug
and San Manuel on June 10, 1992 and June 11, 1992,
respectively, definitely well within the period required by Section
6 (now Section 7), Rule 27 of the COMELEC Rules of Procedure.

3)

Assuming for the sake of argument that the petition was filed out
of time, this incident alone will not thwart the proper
determination and resolution of the instant case on substantial
grounds. Adherence to a technicality that would put a stamp of
validity on a palpably void proclamation, with the inevitable
result of frustrating the people's will cannot be countenanced.
Technicalities of the legal rules enunciated in the election laws
should not frustrate the determination of the popular will.

MARUHOM V. COMELEC
In enacting R.A. No. 8436, Congress obviously failed to provide a
remedy where the error in counting is not machine related for
human foresight is not all-seeing. We hold, however, that the
vacuum in the law cannot prevent the COMELEC from
levitating above the problem. Section 2(1) of Article IX (C) of
the Constitution gives the COMELEC the broad power "to enforce
and administer all laws and regulations relative to the conduct of
an election, plebiscite, initiative, referendum and recall."
Undoubtedly, the text and intent of this provision is to give the
COMELEC all the necessary and incidental powers for it to
achieve the objective of holding free, orderly, honest, peaceful
and credible elections. Congruent to this intent, this Court has

PENA V. HRET
A perusal of the petition Ad Cautelam, reveals that Petitioner
makes no specific mention of the precincts where widespread
election, fraud and irregularities occured. This is a fatal omission,
as it goes into the very substance of the protest. Under Section 21
of the Revised Rules of Procedure of HRET, insufficiency in form
and substance of the petition constitutes a ground for the
immediate dismissal of the Petition.

2)

4)
5)

LIMITATIONS TO THE LIBERAL CONSTRUCTION (WHEN


LIBERAL CONSTRUCTION POLICY NOT APPLICABLE)
When the amendment to pleadings in an election
contest will substantially change the cause of action, defense
or theory of the case;
When the amendment will alter a final judgment on a
substantial matter;
When the amendments will confer jurisdiction upon the
court when none existed before;
When it seeks to cure a premature or non-existent
cause of action
When the amendment is intended to delay the
proceedings of the case.

Hofer v. HRET, GR. No. 158833, May 12, 2005


the time limit for presentation of evidence of 20 days
conformably with Rule 59 of the HRET Rules is explicit and strictly
complied with. It is not a technicality that can be set aside as
would make the liberal construction policy operative.

The election protest filed by petitioner is a serious charge which,


if true, could unseat protestee as Representative of her district.
Hence, the observance of the HRET Rules in conjunction with our
own Rules of Court, must be taken seriously. Section 59 of the
1998 HRET Rules, quoted earlier, is explicit. Unfortunately,
petitioner did not comply with it. In fact, despite the lapse of six
(6) months (starting October 15, 2002 initial date of hearing),
she failed to present her evidence. Such inaction shows her utter
lack of interest to prosecute her case.

FERNANDEZ V. COMELEC
While Section 24 of Republic Act No. 7166, otherwise known as
An Act Providing For Synchronized National and Local Elections
and For Electoral Reforms, requires the BEI chairman to affix his

signature at the back of the ballot, the mere failure to do so does


not invalidate the same although it may constitute an election
offense imputable to said BEI chairman.

PUNZALAN V. COMELEC
Section 15 of RA 6646 as amended by Sec. 24 of RA 7166,
requires, in addition to the preliminary acts for the conduct of
vote as provided under Sec. 191 of the OEC, the Chairman, to
affix their signatures at the back of each and every ballot to be
used during the voting. The failure on the part of these election
officials to do their duties will not invalidate the ballot for to rule
otherwise would disenfranchise the voters and place a premium
on the official ineptness and make it possible for a small group of
functionaries, by their negligence or their deliberate inaction to
frustrate the will of the electorate. It may however constitute as
an election offense imputable to the said BEI Chairman.

BAUTISTA V. CASTRO
The absence of the signature of the Chairman of the Board of
Election Tellers in the ballot given to a voter as required by law
and the rules as proof of the authenticity of said ballot is fatal.
This requirement is mandatory for the validity of the said ballot.

MARCELINO LIBANAN V. HRET


a ballot without the BEI chairmans signature at the back is valid
and not spurious, provided that it bears any one o these other
authenticating marks, to wit
1)
the COMELEC watermark; and
2)
in those cases where the COMELEC watermarks
are blurred or not readily apparent, the presence of red
and blue fibers in the ballots.

the vacancy. However, in case of such vacancy in the Senate,


the special election shall be held simultaneously with the
succeeding regular election.
2)

RA 9369 An act amending RA 8346, titles An Act


Authorizing the Commission on Elections to Use An
Automated Election System in the May 11, 1998 National or
Local Elections and in Subsequent National and Local
Electoral Exercises

Paper-based election system - a type of automated


election system that uses paper ballots, records and
counts votes, tabulates, consolidates/canvasses and
transmits electronically the results of the vote count;"

Direct recording electronic election system - a


type of automated election system that uses electronic
ballots, records votes by means of a ballot display
provided with mechanical or electro-optical
components that can be activated by the voter,
processes data by means of a computer program,
records voting data and ballot images, and transmits
voting results electronically

3)

SEC. 5,6, 7 BP 881


Section 5 Postponement of election. - When for any
serious cause such as violence, terrorism, loss or destruction
of election paraphernalia or records, force majeure, and
other analogous causes of such a nature that the holding of
a free, orderly and honest election should become impossible
in any political subdivision, the Commission, motu proprio 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 therein to a date which should be reasonably close
to the date of the election not held, suspended or which
resulted in a failure to elect but not later than thirty days
after the cessation of the cause for such postponement or
suspension of the election or failure to elect.

KINDS OF ELECTIONS/DISTINCTIONS
a)

Section 6 Failure of election. - If, on account of force


majeure, violence, terrorism, fraud, or other analogous
causes the election in any polling place has not been held on
the date fixed, or had been suspended before the hour fixed
by law for the closing of the voting, or after the voting and
during the preparation and the transmission of the election
returns or in the custody or canvass thereof, such election
results in a failure to elect, and in any of such cases the
failure or suspension of election would affect the result of the
election, the Commission shall, on the basis of a verified
petition by any interested party and after due notice and
hearing, 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 thirty days after the cessation of the cause of such
postponement or suspension of the election or failure to
elect.

REGULAR ELECTIONS is an election held on such dates


established by law at regular intervals. Whether national or local,
it refers to an election participated in by
1) those who possess the right of suffrage,
2) are not otherwise disqualified by law and
3) who are registered voters.

PARAS V. COMELEC 264 SCRA 49 (1996) SK


election is not considered a regular elections because
the said elections are participated in by youth with ages
ranging from 15 to 21, some of whom are not qualified
voters to elect local or national elective officials
because under Sec. 1, Article V of the 1987 PC:
Section 1. Suffrage may be exercised by
1) all citizens of the Philippines
2) not otherwise disqualified by law,
3) who are at least eighteen years of age, and
4) who shall have resided in the Philippines for at least
one year, and
5) in the place wherein they propose to vote, for at
least six months immediately precedingthe election.
6) No literacy, property, or other substantive
requirement shall be imposed on the exercise of
suffrage.

b)

Section 7 Call of special election.


(1) In case a vacancy arises in the Batasang Pambansa
eighteen months or more before a regular election,
the Commission shall call a special election to be held
within sixty days after the vacancy occurs to elect the
Member to serve the unexpired term.
(2) In case of the dissolution of the Batasang Pambansa,
the President shall call an election which shall not be
held earlier than forty-five nor later than sixty days
from the date of such dissolution.

SPECIAL ELECTIONS
1)

RA 7166 - An act providing for synchronized national and


local elections and for electoral reforms, authorizing
appropriations therefor, and for other purposes
Sec. 4 Postponement, Failure of Election and Special
Elections. - The postponement, declaration of failure of
election and the calling of special elections as provided in
Sections 5, 6 and 7 of the Omnibus Election Code shall be
decided by the Commission sitting en banc by a majority
vote of its members. The causes for the declaration of a
failure of election may occur before or after the casting of
votes or on the day of the election.
In case a permanent vacancy shall occur in the Senate or
House of Representatives at least one (1) year before the
expiration of the term, the Commission shall call and hold a
special election to fill the vacancy not earlier than sixty (60)
days nor longer than ninety (90) days after the occurrence of

(3) The Commission shall send sufficient copies of its


resolution for the holding of the election to its
provincial election supervisors and election registrars
for dissemination, who shall post copies thereof in at
least three conspicuous places preferably where
public meetings are held in each city or municipality
affected.
4)

1987 CONSTITUTION
ARTICLE VII, Section 10.The Congress shall, at ten oclock
in the morning of the third day after the vacancy in the
offices of the President and Vice-President occurs, convene in
accordance with its rules without need of a call and within
seven days, enact a law calling for a special election to elect
a President and a Vice-President to be held not earlier than
forty-five days nor later than sixty days from the time of such

10

call. The bill calling such special election shall be deemed


certified under paragraph 2, Section 26, Article VI of this
Constitution and shall become law upon its approval on third
reading by the Congress. Appropriations for the special
election shall be charged against any current appropriations
and shall be exempt from the requirements of paragraph 4,
Section 25, Article VI of this Constitution. The convening of
the Congress cannot be suspended nor the special election
postponed. No special election shall be called if the vacancy
occurs within eighteen months before the date of the next
presidential election.

a)
b)
c)
d)

a)

RA 6735

b)

"The Initiative and Referendum Act."

a)

National Law or Law passed by the legislative assembly of


an autonomous region, province or city:
at least 10% of the total number of registered voters,
of which every legislative district is represented by at
least 3% of the registered voters thereof,
shall sign a petition for the purpose and register the
same with the COMELEC.
The percentage requirement is likewise applicable and
is deemed validly initiated to a referendum or initiative
affecting a law, resolution or ordinance
Law passed in a municipality
petition is signed by at least 10% of the RV of the
municipality
of which every barangay is represented by at least 3% of the
RV voters therein.
With respect to a barangay resolution or ordinance
signed by at least 10% of the registered voters of said
barangay.

INITIATIVE
2)
the power of the people to propose amendments to the constitution or
to propose and enact legislation through an election called for the
purpose.

Initiative is resorted to (or initiated) by the people directly either


because the law-making body fails or refuses to enact the law,
ordinance, resolution or act that they desire or because they
want to amend or modify one already existing.

Section 2. Article XVII of 1987 Constitution: Amendments to


this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of
the total number of registered voters, of which every legislative
district must be represented by at least three per centum of the
registered voters therein. No amendment under this section shall
be authorized within five years following the ratification of this
Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the
exercise of this right.

There are 3 systems of initiative:


a) Initiative on the Constitution which refers to a petition proposing
amendments to the Constitution;
b) Initiative on statutes which refers to a petition proposing to enact
a national legislation; and
c)
Initiative on local legislation which refers to a petition proposing to
enact a regional, provincial, city or municipal or barangay law,
resolution or ordinance.

INDIRECT INITIATIVE is exercised of initiative by the people


through a proposition sent to Congress or the local legislative
body for action.

REFERENDUM
the power of the electorate to approve or reject legislation through an
election called for the purpose.

The law-making body submits to the registered voters of its


territorial jurisdiction, for approval or rejection, any ordinance or
resolution which is duly enacted or approved by such law making
authority.

Referendum may be of 2 classes:


a)
Referendum on statutes which refer to a petition to
approve or reject an act or law, or part thereof, passed by
Congress; and
b)
Referendum on local law which refers to a petition to
approve or reject a law, resolution or ordinance enacted by
regional assemblies and local legislative bodies.
Sec. 4. Who may exercise. The power of initiative and referendum
may be exercised by all registered voters of the country, autonomous
regions, provinces, cities, municipalities and barangays.
Sec. 5, Requirements:
1) To exercise the power of INITIATIVE AND REFERENDUM:

a petition for an INITIATIVE on the 1987 Constitution,


a) must be signed by at least 12% of the total number of
registered voters,
b) of which every legislative district must be represented by at
least 3% of the voters therein.
c)
LIMITATION: Initiative may be initiated only after 5
years following the ratification of the 1987
Constitution and only once every five (5) years
thereafter.

PROCEDURE IN THE CONDUCT OF INITIATIVE AND


REFERENDUM:
1.
The COMELEC, shall schedule a special registration of voters at
least 3 weeks before the scheduled initiative or referendum.
2.
After determining the sufficiency of the petition, the COMELEC
shall, within 30 days, publish the same in Filipino and English at
least twice in a newspaper of general and local circulation and
set the date of the Initiative or Referendum not earlier than 45
days but not later than 90 days from the determination by the
COMELEC of the sufficiency of the petition.
3.
The Election Registrar shall verify the signatures on the petition
on the basis of the registry of voters, voters affidavits and voters
identification cards used in the immediately preceding elections.

EFFECTIVITY OF INITIATIVE or REFERENDUM


1) The national law proposed for enactment, approval or amendment
approved by a majority of the votes cast as certified by the
COMELEC, shall become effective 15 days following
completion of its publication in the Official Gazette or in a
newspaper of general circulation in the Philippines.
2)
The proposition to reject a national law approved by a majority of
the votes cast, shall be deemed repealed and the repeal shall
become effective 15 days following the completion of
publication of the proposition and the certification by the
Commission. But if the majority is not obtained, the
national law sought to be rejected or amended shall
remain in full force and effect.
3) With regards to the proposition in an initiative on the
CONSTITUTION approved by a majority of the votes cast in the
plebiscite, the same shall become effective as to the day of
the plebiscite.

I I.

NATIONAL INITIATIVE AND REFERENDUM

Sec. 8. Conduct and Date of Initiative or Referendum.


The Commission shall call and supervise the conduct of initiative or
referendum
1) Within a period of thirty (30) days from receipt of the
petition,
2) the Commission shall, upon determining the sufficiency of
the petition,
3) publish the same in Filipino and English at least twice in
newspapers of general and local circulation and
4) set the date of the initiative or referendum which shall NOT
be earlier than forty-five (45) days but not later than
ninety (90) days from the determination by the
Commission of the sufficiency of the petition.

11

Sec. 9. Effectivity of Initiative or Referendum Proposition.

PROPOSITION OF THE ENACTMENT, APPROVAL,


AMENDMENT OR REJECTION of a national law shall be
submitted to and approved by a majority of the votes cast by
all the registered voters of the Philippines.

If, as certified to by the Commission, the proposition is


approved by a majority of the votes cast, the national law
proposed for enactment, approval, or amendment shall
become effective fifteen (15) days following completion of its
publication in the Official Gazette or in a newspaper of
general circulation in the Philippines.

If, as certified by the Commission, the proposition to reject a


national law is approved by a majority of the votes cast, the
said national law shall be deemed repealed and the repeal
shall become effective fifteen (15) days following the
completion of publication of the proposition and the
certification by the Commission in the Official Gazette or in
newspaper of general circulation in the Philippines.

However, if the majority vote is not obtained, the national


law sought to be rejected or amended shall remain in full
force and effect.

(b) The proposition in an initiative on the Constitution


approved by a majority of the votes cast in the plebiscite
shall become effective as to the day of the plebiscite.

(c) A national or local initiative propositions approved by


majority of the votes cast in an election called for the
purpose shall become effective fifteen (15) days after
certification and proclamation by the Commission.

Sec. 10. Prohibited Measures. The following cannot be the subject


of an initiative or referendum petition:
(a) No petition embracing more than one (1) subject shall be
submitted to the electorate; and
(b) Statutes involving emergency measures, the enactment of
which are specifically vested in Congress by the Constitution,
cannot be subject to referendum until ninety (90) days after
its effectivity.
Sec. 11. Indirect Initiative. Any duly accredited people's
organization, as defined by law, may file a petition for indirect initiative
with the House of Representatives, and other legislative bodies. The
petition shall contain a summary of the chief purposes and contents of
the bill that the organization proposes to be enacted into law by the
legislature.
The procedure to be followed on the initiative bill shall be the same as
the enactment of any legislative measure before the House of
Representative except that the said initiative bill shall have precedence
over the pending legislative measures on the committee.
Sec. 12. Appeal. The decision of the Commission on the findings of
the sufficiency or insufficiency of the petition for initiative or
referendum may be appealed to the Supreme Court within thirty (30)
days from notice thereof.

I I.

LOCAL INITIATIVE AND REFERENDUM

Sec. 13. Procedure in Local Initiative.


(a) Not less than

(2,000) RV in case of autonomous regions,

(1,000) in case of provinces and cities,

(100) in case of municipalities, and

(50) in case of barangays,


may file a petition proposing the adoption, enactment,
repeal, or amendment, of any law, ordinance or
resolution with the

Regional Assembly or

local legislative body, respectively


(b)

(c)

If no favorable action thereon is made by local


legislative body within (30) days from its presentation,

the proponents through their duly authorized


and registered representative may invoke
their power of initiative,

giving notice thereof to the local legislative


body concerned.
The proposition shall be numbered serially starting from
one (1). The Secretary of Local Government or his

(d)
(e)

designated representative shall extend assistance in


the formulation of the proposition.
Two or more propositions may be submitted in an
initiative.
from notice mentioned in subsection (b) hereof to
collect the required number of signatures proponents
shall have

(120) days in case of autonomous regions,

(90) days in case of provinces and cities,

(60) days in case of municipalities, and

(30) days in case of barangays,

(f)

The petition shall be signed before the Election


Registrar, or his designated representative, in the
presence of a representative of the proponent, and a
representative of the regional assemblies and local
legislative bodies concerned in a public place in the
autonomous region or local government unit, as the
case may be. Signature stations may be established in
as many places as may be warranted.

(g)

Upon the lapse of the period herein provided, the


Commission on Elections, through its office in the local
government unit concerned shall certify as to whether
or not the required number of signatures has been
obtained. Failure to obtain the required number is a
defeat of the proposition.

(h)

If the required number of the signatures is obtained, the


Commission shall then set a date for the initiative at
which the proposition shall be submitted to the
registered voters in the local government unit
concerned for their approval within

ninety (90) days from the date of certification


by the Commission, as provided in subsection
(g) hereof, in case of autonomous regions,

sixty (60) days in case of the provinces and


cities,

forty-five (45) days in case of municipalities,


and

thirty (30) days in case of barangays.


The initiative shall then be held on the date
set, after which the results thereof shall be
certified and proclaimed by the Commission
on Elections.

Sec. 14. Effectivity of Local Propositions. If the proposition is


approved by a majority of the votes cast, it shall take effect fifteen (15)
days after certification by the Commission as if affirmative action
thereon had been made by the local legislative body and local
executive concerned. If it fails to obtain said number of votes, the
proposition is considered defeated.
Sec. 15. Limitations on Local Initiatives.
(a) The power of local initiative shall not be exercised more than
once a year.
(b) Initiative shall extend only to subjects or matters which are
within the legal powers of the local legislative bodies to enact.
(c) If at any time before the initiative is held, the local legislative
body shall adopt in toto the proposition presented, the initiative
shall be canceled. However, those against such action may, if
they so desire, apply for initiative in the manner herein provided.
Sec. 16. Limitations Upon Local Legislative Bodies.
Any proposition or ordinance or resolution approved through the
system of initiative and referendum as herein provided shall NOT be
repealed, modified or amended, by the local legislative body concerned
within six (6) months from the date therefrom, and may be amended,
modified or repealed by the local legislative body within (3/4) of all its
members: Provided, however, that in case of barangays, the period
shall be in (1) year after the expiration of the first six (6) months.
Sec. 17. Local Referendum.
Notwithstanding the provisions of Section 4 hereof, any local legislative
body may submit to the registered voters of autonomous region,
provinces, cities, municipalities and barangays for the approval or
rejection, any ordinance or resolution duly enacted or approved.
Said referendum shall be held under the control and direction of the
Commission within sixty (60) days in case of provinces and cities, fortyfive (45) days in case of municipalities and thirty (30) days in case of
barangays.

12

The Commission shall certify and proclaim the results of the said
referendum.
Sec. 18. Authority of Courts. Nothing in this Act shall prevent or
preclude the proper courts from declaring null and void any proposition
approved pursuant to this Act for violation of the Constitution or want
of capacity of the local legislative body to enact the said measure.

Santiago v. COMELEC 270 SCRA 106, 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 the
COMELEC to issue rules and regulations is limited only to what is
provided under (A) Section 3 of Article IX-C of the Constitution, or
(b) by a law where subordinate legislation is authorized and which
satisfies the completeness and sufficiency standard
tests.
In this case the petition to propose amendments to the
Constitution particularly the lifting of the term limits of public
elective officials was not validly initiated as it failed to comply
with the signature requirement for initiating an Initiative (Petition
signed by at least 12% of all the registered voters where each
legislative district is represented at least by 3%) . The COMELEC
never acquired jurisdiction over the petition as jurisdiction is
acquired only after its filing the petition being the initiatory
pleading.
We cannot accept the argument that the initiative on
amendments to the Constitution is subsumed under the subtitle
on National Initiative and Referendum because it is national in
scope. Our reading of Subtitle II (National Initiative and
Referendum) and Subtitle III (Local Initiative and Referendum)
leaves no room for doubt that the classification is not based on
the scope of the initiative involved, but on its nature and
character.
NATIONAL VS LOCAL INITIATIVE (SEC. 3, A.2, 3, RA 6375)
a) It is national initiative, if what is proposed to be adopted or
enacted is a national law, or a law which only Congress can
pass.
b) It is local initiative if what is proposed to be adopted or
enacted is a law, ordinance, or resolution which only the
legislative bodies of the governments of the autonomous
regions, provinces, cities, municipalities, and barangays can
pass.

Lambino vs. COMELEC, G.R. No. 174153, Oct. 25, 2006


FACTS: The Lambino Group commenced gathering signatures for
an initiative petition to change the 1987 Constitution and then
filed a petition with COMELEC to hold a plebiscite for ratification
under Sec. 5(b) and (c) and Sec. 7 of RA 6735. The proposed
changes under the petition will shift the present BicameralPresidential system to a Unicameral-Parliamentary form of
government. COMELEC did not give it due course for lack of an
enabling law governing initiative petitions to amend the
Constitution, pursuant to Santiago v. COMELEC ruling.
ISSUES:
Whether the proposed changes constitute an amendment or
revision
Whether the initiative petition is sufficient compliance with the
constitutional requirement on direct proposal by the people
RULING:
Initiative petition does not comply with Sec. 2, Art. XVII on direct
proposal by people
Sec. 2, Art. XVII...is the governing provision that allows a
peoples initiative to propose amendments to the Constitution.
While this provision does not expressly state that the petition
must set forth the full text of the proposed amendments, the
deliberations of the framers of our Constitution clearly show that:
(a) the framers intended to adopt relevant American
jurisprudence on peoples initiative; and (b) in particular, the
people must first see the full text of the proposed amendments
before they sign, and that the people must sign on a petition
containing such full text.
The essence of amendments directly proposed by the
people through initiative upon a petition is that the entire
proposal on its face is a petition by the people. This means two
essential elements must be present.

2 ELEMENTS OF INITIATIVE
(1) First, the people must author and thus sign the entire
proposal. No agent or representative can sign on their behalf.
(2) Second, as an initiative upon a petition, the proposal must be
embodied in a petition.
These essential elements are present only if the full text of
the proposed amendments is first shown to the people who
express their assent by signing such complete proposal in a
petition. The full text of the proposed amendments may be either
written on the face of the petition, or attached to it. If so attached,
the petition must stated the fact of such attachment. This is an
assurance that everyone of the several millions of signatories to
the petition had seen the full text of the proposed amendments
before not after signing.
Moreover, an initiative signer must be informed at the time
of signing of the nature and effect of that which is proposed and
failure to do so is deceptive and misleading which renders the
initiative void.
In the case of the Lambino Groups petition, theres not a
single word, phrase, or sentence of text of the proposed changes
in the signature sheet. Neither does the signature sheet state that
the text of the proposed changes is attached to it. The signature
sheet merely asks a question whether the people approve a shift
from the Bicameral-Presidential to the Unicameral- Parliamentary
system of government. The signature sheet does not show to the
people the draft of the proposed changes before they are asked to
sign the signature sheet. This omission is fatal.
An initiative that gathers signatures from the people without
first showing to the people the full text of the proposed
amendments is most likely a deception, and can operate as a
gigantic fraud on the people. Thats why the Constitution requires
that an initiative must be directly proposed by the people x x x in
a petition - meaning that the people must sign on a petition that
contains the full text of the proposed amendments. On so vital an
issue as amending the nations fundamental law, the writing of
the text of the proposed amendments cannot be hidden from the
people under a general or special power of attorney to unnamed,
faceless, and unelected individuals.
The initiative violates Section 2, Article XVII of the Constitution
disallowing revision through initiatives
Article XVII of the Constitution speaks of three modes of
amending the Constitution. The first mode is through Congress
upon three-fourths vote of all its Members. The second mode is
through a constitutional convention. The third mode is through a
peoples initiative.
Section 1 of Article XVII, referring to the first and second
modes, applies to any amendment to, or revision of, this
Constitution. In contrast, Section 2 of Article XVII, referring to the
third mode, applies only to amendments to this Constitution.
This distinction was intentional as shown by the deliberations of
the Constitutional Commission. A peoples initiative to change the
Constitution applies only to an amendment of the Constitution
and not to its revision. In contrast, Congress or a constitutional
convention can propose both amendments and revisions to the
Constitution.
Does the Lambino Groups initiative constitute a revision of the
Constitution?
Yes. By any legal test and under any jurisdiction, a shift from
a Bicameral-Presidential to a Unicameral-Parliamentary system,
involving the abolition of the Office of the President and the
abolition of one chamber of Congress, is beyond doubt a revision,
not a mere amendment.
Amendment vs. Revision
Revision broadly implies a change that alters a basic
principle in the constitution, like altering the principle of
separation of powers or the system of checks-and-balances. There
is also revision if the change alters the substantial entirety of the
constitution, as when the change affects substantial provisions of
the constitution. On the other hand, amendment broadly refers to
a change that adds, reduces, or 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.
Where the proposed change applies only to a specific
provision of the Constitution without affecting any other section or
article, the change may generally be considered an amendment
and not a revision. For example, a change reducing the voting age
from 18 years to 15 years is an amendment and not a revision.
Similarly, a change reducing Filipino ownership of mass media
companies from 100% to 60% is an amendment and not a
revision. Also, a change requiring a college degree as an

13

additional qualification for election to the Presidency is an


amendment and not a revision.
The changes in these examples do not entail any
modification of sections or articles of the Constitution other than
the specific provision being amended. These changes do not also
affect the structure of government or the system of checks-andbalances among or within the three branches.
However, there can be no fixed rule on whether a change is
an amendment or a revision. A change in a single word of one
sentence of the Constitution may be a revision and not an
amendment. For example, the substitution of the word
republican with monarchic or theocratic in Section 1, Article
II of the Constitution radically overhauls the entire structure of
government and the fundamental ideological basis of the
Constitution. Thus, each specific change will have to be examined
case-by-case, depending on how it affects other provisions, as
well as how it affects the structure of government, the carefully
crafted system of checks-and-balances, and the underlying
ideological basis of the existing Constitution.
Since a revision of a constitution affects basic principles, or
several provisions of a constitution, a deliberative body with
recorded proceedings is best suited to undertake a revision. A
revision requires harmonizing not only several provisions, but also
the altered principles with those that remain unaltered. Thus,
constitutions normally authorize deliberative bodies like
constituent assemblies or constitutional conventions to undertake
revisions. On the other hand, constitutions allow peoples
initiatives, which do not have fixed and identifiable deliberative
bodies or recorded proceedings, to undertake only amendments
and not revisions.
Tests to determine whether amendment or revision
In California where the initiative clause allows amendments
but not revisions to the constitution just like in our Constitution,
courts have developed a two-part test: the quantitative test and
the qualitative test. The quantitative test asks whether the
proposed change is so extensive in its provisions as to change
directly the substantial entirety of the constitution by the deletion
or alteration of numerous existing provisions. The court examines
only the number of provisions affected and does not consider the
degree of the change.
The qualitative test inquires into the qualitative effects of the
proposed change in the constitution. The main inquiry is whether
the change will accomplish such far reaching changes in the
nature of our basic governmental plan as to amount to a revision.
Whether there is an alteration in the structure of government is a
proper subject of inquiry. Thus, a change in the nature of [the]
basic governmental plan includes change in its fundamental
framework or the fundamental powers of its Branches. A change
in the nature of the basic governmental plan also includes
changes that jeopardize the traditional form of government and
the system of check and balances.
Under both the quantitative and qualitative tests, the
Lambino Groups initiative is a revision and not merely an
amendment. Quantitatively, the Lambino Groups proposed
changes overhaul two articles - Article VI on the Legislature and
Article VII on the Executive - affecting a total of 105 provisions in
the entire Constitution. Qualitatively, the proposed changes alter
substantially the basic plan of government, from presidential to
parliamentary, and from a bicameral to a unicameral legislature.
A change in the structure of government is a revision
A change in the structure of government is a revision of the
Constitution, as when the three great co-equal branches of
government in the present Constitution are reduced into two. This
alters the separation of powers in the Constitution. A shift from
the present Bicameral-Presidential system to a UnicameralParliamentary system is a revision of the Constitution. Merging
the legislative and executive branches is a radical change in the
structure of government. The abolition alone of the Office of the
President as the locus of Executive Power alters the separation of
powers and thus constitutes a revision of the Constitution.
Likewise, the abolition alone of one chamber of Congress alters
the system of checks-and-balances within the legislature and
constitutes a revision of the Constitution.
The Lambino Group theorizes that the difference between
amendment and revision is only one of procedure, not of
substance. The Lambino Group posits that when a deliberative
body drafts and proposes changes to the Constitution, substantive
changes are called revisions because members of the deliberative
body work full-time on the changes. The same substantive
changes, when proposed through an initiative, are called
amendments because the changes are made by ordinary people
who do not make an occupation, profession, or vocation out of
such endeavor. The SC, however, ruled that the express intent of

the framers and the plain language of the Constitution contradict


the Lambino Groups theory. Where the intent of the framers and
the language of the Constitution are clear and plainly stated,
courts do not deviate from such categorical intent and language.

SBMA v. COMELEC 252 SCRA 492 (1996).


FACTS: Sangguniang bayan passed Pambayang Kapasyahan
Bilang 10, Serye 1993, expressing therein its absolute
concurrence as required by RA 7227 (Bases Conversion and
Development Act) to join the Subic Special Economic Zone. On
September 5, 1993, the SB submitted the Kapasyahan to the
Office of the President. Petitioner SBMA seeks to nullify the
respondent COMELECs Orders denying petitioners plea to stop
the holding of a local initiative and referendum on the proposition
to recall the Kapasyahan.

To begin with, the process started by respondents 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, the canvassers referendum board of canvassers and the
ballots themselves bore the description referendum.
SC DISTINGUISHED INITIATIVE FROM REFERENDUM:
Initiative

Referendum

Initiative is a process of lawmaking by the people


themselves without the
participation and against the
wishes of their elected
representatives,
The process and the voting in
an initiative are more complex.

Referendum consists merely of


the electorate approving or
rejecting what has been drawn
up or enacted by a legislative
body.
Voters simply write either
yes or no in the ballot

The Constitution clearly includes not only ordinances but


also resolutions (which pertains to an act passed by a local
legislative body) as appropriate subjects of a local initiative in
accordance with Section 32 Article VI of the Constitution.

RECALL
DEFINITION/NATURE

Garcia vs. COMELEC 227 SCRA 100 (1993) Recall is a mode of


removal of a public officer by the people before the end of his
term of office. The people's prerogative to remove a public officer
is an incident of their sovereign power and in the absence of
constitutional restraint, the power is implied in all governmental
operations. Such power has been held to be indispensable for the
proper administration of public affairs. 12 Not undeservedly, it is
frequently described as a fundamental right of the people in a
representative democracy. 13

MODES OF INITIATING RECALL


Limited to a petition commenced only by the registered voters in the
local unit concerned.
Section 70: 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 with the following percentage requirement:

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 LGUs 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: Provided, however, that in
no case shall the required petitioners be less than 45,000.

14

(1) Initiated by a written petition for recall duly signed before


the Election Registrar or his representative and in the
presence of a representative of the petitioner and a
representative of the official sought to be recalled, and in a
public place in the province, city, municipality or brgy. as
the case may be, shall be filed with the COMELEC through
its office in the local government unit concerned.
(2) The COMELEC shall cause the publication of the petition in a
public and conspicuous place for a period of not less than 10 days
nor more than 20 days, for the purpose of verifying the
authenticity and genuineness of the petition and the required
percentage of voters.
(3) Upon the lapse of the said period, the COMELEC shall announce
the acceptance of candidates to the position and prepare the list
of candidates including the names of the official sought to be
recalled (as he is automatically considered a registered candidate
and entitled to be voted upon (Sec. 71 RA 7160) but who is
prohibited to resign while the recall proceeding is in progress (Sec.
73).

PROCEDURE/EFFECTIVITY/LIMITATIONS
Section 71:
ELECTION ON RECALL

Upon the filing of the resolution or petition, the Comission or its


duly authorized representative shall set the date of the election
on recall not later than 30 days for city, brgy. or municipal officials
and 45 days for provincial officials.
Section 72:
EFFECTIVITY OF RECALL

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).
Section 73:
PROHIBITION FROM RESIGNATION The elective local official
sought to be recalled shall not be allowed to resign while the recall
process is in progress.
Section 74:
LIMITATIONS ON RECALL

an elective official may be subject of recall elections only once


during his term exclusively on the ground of lack of
confidence.

The recall cannot be undertaken within 1 year from the


date of the officials assumption of office or one (1) year
immediately preceding a regular election (Sec. 74).

Paras v. COMELEC 264 SCRA 49: SK elections is not


considered a regular local elections for purposes of
recall under Sec. 74 of RA 7160. 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. for
the time bar to apply, the approaching regular local
election must be one where the position of the official to
be recalled, is to be actually contested and filled by the
electorate.
Angobung v. COMELEC 269 SCRA 245, the petition to initiate
recall proceedings must be filed by at least 25% of the
total number of RV and cannot be filed by one person only.
The law merely stated that the recall be initiated by a
petition of at least 25% of the RV and did not provide
that the petition must be signed, considering that
process of signing is statutorily required to be undertaken
before the ER.
Malonzo v. COMELEC and the Liga ng mga barangay March 11,
1997, Malonzo questioned the validity of recall proceedings
initiated by the said Liga composed of Punong Barangays and SK
Chairmen. The SC upheld the validity of the recall proceedings
and stated that while the Liga is an entity distinct from the PRA, it
so happens that the personalities representing the barangays in
the Liga are the very same members of the PRA, the majority of

whom met and voted in favor of the resolution calling for the
recall of Mayor Malonzo.

Jovito Claudio v. COMELEC et. al and PRA of Pasay v.


COMELEC 331 SCRA 388 (2000),
Two issues were settled in the matter of recall:
1. On whether the word Recall in par. (b) of Sec. 74 of RA
7160 includes the convening of the PRA and the filing by it
of a recall resolution and
2. On whether the phrase Regular Local Elections in the same
paragraph includes the election period for that regular
election or simply the date of the election.
Facts: Claudio was the mayor of Pasay who assumed office
on July 1, 1998. Subsequently in May 29, 1999, of the 1,790
members of the PRA 1079 adopted the resolution entitled
Resolution to initiate the recall of Claudio as Mayor for Loss
of Confidence.
Claudio and two others, filed oppositions alleging procedural
and substantive defects among which and more importantly
anent the issue at hand, that the convening of the PRA
took place within one-year prohibited period.
Held:
First Issue the petitioner claims that when several
barangay chairpersons met and convened on May 19, 1999
and resolved to initiate the recall, followed by the taking of
votes on May 29, 1999, the process of recall began and that
since May 29, 1999 was less than 1 year after he had
assumed office, the PRA was illegally convened and all
proceedings held thereafter, including the filing of the recall
petition in July 2, 1999 were null and void.
The COMELEC on the other hand, maintains that the
process of recall starts with the filing of the petition for
recall and ends with the conduct of the recall elections and
that, since the petition for recall was filed on July 2, 1999,
exactly one year and 1 day after petitioners assumption of
office, he recall was validly initiated outside the one year
prohibited period. Both petitioner and COMELEC agreed that
the term recall as used in Sec. 74 refers to a process. They
however disagree as to when the process starts for the
purpose of the one year limitation in par. (b) of Sec. 74.
RECALL as used in par. (b) of Sec. 74 refers to the
election itself by means of which voters decide
whether they should retain their local officials or elect
his replacement. Sec. 74 deals with restrictions on the
power of recall. On the other hand, Sec. 69 provides that the
power of recall shall be exercised by the registered voters of
the local government unit to which the local elective official
belongs. Since the power vested on the electorate is
not the power to initiate recall proceedings (such
power is vested in the PRA or in at least 25% of the
registered voters under Sec. 70), but the power to
elect an official into office, the limitations in Sec. 74
cannot be deemed to apply to the entire recall
proceedings.
In other words, recall in par. (b) of Sec. 74 refers
only to the RECALL ELECTION, which excludes the
preliminary proceedings to initiate recall such as the
convening of the PRA and the filing of a petition for recall
with the COMELEC, or the gathering of signatures of at least
25% of the voters for a petition for recall. Considering that
the recall election in Pasay was set on April 15, 2000, more
than one after the petitioner assumed office as mayor of that
city, the SC held that there is no bar to its holding on said
date.
As to the Second Issue petitioner argued that the phrase
regular local elections in par. (b) of Sec. 74 does not only
mean the day of the regular local elections which for the
year 2001 is May 14, but the election period as well, at 45
days immediately before the day of the election. Thus
contending that beginning March 30, 2000, no recall election
may be held.
Had congress intended this limitation to refer to the
campaign period, which period is defined in the OEC, it could
have expressly said so. If we follow petitioners
interpretation, it would severely limit the period a
recall election will be held.

15

Manuel Afiado et. al. vs. COMELEC 340 SCRA 600, the issue is
WoN an elective official who became Mayor by legal succession
can be the subject of a recall election by virtue of a PRA
Resolution passed or adopted when the said elective official was
still the Vice-Mayor.
Facts: Miranda became the substitute candidate for his father, for
the position of Mayor. Joel emerged as the winner over his
opponent Abaya and he was later proclaimed with Navarro as
Vice-Mayor.
Defeated Abaya filed with the COMELEC a Petition to Declare Null
and Void Substitution which later was amended seeking to declare
the certificate of candidacy of the father, Jose Miranda, as null and
void. The COMELEC ruled that the Certificate of candidacy was
not valid, hence, he cannot be validly substituted by his son Joel,
as a mayoralty candidate in Santiago City.
While the Petition of Joel was pending with the SC, the PRA of
Santiago City convened on July 12, 1999 and adopted a Resolution
calling for the recall of Vice-Mayor Navarro for loss of confidence.

Section 4. Article XVII1987 PC;


Any amendment to, or revision of, this Constitution shall be valid
when ratified by a majority of the votes cast in a plebiscite which shall
be held not earlier than 60 days nor later than 90 days after the
approval of such amendment or revision. Xxx

SEC 10 ARTICLE X OF THE 1987 PC


No province, city, municipality, or barangay may be created, divided,
merged, abolished, or its boundary substantially altered, except in
accordance with the criteria established in the local government code
and subject to approval by a majority of the votes cast in a plebiscite in
the political units directly affected.crala

After the Supreme court denied with finality the Petition of Joel,
Vice-Mayor Navarro assumed and took oath as new mayor of
Santiago City.
COMELEC denied due course the PRA Resolution as moot for the
reason that the assumption by legal succession of petitioner as
the new Mayor is a supervening event which rendered the recall
proceedings against her moot and academic.
The SC referred to the Resolution itself which specifically
referred to the recall of Navarro as Vice-Mayor for her
official acts as VM. Even if the PRA were to reconvene to
adopt another resolution for the recall of Navarro, this
time as Mayor, the same would still not prosper in view of
the limitation as prescribed in Sec. 74 which provides that
No recall shall take place within one year from the date
of the officials assumption of office or one year
immediately preceding a regular elections. Navarro
assumed office on October 11, 1999 and recall elections can only
be initiated between October 11, 2000 to October 11, 2001 which
is now barred by the May 14, 2001 elections.

NATURE, REQUIREMENT, JURISDICTION

Sanidad v. COMELEC 181 SCRA 529 the Supreme Court


declared as unconstitutional the restriction imposed by the
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 Plebiscites 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.

Padilla Jr. vs. 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 did not favor the creation of Tulay-na-lupa.
Petitioner Gov. of Camarines Norte in a special Civil Action of
Certiorari seek to set aside the Plebiscite contending that it was a
complete failure and that the results obtained were invalid and
illegal because the Plebiscite as mandated by COMELEC Res. 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.

PLEBISCITE

PLEBISCITE is the vote of the entire people or the aggregate of


the enfranchised individuals composing a state or nation
expressing their choice for a proposed measure.
"Plebiscite" is the electoral process by which an initiative on the
Constitution is approved or rejected by the people Sec 3(e), RA
6735
It is generally associated with the amending process of the
Constitution, particularly on the ratification aspects and is
required under the following:
a) Section 4 Art. XVII with reference to amendments or
revisions to the Constitution which may be proposed by
congress upon of the votes of all its members or by
constitutional convention
b) Sec. 10 Art. X relating to the creation, abolition, merging,
division or alteration of the boundaries of any political unit.

DEFINITION/PROCESS;
Section 1 ARTICLE XVII1987 PC;
Any amendment to, or revision of, this Constitution may be proposed
by:
(1) The Congress, upon a vote of three-fourths of all its Members; or
(2) A constitutional convention.
Section 2. Article XVII1987 PC;
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 three per centum of the registered voters therein.
LIMITATION:

No amendment under this section shall be authorized within


five years following the ratification of this Constitution nor
oftener than once every 5 years thereafter.
The Congress shall provide for the implementation of the
exercise of this right.

HELD: With the approval and ratification of the 1987 Constitution,


more particularly Art. X, Sec. 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 case
in a Plebiscite in the POLITICAL UNITS AFFECTED and
reiterated its ruling in Tan v. COMELEC 142 SCRA 727 (1986)
that in the conduct of a Plebiscite, it is imperative that all
constituents of the mother and daughter units affected shall be
included. The term political units directly 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.

Tan v. COMELEC , we struck down the moot and academic


argument as follows -- Considering that the legality of the
plebiscite itself is challenged for non-compliance with
constitutional requisites, the fact that such plebiscite had been
held and a new province proclaimed and its officials appointed,
the case before Us cannot truly be viewed as already moot and
academic. Continuation of the existence of this newly proclaimed
province which petitioners strongly profess to have been illegally
born, deserves to be inquired into by this Tribunal so that, if
indeed, illegality attaches to its creation, the commission of that
error should not provide the very excuse for perpetration of such
wrong. For this Court to yield to the respondents urging that, as
there has been fait accompli, then this Court should passively
accept and accede to the prevailing situation is an unacceptable
suggestion. Dismissal of the instant petition, as respondents so
propose is a proposition fraught with mischief. Respondents
submission will create a dangerous precedent. Should this Court
decline now to perform its duty of interpreting and indicating

16

what the law is and should be, this might tempt again those who
strut about in the corridors of power to recklessly and with
ulterior motives, create, merge, divide and/or alter the
boundaries of political subdivisions, either brazenly or stealthily,
confident that this Court will abstain from entertaining future
challenges to their acts if they manage to bring about a fait
accompli.

Tobias et. al. v. Abalos Dec. 8, 1994 (En Banc), the exclusion
of the constituents of San Juan to participate in the Plebiscite for
the ratification of RA 7675 relative to the conversion of
Mandaluyong into a highy urbanized city notwithstanding that it
involved a change in their legislative district was upheld for the
reason that the matter of separate district representation is
merely ancillary to the conversion of Mandaluyong into a highly
urbanized city.
City of Pasig vs. COMELEC/Municipality of Cainta Province
of Rizal, Sept. 10, 1999, the issue as to 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 was raised.
FACTS: The City of Pasig passed on Ordinance creating barangays
Karangalan and Napico. The Municipality of Cainta moved to
suspend or cancel the respective Plebiscite due to the pending
case before the RTC of Antipolo for the settlement of the boundary
dispute and prayed for its suspension or cancellation until the
dispute is decided by the RTC. The COMELEC suspended the
holding of the Plebiscite for the creation of Brgy. Karangalan but
rendered the creation of Napico as moot as the same was already
ratified in the Plebiscite held for the purpose.
HELD: 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 BRGYS. BE CONDUCTED.

Salva V. Macalintal does not support the overarching thesis that


"any question on the validity of plebiscite, or any dispute on the
result of the plebiscite falls within the general jurisdiction of
regular trial courts." Looking at it with clear eyes, Salva resolved
the validity, NOT of a plebiscite or its result, but of a provision in
the rules and regulations issued by the COMELEC governing the
conduct of a plebiscite.
To grant the RTC jurisdiction over petitions to annul plebiscite
results can lead to jumbled justice. Consider for instance where
the plebiscite is national as it deals with the ratification of a
proposed amendment to our Constitution. Snap thinking will tell
us that it should be the COMELEC that should have jurisdiction
over a petition to annul its results. If jurisdiction is given to the
regular courts, the result will not enhance the orderly
administration of justice. Any regional trial court from every nook
and corner of the country will have jurisdiction over a petition
questioning the results of a nationwide plebiscite. Bearing in mind
that the jurisdiction of these courts is limited only within their
respective judicial regions, the difficulties that will attend their
exercise of jurisdiction would be many if not unmanageable.

Ma. Salavacion Buac/Antonio Bautista vs. COMELEC, Alan Peter


Cayetano, GR 155855, January 26, 2004
FACTS: 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 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
PBC 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 in the plebiscite conducted.
Petitioners filed with the COMELEC a petition to annul the results of
the plebiscite with a prayer for revision and recount of the ballots
cast therein. 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 subject of an election protests.


He averred that the jurisdiction to hear a complaint involving the
conduct of a plebiscite is lodged with the RTC.
The COMELEC 2nd division initially gave due course to the petition
and ruled 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.
In an unverified motion, Intervenor Cayetano 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 on November 29, 2001 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 quasi-judicial powers not
contemplated under Section 2(2), Article IX-C of the Constitution.
On appeal, the COMELEC En Banc affirmed the ruling of its 2nd
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 quasi-judicial 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 quasi-judicial functions. Hence,
the petition before the SC.
Petitioner reiterates:
1.
Jurisdiction to decide plebiscite protest cases is
constitutionally vested with the COMELEC
2.
COMELEC Order is discriminatory as during the pendency of
the Taguig case, the COMELEC assumed jurisdiction over a
similar case concerning the revision and recount of the
plebiscite ballots involving the conversion of Malolos into a
City. COMELEC resolved the said case and already declared
Malolos a city.
Respondent COMELEC/Cayetano contends that:
1.
There is no such action as a plebiscite protest under the
Constitution;
2.
The laws and the COMELEC rules provided only for election
protests;
3.
The quasi-judicial jurisdiction of the COMELEC over election
contests extends only to cases enumerated in Section 2(2),
Article XI of the Constitution (sole judge of all contests
involving), which does not include controversies over
plebiscite results, and;
4.
Even if the petition to annul plebiscite results is akin to an
election protests, it is the RTC that has jurisdiction over
election protests involving municipal officials and the
COMELEC has only appellate jurisdiction in said cases.
HELD: 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
as defined under Section 1, Article VIII of the Constitution as the
duty of the court of justice to settle actual controversies involving
the 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.
The instant case assailing the regularity of the conduct of the
Taguig Plebiscite does not fit the kind of 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

17

act or acts necessary to bring into actual effect or operation, a


plan or measure which entails all the 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
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.

18

COMELEC
ARTICLE IX-C. THE COMMISSION ON ELECTIONS
Section 1. (1) There shall be a Commission on Elections
composed of a Chairman and six Commissioners who shall be
natural-born citizens of the Philippines and, at the time of
their appointment, at least thirty-five years of age, holders of
a college degree, and must not have been candidates for any
elective positions in the immediately preceding elections.
However, a majority thereof, including the Chairman, shall be
members of the Philippine Bar who have been engaged in the
practice of law for at least ten years.
(2) The Chairman and the Commissioners shall be appointed
by the President with the consent of the Commission on
Appointments for a term of seven years without
reappointment. Of those first appointed, three Members shall
hold office for seven years, two Members for five years, and
the last Members for three years, without reappointment.
Appointment to any vacancy shall be only for the unexpired
term of the predecessor. In no case shall any Member be
appointed or designated in a temporary or acting capacity.
Sec. 2. The Commission on Elections shall exercise the
following powers and functions:
(1) Enforce and administer all laws and regulations relative to
the conduct of an election, plebiscite, initiative, referendum,
and recall.
(2) Exercise exclusive original 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 elective municipal
officials decided by trial courts of general jurisdiction, or
involving elective barangay officials decided by trial courts of
limited jurisdiction.
Decisions, final orders, or rulings of the Commission on
election contests involving elective municipal and barangay
offices shall be final, executory, and not appealable.
(3) Decide, except those involving the right to vote, all
questions affecting elections, including determination of the
number and location of polling places, appointment of election
officials and inspectors, and registration of voters.
(4) Deputize, with the concurrence of the President, law
enforcement agencies and instrumentalities of the
Government, including the Armed Forces of the Philippines, for
the exclusive purpose of ensuring free, orderly, honest,
peaceful, and credible elections.
(5) Register, after sufficient publication, political parties,
organizations, or coalitions which, in addition to other
requirements, must present their platform or program of
government; and accredit citizens' arms of the Commission on
Elections. Religious denominations and sects shall not be
registered. Those which seek to achieve their goals through
violence or unlawful means, or refuse to uphold and adhere to
this Constitution, or which are supported by any foreign
government shall likewise be refused registration.
Financial contributions from foreign governments and their
agencies to political parties, organizations, coalitions, or
candidates related to elections, constitute interference in
national affairs, and, when accepted, shall be an additional
ground for the cancellation of their registration with the
Commission, in addition to other penalties that may be
prescribed by law.

(6) File, upon a verified complaint, or on its own initiative,


petitions in court for inclusion or exclusion of voters;
investigate and, where appropriate, prosecute cases of
violations of election laws, including acts or omissions
constituting election frauds, offenses, and malpractices.
(7) Recommend to the Congress effective measures to
minimize election spending, including limitation of places
where propaganda materials shall be posted, and to prevent
and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidacies.
(8) Recommend to the President the removal of any officer or
employee it has deputized, or the imposition of any other
disciplinary action, for violation or disregard of, or
disobedience to, its directive, order, or decision
(9) Submit to the President and the Congress, a
comprehensive report on the conduct of each election,
plebiscite, initiative, referendum, or recall
Section 3. The Commission on Elections may sit en banc or in
two divisions, and shall promulgate its rules of procedure in
order to expedite disposition of election cases, including preproclamation controversies. 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.
Section 4. The Commission may, during the election period,
supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation and
other public utilities, media of communication or information,
all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality
thereof, including any government-owned or controlled
corporation or its subsidiary. Such supervision or regulation
shall aim to ensure equal opportunity, and equal rates
therefor, for public information campaigns and forums among
candidates in connection with the objective of holding free,
orderly, honest, peaceful, and credible elections.
Section 5. No pardon, amnesty, parole, or suspension of
sentence for violation of election laws, rules, and regulations
shall be granted by the President without the favorable
recommendation of the Commission.cralaw
Section 6. A free and open party system shall be allowed to
evolve according to the free choice of the people, subject to
the provisions of this Article.
Section 7. No votes cast in favor of a political party,
organization, or coalition shall be valid, except for those
registered under the party-list system as provided in this
Constitution.
Section 8. Political parties, or organizations or coalitions
registered under the party-list system, shall not be
represented in the voters' registration boards, boards of
election inspectors, boards of canvassers, or other similar
bodies. However, they shall be entitled to appoint poll
watchers in accordance with law.
Section 9. Unless otherwise fixed by the Commission in special
cases, the election period shall commence ninety days before
the day of election and shall end thirty days thereafter.
Section 10. Bona fide candidates for any public office shall be
free from any form of harassment and discrimination.
Section 11. Funds certified by the Commission as necessary to
defray the expenses for holding regular and special elections,
plebiscites, initiatives, referenda, and recalls, shall be
provided in the regular or special appropriations and, once

19

approved, shall be released automatically upon certification


by the Chairman of the Commission.

NATURE AND POWERS


THE COMMISSION ON ELECTIONS, ITS
NATURE, POWERS
The Comelec is a constitutional and administrative
body independent of the executive, legislative and judicial
branches of the government charged with safeguarding the
sanctity of the ballots. Its independence is safeguarded by:
1. A fixed term and impeachment as the method of removal
of the chairman and commissioners prohibition against
reappointment (to the same position but it is silent
whether a member who was first appointed as
commissioner during the term of office) and;
2.

Fixed compensation during the term of office and

3.

Freedom from supervision and interference in the exercise


of its function by any governmental or rulings of the
Comelec on petition by certiorari of an aggrieved party
under Rule 65 of the Rules of Court which is confined only
to determining whether there was grave abuse of
discretion amounting to lack or excess of jurisdiction or
patent and substantial denial of due process committed
by it in the exercise of its quasi-judicial powers.

Brillantes v. b 192 SCRA 358, The President cannot


validly designate Yorac as acting chairman on the legal
premise that Art. IX-C Sec. 1(2) prohibits the appointment
of members in a temporary or acting capacity. Art. IX-A
Sec. 1(2) provides for the independence of the
COMELEC and therefore, the choice of a temporary
chairman falls under the discretion and prerogative
of the commission and cannot be exercised for it
by the President.

1997 Bar Question: A month before the forth coming


election, A one of the incumbent Commissioners of the
COMELEC, died while in office and B, another
Commissioner, suffered a sever stroke. In view of the
proximity of the elections and to avoid paralyzation in the
COMELEC, the President, who was not running for any
office, appointed Commissioner C of the COA, who
was not a lawyer but a CPA by profession, ad interim
Commissioner to succeed Commissioner A and
designated, by way of temporary measure, Associate
justice D of the Court of Appeals as Acting Associate
Commissioner during the absence of Commissioner B.
Question: Did the President do the right thing in
extending such ad interim appointment in favor of
Commissioner C and designating Justice D acting
Commissioner of the COMELEC?
Suggested Answer: No. The President was wrong in
extending an ad interim appointment in favor of
Commissioner C. In Summers vs. Ozaeta 81 Phil.
754, it was held that an ad interim appointment is a
permanent appointment. Under Section 15, Article VII
of the Constitution, within two months immediately
before the next presidential elections and up to the end of
his term, the President cannot make permanent
appointments.

MANNER OF
APPOINTMENT/
LIMITATIONS/REMOVAL
The
-

Chairman and the Commissioners shall be


appointed by the President
with the consent of the Commission on Appointments
for a term of seven years without reappointment.
Of those first appointed,
o
3 Members shall hold office for 7 years,
o
2 Members for five years, and
o
the last Members for three years, without
reappointment.
Appointment to any vacancy shall be only for the
unexpired term of the predecessor.
In no case shall any Member be appointed or
designated in a temporary or acting capacity.
The staggering of terms makes the COMELEC a
continuing and self-perpetuating body,
consequently its members would have the
benefit of the experience and expertise of the

Section 1(1) & (2) of Article IX-C

Commissioners are removable by impeachment.2

Can the President appoint or designate a temporary


chairman of the COMELEC?

COMPOSITION AND QUALIFICATIONS OF THE CHAIRMAN


& THE SIX (6) COMMISSIONERS
1) Chairman and six Commissioners who shall be
2) natural-born citizens of the Philippines and,
3) at the time of their appointment, at least thirty-five
years of age,
4) holders of a college degree, and
5) must not have been candidates for any elective
positions in the immediately preceding elections.
6) However, a majority thereof, including the Chairman,
shall be members of the Philippine Bar who
7) have been engaged in the practice of law for at least
ten years. 1

older members in the performance of its


functions.
The COMELEC Commissioners are subject to the
same disabilities imposed on the President and
the V-President including the prohibition against
holding any other office or engaging in any
other profession or business.

The designation of Justice D as acting Associate


Commissioner is also invalid. Section 1(2), Article IX-C of
the Constitution prohibits the designation of any
Commissioner of the COMELEC in a temporary or acting
capacity. Section 12, Article VIII of the Constitution
prohibits the designation of any member of the Judiciary
to any agency performing QJ or administrative functions.

1998 BQ: Suppose a Commissioner of the COMELEC is


charged before the SB for allegedly tolerating violation of
the election laws against proliferation of prohibited
billboards and election propaganda with the end in view
of removing him from office. Will the action prosper?
Suggested Answer: No. Under Section 8, Article XI of the
Constitution, the Commissioners are removable by
impeachment. As held in the case of In re Gonzales, 160
SCRA 771, a public officer who is removable by

2 Section 8, Article XI of the Constitution,


20

impeachment cannot be charged before the SB


with an offense which carries with it the penalty of
removal from office unless he is first impeached.
Otherwise, he will be removed from office by a
method other than impeachment.

NATURE OF THE POWERS OF COMELEC

The powers and functions possessed by the COMELEC


ARE EXECUTIVE/ADMINISTRATIVE which pertains to
the power
to enforce and administer all laws and regulations
relative to the conduct of an election, plebiscite,
initiative, referendum and recall. The power to
enforce and enforce all laws, rules and
regulations governing elections is exclusive
to the COMELEC with the set purpose of insuring
an honest, orderly, peaceful, free and credible
elections.
To promulgate rules and regulations in the
enforcement of laws relative to elections
Fix appropriate periods for accomplishment of preelection acts
Annul/cancellation illegal registry lists of voters and
order the preparation of a new one
Cancel canvass of election returns and annul
proclamation based on incomplete results (Note:
COMELEC does ot have the power to annul an
election which may not have been free, orderly ,
and honest; such power is merely preventive, not
curative)

The RTC cannot assume jurisdiction over a case involving


the enforcement of the election code which pertained to
taking cognizance of a Special Civil Action filed before it
to restrain Mayor from pursuing certain
infrastructure projects during the election period
which was alleged to constitute a violation of Sec.
261 of the OEC. (Zaldivar v. Estenzo 23 SCRA 540;
Gallardo v. Tabamo 32 SCRA 690).

(Zaldivar v. Estenzo 23 SCRA 540; Under the


Constitution, the Commission on Elections has "exclusive
charge of the enforcement and administration of all laws
relative to the conduct of elections and shall exercise all
other functions which may be conferred upon it by law."9
In the implementation of the above constitutional
prerogative, the Commission on Elections is vested under
the Election Code with "direct and immediate
supervision over the provincial, municipal, and city
officials designated by law to perform duties relative to
the conduct of elections." It could even suspend "from the
performance of said duties any of said officials who shall
fail to comply with its instructions, orders, decisions, or
rulings and appoint their temporary substitutes and, upon
recommendation of the Commission, the President of the
Philippines may remove any or all such officials who shall
be found guilty of non-feasance, malfeasance, or
misfeasance in connection with the performance of their
duties relative to the conduct of elections."

MEANING OF THE PRACTICE OF LAW

Cayetano v. Monsod 210 SCRA 210, the Supreme Court


held that engaging in law practice is not only confined to
courtroom practice. It includes any activity, in or out
of court, which requires the application of law,
legal procedure, knowledge, training and
experience. In upholding the confirmation of
Monsod, the SC held that the more than 10 years
of work experience of Monsod as a lawyer
economist and other position requiring application
of his legal knowledge constituted as engaging in
the practice of law as would qualify him with such
work experience to be Chairman of the COMELEC.

In 1991, Christian Monsod was appointed as the Chairman of


the Commission on Elections. His appointment was affirmed
by the Commission on Appointments. Monsods appointment
was opposed by Renato Cayetano on the ground that he does
not qualify for he failed to meet the Constitutional
requirement which provides that the chairman of the
COMELEC should have been engaged in the practice law for at
least ten years.
Monsods track record as a lawyer:
1. Passed the bar in 1960 with a rating of 86.55%.
2. Immediately after passing, worked in his fathers law
firm for one year.
3. Thereafter, until 1970, he went abroad where he had
a degree in economics and held various positions in
various foreign corporations.
4. In 1970, he returned to the Philippines and held
executive jobs for various local corporations until
1986.
5. In 1986, he became a member of the Constitutional
Commission.
ISSUE: Whether or not Monsod qualifies as chairman of the
COMELEC. What constitutes practice of law?
HELD: Yes. Atty. Monsods past work experiences as a lawyereconomist, a lawyer-manager, a lawyer-entrepreneur of
industry, a lawyer-negotiator of contracts, and a lawyerlegislator of both the rich and the poor verily more than
satisfy the constitutional requirement that he has been
engaged in the practice of law for at least ten years.
As noted by various authorities, the practice of law is not
limited to court appearances. The members of the bench and
bar and the informed laymen such as businessmen, know that
in most developed societies today, substantially more legal
work is transacted in law offices than in the courtrooms.
General practitioners of law who do both litigation and nonlitigation work also know that in most cases they find
themselves spending more time doing what is loosely
described as business counseling than in trying cases. In the
course of a working day the average general practitioner wig
engage in a number of legal tasks, each involving different
legal doctrines, legal skills, legal processes, legal institutions,
clients, and other interested parties. Even the increasing
numbers of lawyers in specialized practice wig usually
perform at least some legal services outside their specialty. By
no means will most of this work involve litigation, unless the
lawyer is one of the relatively rare types a litigator who
specializes in this work to the exclusion of much else. Instead,
the work will require the lawyer to have mastered the full
range of traditional lawyer skills of client counseling, advicegiving, document drafting, and negotiation.

In the special civil action for prohibition before


respondent Judge, its essentially political character is
manifest, the main allegation being the alleged utilization
of the power of petitioner Zaldivar, as municipal mayor,
named respondent therein, to avail himself of the
authority of his office to appoint special policemen or
agents to terrorize voters so that they would support the
congressional candidate of his choice. Both under the
Constitution and the Revised Election Code, it is not so
much the power, but the duty of the Commission on
Elections to exercise supervision over municipal officials
precisely to enforce the Election Code. No other agency is
better suited to preclude abuse of authority on the part of
local officials, the sanction being that it could recommend
to the President their removal if found guilty of "nonfeasance, malfeasance or misfeasance in connection with
the performance of their duties relative to the conduct of
elections."

21

A judge who restrained the suspension of the


canvassing of election returns is guilty of
ignorance of the law and is administratively liable
therefore. (Libardo v. Casar 234 SCRA 13).

Information Technology v. COMELEC At its core is the


ability and capacity of the Commission on Elections to
perform properly, legally and prudently its legal mandate
to implement the transition from manual to automated
elections.

power and in the discharge of such function, the


Commission is endowed with ample wherewithal and
considerable latitude in adopting means and methods
that will ensure the accomplishment of the great
objectives for which it was created to promote free,
orderly and honest elections.
These powers include the determination of the conflicting
claims made in SP Case No. 85-021, which are likely to
cause confusion among the electorate if not
resolved. Additionally, the COMELEC is mandated by the
Election Code to inter alia require candidates to specify
their political party affiliation in their certificates of
candidacy, allow political parties to appoint watchers,
limit the expenditures of each political party, determine
whether or not a political party shall retain its registration
on the basis of its showing in the preceding elections,
etc. These matters include the ascertainment of the
identity of the political party and its legitimate
officers responsible for its acts and the resolution
of such controversies as the one now before it
where one party appears to be divided into two
wings under separate leaders each claiming to be
the president of the entire party.

Unfortunately, Comelec has failed to measure up to this


historic task. As stated at the start of this Decision,
Comelec has not merely gravely abused its discretion in
awarding the Contract for the automation of the counting
and canvassing of the ballots. It has also put at grave risk
the holding of credible and peaceful elections by shoddily
accepting electronic hardware and software that
admittedly failed to pass legally mandated technical
requirements. Inadequate as they are, the remedies it
proffers post facto do not cure the grave abuse of
discretion it already committed (1) on April 15, 2003,
when it illegally made the award; and (2) sometime in
May 2003 when it executed the Contract for the purchase
of defective machines and non-existent software from a
non-eligible bidder.

In the exercise of the power to register political parties,


the COMELEC must determine who these officers are.
Consequently, if there is any controversy as to leadership,
the COMELEC may, in a proper case brought before it,
resolve the issue incidental to its power to register
political parties.

For these reasons, the Court finds it totally unacceptable


and unconscionable to place its imprimatur on this void
and illegal transaction that seriously endangers the
breakdown of our electoral system. For this Court to copout and to close its eyes to these illegal transactions,
while convenient, would be to abandon its constitutional
duty of safeguarding public interest.

The only issue in this case, as defined by the COMELEC


itself, is 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. Indeed,
the petitioners Manifestation and Petition before the
COMELEC merely asked the Commission to recognize only
those certificates of candidacy signed by petitioner Sen.
Angara or his authorized representative, and no other.
To resolve this simple issue, the COMELEC need only to
turn to the Party Constitution. It need not go so far as to
resolve the root of the conflict between the party
officials. It need only resolve such questions as may be
necessary in the exercise of its enforcement powers.

As a necessary consequence of such nullity and illegality,


the purchase of the machines and all appurtenances
thereto including the still-to-be-produced (or in Comelecs
words, to be reprogrammed) software, as well as all the
payments made therefor, have no basis whatsoever in
law. The public funds expended pursuant to the void
Resolution and Contract must therefore be recovered
from the payees and/or from the persons who made
possible the illegal disbursements, without prejudice to
possible criminal prosecutions against them.

By according both wings representatives in the election


committees, the COMELEC has eroded the significance of
political parties and effectively divided the opposition.
The COMELEC has lost sight of the unique political
situation of the Philippines where, to paraphrase Justice
Perfectos concurring opinion in Sotto, supra, the
administration party has always been unnecessarily and
dangerously too big and the opposition party too small to
be an effective check on the administration. The purpose
of according dominant status and representation to a
minority party is precisely to serve as an effective check
on the majority. The COMELEC performed a disservice to
the opposition and, ultimately, to the voting public, as its
Resolution facilitated, rather than forestalled, the division
of the minority party.

Furthermore, Comelec and its officials concerned must


bear full responsibility for the failed bidding and award,
and held accountable for the electoral mess wrought by
their grave abuse of discretion in the performance of their
functions. The State, of course, is not bound by the
mistakes and illegalities of its agents and servants.

LDP V. COMELEC/AQUINO
In the case at bar, the Party Chairman, purporting to
represent the LDP, contends that under the Party
Constitution only he or his representative, to the
exclusion of the Secretary General, has the authority to
endorse and sign party nominations. The Secretary
General vigorously disputes this claim and maintains his
own authority. Clearly, the question of party identity or
leadership has to be resolved if the COMELEC is to
ascertain whether the candidates are legitimate party
standard bearers or not.
HELD:
The COMELEC correctly stated 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 no 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 an election.[9] In the exercise of such

SANTOS V. ASSISTIO
The Resolution of the COMELEC First Division has attained
Finality
Had this Court been apprised at the outset of the
pendency of Santos motion for reconsideration before the
COMELEC En Banc, it would have dismissed the petition
outright for premature filing. When the COMELEC En Banc
finally resolved the motion for reconsideration, Santos no
longer elevated the denial of his motion before this Court.
He could no longer do that without exposing his act of
forum shopping. Thus, by Santos inaction, the Order of
the COMELEC En Banc is now final and executory.

22

OTHER EXECUTIVE/ADMINISTRATIVE POWERS


pertains to all questions affecting elections such as:
1)

The determination of the number and location of


polling places.
2) Deputization/appointment of election officials and
inspectors
3) Supervise registration of voters
4) Award of bid contracts
5) Regulate the use of firearms
6) Call special elections
7) Investigation and prosecution of election offenses
8) Declare a postponement, suspension, annulment or
failure of elections
9) Regulate the use of franchise or permits to operate
media of communications and information.
10) Require compliance with the rules for the filing of
certificates of candidacy.
11) Proclamation of winners
12) Registration of Political Parties and Accredit Citizens
Arms
QUASI-LEGISLATIVE POWERS

1)
2)

Pertains to:
Prescribing rules to govern procedure (COMELEC Rules of
Procedure) and
promulgation of rules and regulations relative to the conduct
of elections to insure an honest, orderly, peaceful, free and
credible elections, such as; issuance of rules to supervise and
regulate media and advertisement, rules to implement
prohibition against expenditures or those in excess of the
limits authorized by law.

Brilliantes, Concepcion, Jr., De Venecia, Angara,


Galvez-Lim. Drilon, San Juan, Gonzales, Isleta and
Bernas vs. COMELEC, GR 163193 June 15, 2004
FACTS:
In this case, at issue was an En Banc
Resolution No. 67.12, dated April 28, 2004 of COMELEC
providing en Banc Resolution No. 6712, dated April 28,
2004 of COMELEC to acquire automated counting
machines and other equipment, devices, and materials.
COMELEC issued a resolution providing for the 3 phases
in the implementation:
PHASE I computerized system of registration and voters
validation or the so-called biometrics system of
registration;
PHASE II Computerized voting and counting of
votes;
PHASE III Electronic Transmission of Results
In connection with PHASE II, COMELEC issued
Resolution No. 6074 awarding the AES contract to Mega
Pacific Consortium which was nullified by the SC on
January 13, 2004 (INFOTECH) which also voided the
contract entered with Mega for the purchase of
computerized counting machines for the purpose of
implementing the 2nd phase of the modernization
program. Consequently, COMELEC had to maintain the
old manual voting and counting system for the May 10,
2004 elections.
Similarly, the validation scheme under Phase I
likewise encountered problems and had earlier made
pronouncements that it was reverting to the old listing of
voters. But despite the scrapping of Phase II, COMELEC
ventured to implement Phase III of the AES through an
electronic transmission of advanced unofficial results of
the 2004 elections for national, provincial, and municipal
position also dubbed as an unofficial quick count.
NAMFREL and political parties moved for
reconsideration COMELEC Resolution No. 6712, alleging
that:

It disregards RA 8173, 8436, and 7166 authorizing


only the citizens arm to use an election return for an
unofficial count; other unofficial counts may not be
based on an election return;
The Commissions copy, the 2nd and 3rd copy of the
election returns, as the case may be, has always
been intended to be archived and its integrity
preserved until required by the COMELEC to resolve
election disputes. Only the BEI is authorized to have
been in contact with the return before the
Commission unseals it.
The instruction contained in Resolution No. 6712 to
break the seal of the envelope containing copies 2
and 3 will introduce a break in the chain of custody
prior to its opening by the COMELEC. In the process
of prematurely breaking the seal of the BEI, the
integrity of the Commissions copy is breached
thereby rendering it void of any probative value.
COMELEC asserts that Section 52(i) OEC grants
statutory basis for it to issue and resolution which cover
the use of the latest technological and electronic devices
for unofficial tabulation of votes.
In assailing the validity of the resolution, petitioners
alleged that the Resolution is void:
For preempting the sole and exclusive authority of
Congress under VII, Section 4 to canvass votes for
the election of President and Vice-President;
For disregarding RA 8173, 8436, and 7166 which
authorize only the citizen arm to use an election
return for an unofficial count;
For violation of Section 52(i) of the OEC requiring not
less than 30 day notice of the use of new
technological and electronic devices.
HELD:
1ST ISSUE: That the assailed resolution is void as it
usurps the sole and exclusive authority of Congress to
canvass the votes for the election of President and VicePresident in the guise of an unofficial tabulation of
election results based on a copy of the election returns.
Article VII, Section 4 of the Constitution provides in part
that the returns of every election for President and VicePresident duly certified by the BOC of each province or
city shall be transmitted to the Congress, directed to the
President of the Senate. Upon receipt of the certificate of
canvass, the President of the Senate shall, not later than
30 days after the day of the election, open all the
certificates in the presence of the Senate and the House
of Representative in joint public session, and the
Congress, upon determination of the authenticity and due
execution thereof in the manner provided by law, canvass
the votes.
2nd ISSUE: The resolution disregards existing laws
which authorizes solely the duly accredited citizens arm
to conduct the unofficial counting of votes. Under Section
27 of RA 7166, as amended by RA 8173 and reiterated in
Section 18 of RA 8436, the accredited citizens arm, in this
case, NAMFREL is exclusively authorized to use a copy
of the election returns in the conduct of an unofficial
counting of the votes, whether for the national or the
local elections. No other entity, including COMELEC itself,
is authorized to use a copy of the ER for purposes of
conducting an unofficial count.
3RD ISSUE: Since Resolution No. 6712 was made
effective immediately a day after its issuance on April 28,
2004, the COMELEC could not have possibly complied
with the 30-day notice requirement provided under
Section 52(i) of the OEC. This indubitably violates the
constitutional right to due process of the political parties
and candidates.
The AES provided in RA 8436 constitutes the entire
process of voting, counting of votes and
canvassing/consolidation of results of the national and
local elections corresponding to the Phase 1, 2, and 3 of

23

the AES. The 3 phases cannot be affected independently


of each other. Phase II was a condition sine qua non to the
implementation of Phase 3 and the nullification by the SC
of the contract for Phase II of the system effectively put
on hold at least for the May 10, 2004 elections, the
implementation of Phase 3 of the AES.

The grave abuse of discretion of the COMELEC is


underscored by the fact that the protest that petitioner
Pagdanganan filed on 1 June 2007 overstayed with the
COMELEC until the present election year when the end of
the term of the contested office is at hand and there was
hardly enough time for the re-hearing that was conducted
only on 15 February 2010. As the hearing time at the
division had run out, and the re-hearing time at
the banc was fast running out, the unwanted result came
about: incomplete appreciation of ballots; invalidation of
ballots on general and unspecific grounds; unrebutted
presumption of validity of ballots.

ADJUDICATORY OR QUASI-JUDICIAL POWERS

Exclusive Original jurisdiction over all contests


relating to the election, returns, and qualifications of all
elective regional, provincial, and city officials.

Exclusive Appellate jurisdiction over all contests


involving municipal officials decided by the RTC, or
involving elective barangay officials decided by the MTC.
In these cases, the decisions therein shall be final,
executory, and unappealable.

Embraces the power to resolve controversies that


may arise in the enforcement of election laws and
resolution of cases involving regional, provincial
and city officials or to election disputes in general.

Sec. 3, Article IX-C, that the COMELEC in the


exercise of its QJ functions 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 however
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.

In the exercise of its QJ functions, the COMELEC is


empowered to cite a party for contempt of court
conformably with the rules of court and impose the
appropriate penalties as therein prescribed.

Sec. 2. Period for Filing Motions for


Reconsideration. - A motion to reconsider a decision,
resolution, order, or ruling of a Division shall be filed
within five (5) days from the promulgation 3thereof. Such
motion, if not proforma, suspends the execution or
implementation of the decision, resolution, order or
ruling.

Sec. 4. Effect of Motion for Reconsideration on


Period to Appeal. - A motion to reconsider a decision,
resolution, order or ruling when not pro-forma, suspends
the running of the period to elevate the matter to the
Supreme Court. 5

Mendoza .v COMELEC

Promulgation decision/order/ruling the period shall commence upon promulgation time


where the comelec shall furnish the respective depts. For the transmission of decision.

4 Sec. 2, Rule 19 COMELEC Rules of Procedure

Under Section 3, Article IX-C of the 1987 Constitution, the


COMELEC, sitting en banc, does not have the authority to
decide election cases in the first instance as this authority
belongs to the divisions of the COMELEC Specifically.
Sec.3. The Commission on Elections may sit en banc or in
two divisions, and shall promulgate its rules of procedure
in order to expedite disposition of election cases,
including pre-proclamation controversies. 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.

Coquilla v. COMELEC 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
the 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
petitioners motion for reconsideration for being proforma and conformably with Sec. 4 of Rule 19, 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 there new matters raised that would
sufficiently warrant a reversal of the assailed resolution of
the Second Division. However, the mere reiteration in
a motion for reconsideration of the issued raised
by the parties and passed upon by the court does
not make a motion pro-forma; otherwise, the
movants 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. It 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: (1) it was a
second motion for reconsideration; (2) it did not comply
with the rule that the motion must specify the findings

5 Sec. 4, Supra
24

and conclusions alleged to be contrary to law or not


supported by the evidence; (3) it failed to substantiate
the alleged error; (4) it merely alleged that the decision in
question was contrary to law or (5) the adverse party was
not given due notice thereof.

ARTICLE IX-A, SECTION 7,


1987 PC
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 thirty days from
receipt of a copy thereof.

COMELEC resolution awarding the contract in favor of


Acme was not issued pursuant to its quasi-judicial
functions but merely as an incident of its inherent
administrative functions over the conduct of elections,
and hence, the said resolution may not be deemed
as a "final order" reviewable by certiorari by the
Supreme Court. Being non-judicial in character, no
contempt may be imposed by the COMELEC from
said order, and no direct and exclusive appeal by
certiorari to this Tribunal lie from such order. Any
question arising from said order may be well taken in an
ordinary civil action before the trial courts.

COMELEC RULES OF
PROCEDURE
Rule 13 - Prohibited Pleadings
Section 1. What Pleadings are not Allowed. - The
following pleadings are not allowed:
(a) motion to dismiss;
(b) motion for a bill of particulars;
(c) motion for extension of time to file memorandum or
brief;
(d) motion for reconsideration of an en banc ruling,
resolution, order or decision except in election offense
cases;
(e) motion for re-opening or re-hearing of a case;
(f) reply in special actions and in special cases; and
(g) supplemental pleadings in special actions and in
special cases.chanrobles virtual law librar

Angelia v. COMELEC 332 SCRA 757 - As provided


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).
The proper recourse of a party who is aggrieved by a
Decision of the COMELEC En Banc on a Motion for
Reconsideration of a decision of a division in an ordinary
action (election protest, QW, appeal from decisions of the
court in election protest cases), is to file a petition for
certiorari under Rule 65 of the Rules of Civil
Procedure within 30 days from receipt of the
aggrieved party of the said decision, order or
ruling.

Banaga, Jr. v. COMELEC 336 SCRA 701 - An en banc


decision in a special action (petition to deny due course
or to cancel a certificate of candidacy, proceedings
against a nuisance candidate, disqualification of
candidates and postponement or suspension for
elections, pre-proclamation controversies) becomes final
and executory five (5) days from promulgation.

Reyes v. RTC Mindoro 244 SCRA 41, the SC ruled that


in providing that the decisions, order and ruling of
COMELEC which may be brought to the SC on certiorari
under Art. IX-A#7 refers to the special civil action for
certiorari under Rule 65.

Garces v. Court of Appeals 259 SCRA 99 (1996) and


Filipinas Engineering & Machine Shop v. Ferrer 135
SCRA 25 (1985), the SC interpreted that 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 adjudicatory or QJ powers. The Filipinas case
involves a resolution of the COMELEC awarding a contract
for a supply of voting booths to a private party, as a result
of its choice among various proposals submitted in
response to its invitation to bid, is not reviewable by
certiorari as it is not an order rendered in a legal
controversy before it but merely as an incident of its
inherent administrative functions over the conduct of
elections. Hence, any question arising from said order
may be taken in an ordinary civil action for injunction with
the RTC.

Chavez v. COMELEC, G.R. No. 105323July 3, 1992


The alleged inaction of respondent Comelec in ordering
the deletion of Melchor Chavez's name in the list of
qualified candidates does not call for the exercise of the
Court's function of judicial review. This Court can review
the decisions or orders of the Comelec only in cases of
grave abuse of discretion committed by it in the
discharge of its quasi-judicial powers and not those
arising from the exercise of its administrative functions.
Respondent Commission's alleged failure to implement its
own resolution is undoubtedly administrative in nature,
hence, beyond judicial interference

SAHALI V. COMELEC citing KHO v. COMELEC


it does not appear that the subject controversy is one of
the cases specifically provided under the COMELEC Rules
of Procedure in which the Commission may sit en banc.
Neither is it shown that the present controversy a case
where a division is not authorized to act nor a situation
wherein the members of the First Division unanimously
voted to refer the subject case to the Commission en
banc. Clearly, the Commission en banc, under the
circumstances shown above, cannot be the proper forum
which the matter concerning the assailed interlocutory
orders can be referred to.
In a situation such as this where the Commission in
division committed grave abuse of discretion or acted
without or in excess of jurisdiction in issuing interlocutory
orders relative to an action pending before it and the
controversy did not fall under any of the instances
mentioned in section 2, Rule 3 of the COMELEC Rules of
Procedure, the remedy of the aggrieved party is not to
refer the controversy to the Commission en banc as this
is not permissible under its present rules but to elevate it
to this Court via a petition for certiorari under Rule 65 of
the Rules of Court.26 (Citations omitted and emphasis
ours)

25

Thus, exceptionally, this Court may take cognizance of a


certiorari action directed against an interlocutory order
issued by a Division of the COMELEC when the following
circumstances are present:
(1) first, the order was issued without jurisdiction or
in excess of jurisdiction or with grave abuse of
discretion tantamount to lack or excess of
jurisdiction; and
(2) second, under the COMELEC Rules of Procedure,
the subject of the controversy is a matter which
a. the COMELEC en banc may not sit and
consider or
b. a Division is not authorized to act or
c. the members of the Division
unanimously vote to refer to the
COMELEC en banc.

or memorandum required by the rules of the commission


or by the commission itself. Unless otherwise provided by
this constitution or law, any decision, order or ruling of
each commission may be brought to the SC on certiorari
by the aggrieved party within 30 days from receipt of a
copy thereof.
The SC held that is has interpreted this provision to
mean final orders, rulings and decision of the COMELEC
rendered in the exercise of its adjudicatory or quasijudicial powers and that the said final decision or
resolution must be of the COMELEC en banc, not of a
division and certainty not an interlocutory order of a
division. The SC has no power to review via certiorari, an
interlocutory order or even a final resolution of a Division
of the COMELEC.
The mode by which a decision, order or ruling of the
COMELEC en banc may be elevated to the SC is by way of
a special civil action of certiorari under Rule 65 of the
1964 Revised Rules of court, now expressly provided in
Rule 64 of the Rules of Civil Procedure, as amended. Rule
65, Section 1, 1997 Rules of Civil Procedure, as amended,
on the other hand, requires that there be no appeal or
any plain, speedy and adequate remedy in the ordinary
course of law. A MR is a plain and adequate remedy
provided by law. Failure to abide by this mandatory
procedural requirement constitutes a ground for dismissal
of the petition.
Another issue in this case is that the decision of a
member of a division whose decision has not yet been
promulgated prior to his retirement cannot validly take
part in the resolution or decision much more could be the
ponente of the resolution or decision as a final decision or
resolution becomes binding only after it is promulgated.
The resolution of decision of the Division must be signed
by a majority of its members and duly promulgated.
Otherwise, before that resolution is so signed and
promulgated, there is no valid resolution or decision to
speak of.

The exception in Kho does not apply in the instant case


since the COMELEC First Division is authorized to act on
the ex-parte motion for the technical examination of the
said election paraphernalia. The COMELEC First Division
has already acquired jurisdiction over the election
protests filed by Matba and Usman. Concomitant with
such acquisition of jurisdiction is the authority of the
COMELEC First Division to rule on the issues raised by the
parties and all incidents arising therefrom, including the
authority to act on the ex-parte motion for technical
examination of said election paraphernalia.
In Kho, the COMELEC First Division did not acquire
jurisdiction on the answer with counter-protest since it
was filed beyond the reglementary period and,
consequently, did not have any authority to act on the
issues raised therein and all incidents arising therefrom.

Loong v. COMELEC, 305 SCRA 832 (1999) and


Macabago v. COMELEC, November 18, 2002, the
issue brought before the SC is whether or not a petition
for certiorari and prohibition under Rule 65 of the Rules of
Civil Procedure is a proper remedy to invalidate a
resolution of the COMELEC issued in the exercise of its
administrative powers?
SC held that although as a general rule, an
administrative order of the COMELEC is not a proper
subject of a special civil action for certiorari, but when the
COMELEC however acts capriciously or whimsically, with
grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing such an order, the aggrieved party
may seek redress from the SC via civil action for certiorari
under Rule 65 of the Rules of Civil Procedure.
The main issue in the Loong case is whether the
COMELEC gravely abused its discretion when it ordered a
manual count of the 1998 Sulu local elections. The
resolution of the issue involved an interpretation of RA
8436 on automated election in relation to the broad
power of the COMELEC under Section 2(1) of Article IX-C
(enforcement, etc.). The SC took cognizance as the issue
is not only legal but one of first impression and suffused
with significance to the entire nation. It is adjudicatory of
the right of parties to the position of the Governor of Sulu
which are enough consideration to call for an exercise of
the certiorari jurisdiction of the Court.
Ambil, Jr. v. COMELEC, 344 SCRA 358, the issue
brought before the SC is whether the SC has the power to
review via certiorari an interlocutory order or even a final
resolution of a Division of the COMELEC. Pursuant to
Section 7 of Article XI-A of the Constitution each
commission shall decide by a majority vote of all its
members in cases or matter brought before it within 60
days from the date of its submission for decision or
resolution. A case or matter is deemed submitted for
decision or resolution upon filing of the last pleading, brief

ADMINISTRATIVE FUNCTION

The doctrine of exhaustion of administrative remedies


was likewise discussed by the SC stressing that before a
party is allowed to seek the intervention of the court, it is
a pre-condition that he should have availed of all the
means of administrative processes afforded to him. A MR
then is a pre-requisite to the viability of a special civil
action for certiorari unless the party who avails of the
latter can convincingly show that his case falls under any
of the following exceptions to the rule:

When the question is purely legal;

Where judicial intervention is urgent;

Where the application may cause great and


irreparable damage;

Where the controverted acts violates due


process;

Failure of a high government official from whom


relief is sought to act on the matter;

When the issue for non-exhaustion of


administrative remedies has been rendered
moot.

Sabdullah T. Macabago v. COMELEC/Jamael M.


Salacop, 392 SCRA 178 (2002)
--(Failure if elections, annulment of elections, preproclamation, election protest, distinction between the
remedies under Rule 64 and 65 of the Rules of Court)
FACTS:
Macabago and Salacop were candidates for
Municipal Mayor of Saguiran, Lanao del Sur were
Macabago was proclaimend winner by the MBC.
Salacop filed a petition with the COMELEC against the
Macabago, the proclaimed Vice-Mayor, MC and MBOC to

26

annul the elections and the proclamation of candidates


alleging massive substitution of voters. Rampant and
pervasive irregularities in voting procedures in some
precincts and failure of the BEI to comply with Sections 28
and 29 of the COMELEC Resolution No. 3743 and Section
193 of the OEC, thus rendering the election process in
those precincts a mockery and the proclamation of the
candidates a nullity. The case was docketed as SPC-01234.
In support of his petition, Salacop appended thereto
photocopies of random Voters Registration Record
evidencing the fraud and deceit, as well as affidavits
tending to prove that serious irregularities were
committed in the conduct of the elections in the subject
precinct.
Petitioner denied the truth of the material allegations
in the petition and averred that it raised a PPC and that
the grounds would be proper in an Election Protest. The
COMELEC took cognizance of the petition and on February
11, 2002, issued an Order directing the EO to bring to and
produce before the COMELEC Office in Manila the original
VRRs of the questioned precincts for technical
examination.
In the same Order, the COMELEC declared that
contrary to petitioners claims, the petition did not allege
a PPC, and characterized the petition as one for the
annulment of the election or declaration of failure of
election in the municipality, a special action covered by
Rule 26 of the COMELEC Rules of Procedure. Hence,
COMELEC set aside the docketing of the petition as a
special case (SPC) and ordered the re-docketing thereof
as a special action (SPA).
After the examination of the evidence submitted by
the petitioner, the COMELEC concluded that there were
convincing proof of massive fraud in the conduct of the
elections in the four (4) precincts that necessitated a
technical examination of the original copies of the CRRs
and their comparison with the voters signature and
fingerprints. The COMELEC further noted that since the
lead of Macabago was only 124 votes vis--vis the 474
cotes of the contested precincts, the outcome of the
petition would adversely affect the result of the elections
in the Municipality.
Petitioner filed with the SC the instant special civil
action for certiorari under Rule 65 of the 1997 Rules of
Civil Procedure, as amended, praying for the reversal of
the February 11, 2002 order of the COMELEC En Banc on
the following issues:
ISSUES:
(a) Whether petitioners recourse to this Court under
Rule 65 of the 1997 Rules of Civil Procedure, as amended,
is in order; and
(b) Whether the COMELEC acted without jurisdiction or
committed grave abuse of discretion amounting to excess
or lack of jurisdiction in taking cognizance of the petition
of private respondent and in issuing the assailed Order.
HELD:
FIRST ISSUEPetitioner avers that he was impelled to
file the instant petition without first filing with the
COMELEC a motion for reconsideration of its order
because under the COMELEC Rules of Procedure, a MR of
an interlocutory order of the COMELEC En Banc is a
prohibited pleading and that the COMELEC acted with
grave abuse of discretion amounting to excess or lack of
jurisdiction in issuing the assailed order. Salacop on the
other hand, insists that under Rule 64 of the 1997 Rules
of Civil Procedure, a special civil action for certiorari filed
with this Court is proper only for the nullification of a final
order or resolution of the COMELEC and not of its
interlocutory order or resolution such as the assailed
order in this case.

The assailed order of the COMELEC declaring


Salacops petition to one for annulment of the elections or
for a declaration of a failure of elections in the
municipality and ordering the production of the original
copies of the VRRs for the technical examination is
administrative in nature (Canicosa v. COMELEC, 282 SCRA
512 (1997)). Rule 64, which is a procedural device for the
review of final orders, resolutions, or decision of the
COMELEC, does not foreclose recourse to the SC under
Rule 65 from administrative orders of said Commission
issued in the exercise of its administrative function
(Cabagnot v. COMELEC, 260 SCRA 503 (1996).

As a general rule, an administrative order of the


COMELEC is not a proper subject of a special civil action
for certiorari (Tupay Loong v, COMELEC, 305 SCRA
832 (1999)). But when the COMELEC acts capriciously or
whimsically with grave abuse of discretion amounting to
lack or excess of jurisdiction in issuing such an order, the
aggrieved party may seek redress from the SC via a
special civil action for certiorari under Rule 65 of the
Rules.

Chavez v. Commission in Elections 211 SCRA 315


(1992), the SC held that the resolution of the COMELEC in
deleting the name of a candidate in the list of qualified
candidates does not call for the exercise of the SCs
function of judicial review as the said action is
undoubtedly administrative in nature.

Salva v. Macalintal 340 SCRA 506 (2000), the SC held


that the issuance of the COMELEC of Resolution No. 2987
calling for a plebiscite held in the affected barangays,
pursuant to the provisions of Section 10 of RA 7160 is a
ministerial duty of the COMELEC and is part and parcel of
its administrative functions. It does not involve the
exercise of discretionary authority as well as an exercise
of its adjudicatory functions. Any question pertaining to
the validity of said resolution may well be taken in an
ordinary civil action before the trial courts.

Ma. Salvacion Buac, et. al., vs. COMELEC/Cayetano,


et. al. G.R. No. 155855, January 26, 2004. In thIS
companion case relative to the Taguig Plebiscite, it may
be recalled that the SC ruled that COMELEC has
jurisdiction over plebiscite results as part of its
administrative functions to enforce and implement all law
relative to elections, initiative, referendum, plebiscite and
recall, the SC in ruling therein directed the COMELEC to
reinstate the petition to annul the results of the Taguig
Plebiscite and to decided it without delay.
The result of the revision committee was submitted
to the 2nd division for hearing but failed to render a
decision as the required number of votes among its
members could not be obtained. Consequently, pursuant
to Section 5(b) of Rule 3 of the COMELEC Rules of
Procedure, the case was elevated to the COMELEC en
banc for resolution.
Section 5. Quorum; Votes required. (b) When
sitting in divisions, two (2) members of a Division
shall constitute a quorum to transact business. The
concurrence of at leat two (2) members of a Division
shall be necessary to reach a decision, resolution,
order or ruling. If this required number is not
obtained, the case shall be automatically elevated to
the Commission en banc for decision.
COMELEC en banc issued the assailed Resolution
declaring and confirming the ratification and approval of
the conversion of the Municipality of Taguig into a highly
urbanized city. Cayetano filed the instant petition
contending that the revision of the P ballots cannot be
relied upon for the determination of the will of the
electorate and that many irregularities, fraud, and
anomalies attended the revision proceedings. It was held

27

that allegations of Cayetano are factual in nature which


would involve admissibility and sufficiency of evidence
presented during the revision proceedings before the
COMELEC. This cannot be done in the present special civil
action for certiorari under Rule 65 of the 1997 Rule of
Civil Procedure, as amended. Section 1 of the same rule
confines the power of the SC to resolve issues mainly
involving jurisdiction, including grave abuse of discretion
amounting to lack or excess of jurisdiction attributed to
the public respondent.
Nevertheless, the SC, in the interest of the residents
and voters of the City of Taguig still reviewed the
evidence and found that the basis of Cayetano was
erroneous. The factual findings of COMELEC supported by
evidence, are accorded, not only respect, but finality.

Bulaong v. COMELEC First Division, 220 SCRA 745 and


Soller v. Commission on Elections 339 SCRA 685
(2000), the SC ruled that the COMELEC, sitting en banc,
does not have the requisite authority to hear and decide
election cases including pre-proclamation controversies in
the first instance. This power pertains to the divisions of
the Commission. A decision of the COMELEC is void,
where the controversy is not first resolved by a division.

Garvida v. Sales 271 SCRA 767, under the COMELEC


Rules of Procedure, the jurisdiction over a petition to
cancel a certificate of candidacy on the ground that the
candidate had made false material representation in his
certificate lies with the COMELEC sitting in a division, not
en banc. Cases before a division may only be entertained
by the COMELEC en banc when the required number of
votes to reach a decision, resolution, order or ruling is not
obtained in the Division.

Aruelo Jr. v. CA, October 20, 1993, the Court held that
should there be a conflict between a rule of procedure
promulgated by the COMELEC and a Rule of Court, the
COMELEC Rule of Procedure will prevail I f the case is
brought before the COMELEC and the Rules of Court if the
election case is filed with the Court.

Jamil vs. COMELEC 283 SCRA 349 (1997), When the


Commission en banc is equally divided in opinion, or the
necessary majority cannot be had, the case shall be
reheard, and if rehearing no decision is reached, the
action or proceeding shall be dismissed if originally
commenced in the Commission; in appealed cases, the
judgment or order appealed from shall stand affirmed;
and in all incidental matters, the petition or motion shall
be denied. (Section 6, COMELEC Rules of Procedure).

Based on the proceedings of the Soller case, the petition


with the COMELEC assailed the trial courts order denying
the motion to dismiss of Saulong election protest which
was however not referred to a division but was instead,
directly submitted to the COMELEC en banc.
The SC held that the order denying a motion to dismiss is
but an incident of the election protest filed with the RTC
which is interlocutory as the denial does not end the
trials courts task of adjudicating the parties contentions
and determining their rights and liabilities as regards
each other. The authority to resolve a petition for
certiorari involving incidental issues of election
protest falls within the division of the COMELEC
and not on the COMELEC en banc. It further stressed,
that if the principal case, once decided on the merits is
cognizable on appeal by a division of the COMELEC, then,
there is no reason why petitions for certiorari relating to
incidents of elections protest cases should not be first
referred to a division for resolution.

Canicosa vs. COMELEC 282 SCRA 512. Canicosa and


Lajara were candidates for Mayor in Calamba, Laguna
were Lajera was proclaimed winner. Canicosa filed with
the COMELEC a Petition to Declare Failure of Elections and
to Declare Null and Void the Canvass and Proclamation.
(names of RV did not appear on the list, padlocks were
not self locking etc) 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 it was 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 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.
Sec. 2 of Rule 3 of the COMELEC Rules of Procedure
however provide for exceptions when the COMELEC en
banc may take cognizance of cases at the first instance;

all other cases where the division is not


authorized to act;

declaring a postponement, failure or suspension


of elections;

where upon a unanimous votes of all the


members of a division, an interlocutory matter or
issue relative to an action or proceeding before it
is decided to be referred to the Commission en
banc.

SEC.

2, RULE 3 COMELEC RULES OF PROCEDURE

Sec. 2. The Commission En Banc. - The Commission shall sit


en banc in cases
1. hereinafter specifically provided, or
2. in pre-proclamation cases upon a vote of a majority
of the members of the Commission, or
3. in all other cases where a division is not authorized to
act, or
4. where, upon a unanimous vote of all the Members of
a Division, an interlocutory matter or issue relative to
an action or proceeding before it is decided to be
referred to the Commission en banc.
JUDICIAL POWERS OF THE COMELEC

By way of exception, Sec. 2(2) of Art. IX-C of the


Constitution grants to the COMELEC:

1.

EXCLUSIVE ORIGINAL 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
elective municipal officials decided by trail courts of
general jurisdiction, or involving elective barangay
officials decided by trial courts of limited jurisdiction. As
anchored on this constitutional provision and Sec. 9 RA
6679, a petition for review involving elections contests
among municipal or barangay elective officials should be
filed with the COMELEC and not with the Court of Appeals,
which has no jurisdiction to entertain it.

2.

Guieb vs. Fontanilla 247 SCRA 348 (1995) and Calucag


v. COMELEC 274 SCRA 405 the SC ruled that Section 9
of RA 6679 which vests upon the RTC appellate
jurisdiction over election cases decided by municipal or
metropolitan trial courts is unconstitutional, and decisions
of the latter which are appealed to the RTC, which have

28

no appellate jurisdiction, are erroneously appealed and


thus become final.

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)

POWER TO ISSUE WRITS OF CERTIORARI, PROHIBITION


AND MANDAMUS

Relampagos v. Cumba 243 SCRA 690 (1995), it was


held that the 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 697 and Article 2(1) of the Constitution.
Carlos v. Angeles Supra, the SC 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

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.

Garcia v. De Jesus

Navarro v. COMELEC

29