XIII.

ELECTION CONTESTS

A. Jurisdiction

Supreme Court Regional Trial Court

(Presidential Electoral Municipal officials (Sec. 2(2), Art. IX-C, PC; Sec. 251, BP
Tribunal) 881; Papandayan vs. COMELEC, 230 SCRA 469)
President
Under SC AO 54-2007, the Supreme Court designated 111
Vice-President
regional trial courts to serve as special courts to handle
(Sec. 4, Art. VII, Phil.
election contests involving municipal officials. All single sala
Constitution)
courts are considered special courts. In multiple sala areas
where no special courts had been designated, the election
cases would be raffled to the regular courts.
Senate Electoral Metropolitan Trial Court, Municipal Circuit Trial Court,
Tribunal and Municipal Trial Court
Senators (Sec. 17. Art VI, PC) Barangay officials [Sec. 2(2), Art. IX-C, PC; Sec. 252 BP
881;Regatcho vs. Cleto, 126 SCRA 342)

House of Representatives Metropolitan Trial Court, Municipal Circuit Trial Court,

Electoral Tribunal Municipal Trial Court
Congressmen (Sec. 17, Art. VI, Sangguniang Kabataan (Sec. 1, RA 7166)
PC; Sampayan vs. Daza, 213
SCRA 807)
Commission on Elections
Regional officials
Provincial officials
City officials (Sec. 2(2), Art.
IX-C, PC; Sec. 249 BP 881)

B. Action which may be filed

1. Election Protest
Requisites:
i. Must be filed by any candidate who has filed a certificate of candidacy and has been voted
upon for the same office.
ii. On grounds of fraud, terrorism, irregularities or illegal acts committed before, during or after
the casting and counting of votes.
iii. Except for President, Vice President and Senators, within 10 days from the proclamation of the
results of the election.
2. Quo Warranto
Requisites:
i. Filed by any registered voter in the constituency.
ii. On grounds of ineligibility or disloyalty to the Republic of the Philippines.
iii. Within 10 days from the proclamation of the results of the election.
3. Procedure

1. Period of filing contest

1. President and Vice President

Protest 30 days (Rule 14, Rules of Presidential Electoral Tribunal)
Quo Warranto 10 days (Rule 15, Rules of Presidential Electoral Tribunal)
2. Senators
Protest 15 days (Rule 14, Revised Rules of Senate Electoral Tribunal)
Quo Warranto 10 days (Rule 15, Revised Rules of Senate Electoral Tribunal)
3. Congressman 10 days (Rule 16 and 17, 1998 Rules of House of Represntatives
Electoral Tribunal)
4. Regional, provincial and city officials 10 days (Secs. 250 and 253, BB 881; Republic vs.
Dela Rosa, 232 SCRA 78)
5. Municipal officials 10 days (Secs. 251 and 253, BP 881)
6. Barangay officials 10 days (Secs. 252 and 253, BP 881)
7. Sangguniang Kabataan 10 days (Sec. 1 RA 7808)

Exceptions
1. The period to file an election protest or quo warranto case is suspended from the filing
of a pre-proclamation case until receipt of the order dismissing the case. (Sec. 248, BP
881; Gatchalian vs. CA, 245 SCRA 208)
2. If the dismissal was elevated to the Supreme Court, the period does not run until receipt
of the dismissal by the Supreme Court, because review by the Supreme Court is part of the
proceeding. (Gallardo vs. Rimando, 187 SCRA 463)
3. The running of the reglementary period to file an election protest is tolled by a partys
elevation to the Supreme Court of a COMELEC decision or resolution of a pre-proclamation
case. (Roquero vs. COMELEC, 289 SCRA 150)
4. The period to file an election protest is suspended by the filing of a petition to annul the
proclamation of the winner. (Manahan vs. Bernardo, 283 SCRA 505)
5. Since the filing of a pre-proclamation case merely suspends the running of the period to
file an election protest, only the balance of the period is left in case of dismissal. (Roquero vs.
COMELEC, 289 SCRA 150)
6. Where the evidence of lack of Filipino citizenship of a provincial official was discovered
only 8 months after his proclamation, the quo warranto case should be allowed even if it was
filed more than 10 days after his proclamation. (Frivaldo vs. COMELEC, 174 SCRA 245)
7. The filing of a motion for reconsideration, which is a prohibited pleading, does not toll
the running of the period to file an appeal. (Villamor vs. COMELEC, 496 SCRA 334)

Protestant or Petitioner
1. President and Vice President
Protest Candidate with second or third highest number of votes (Rule 14, Rules of
Presidential Electoral Tribunal and Poe vs. Macapagal-Arroyo, 454 SCRA 142)
Quo Warranto any voter (Rule 15, Rules of Presidential Electoral Tribunal)
2. Senator
Protest any candidate (Rule 14, Revised Rules of Senate Electoral Tribunal)
Quo Warranto any voter (Rule 15, 1998 Rules of Senate Electoral Tribunal)
3. Congressman
Protest Any candidate (Rule 16, 1998 Rules of House of Representatives Electoral Tribunal)
Quo Warranto Any voter (Rule 17, 1998 Rules of House of Representatives Electoral Tribunal)
4. Regional, Provincial, City officials
Protest any candidate (Sec. 250, BP 881)
Quo Warranto any voter (Sec. 253, BP 881)
5. Municipal officials
Protest any candidate for the same office with the second or third highest number of votes
For multi-slot positions, only four candidates following the last-ranked winner. (New SC Rules of
Procedure for Election Contest Involving Municipal Officials)
Quo Warranto any voter (Sec. 253, BP 881)
6. Barangay officials
Protest any candidate (Sec. 252, BP 881)
Quo Warranto- any voter (Sec. 253, BP 881)

Allegations in Protest
1. An election protest should contain the following jurisdictional allegations:
The protestant is a candidate who duly filed a certificate of candidacy and was voted for
in the election.
The protestee has been proclaimed elected.
The date of proclamation. (Miro vs. COMELEC, 121 SCRA 466) and
The precincts where the alleged fraud or irregularity took place.
2. Substantial compliance is sufficient. Thus the following allegations sufficiently comply
with the first requirement.
The protestant received a certain number of votes. (Anis. Vs. Contreras, 55 Phil. 929)
The protestant finished second in the election. (Ali vs. CFI Of Lanao, 80 Phil 506)

3. The protestant was a candidate voted for in the election with a valid certificate of
candidacy for mayor. (Pamania vs Pilapil, 81 Phil 212
iv. The protestant was one of the registered candidates voted for and he received a certain
number of votes. (Jalandoni vs. Sarcon, 94 Phil 266)
v. The protestant was the official candidate of a particular political party and received a certain
number of votes. (Maquinay vs. Bleza, 100 SCRA 702)
vi. The protestant was a candidate for governor and was voted for. (Macias vs. COMELEC, 182
SCRA 137)

c. Even if the protest did not allege the date of the proclamation, it can be determined from
the records of the case that it was filed on time, as when the protest was filed on the tenth
 from the date the casting of votes was held, the protest should not be dismissed. (Miro vs.
COMELEC, 121 SCRA 466)

Form and Substance

An election protest which does not specify the precinct where the alleged irregularities
occurred is fatally defective. 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 the HRET, insufficiency in form
and substance of the petition constitutes a ground for the immediate dismissal of the
petition. (Pena vs. HRET, 270 SCRA 340)

Verification
In the verification, private respondent (protestant) merely stated that he caused the
preparation of his petition and he has read and understood all the allegations therein. But
when he failed to state in his verification that the contents of the election protest are true and
correct of his own personal knowledge, said petition lacks proper verification and should be
treated as an unsigned pleading and must be dismissed.(Soller vs. COMELEC, 339 SCRA
685) But in Baddiri vs. COMELEC, 459 SCRA 808, it was held the COMELEC has discretion to
liberally construe its rules. Thus, it may suspend its Rules or any portion thereof in the interest
of justice.

Certificate of Absence of Forum Shopping

a. Forum shopping exists when the petitioner files multiple petitions or complaints involving
the same issues in two or more tribunal or agencies.(Domingo vs. COMELEC, 313 SCRA 311)
b. The requirement that every initial pleading should contain a certification of absence of
forum shopping applies to election cases for Circular No. 04-94 does not distinguish. (Loyola
vs. CA, 245 SCRA 477; Tomarong vs. Lubguban, 269 SCRA 624)

1. SC Adm. Circular No. 04-94 requiring a certification of non- forum shopping is applicable
to election cases as it is mandatory. It is, however, not jurisdictional. The filing of a certification
of absence of forum shopping after the filing of the protest but within the period for filing a
protest is substantial compliance. (Loyola, supra) The filing of the certification after the period
for filing a protest is not a substantial compliance. (Tumarong, supra)
2. But in Jaramilla vs. COMELEC, 414SCRA337, it was held that the COMELEC has the
authority suspend the reglementary period provided by the rules, or the requirement of
certification on non-forum shopping in the interest of justice and speedy resolution of cases
before it.
3. The strict application of the non-forum shopping rule in election contest would not work
to the best interest of the parties and the electorate. An election contest, unlike an ordinary
civil action, is clothed with a public interest it involves not only the adjudication of private
and pecuniary interests of rival candidates but paramount to their claims is the deep public
concern involved and the need of dispelling the uncertainty over the real choice of the
electorate. (Barroso vs. Ampig Jr., 328 SCRA 530)
4. The requirement under Administrative Circular No. 04-94 for a certificate of non-forum
shopping is mandatory. The subsequent compliance with said requirement does not excuse a
partys failure to comply therewith in the first instance. In those cases where the Supreme
Court excused the non-compliance with the requirement of the non-submission of a certificate
of non-forum shopping, it found special circumstances or compelling reasons which made the
strict application of said Circular clearly unjustified or inequitable. In this case however, the
petitioner offered no valid justification for her failure to comply with the Circular. Hence, the
submission by the petitioner of the requisite certificate after the ten-day period for the filing of
election protest did not operate as a substantial compliance with the Circular. (Batoy vs. RTC
Branch 50, Laoay, Bohol, 397 SCRA 506)

Payment of Docket Fee

A court acquires jurisdiction over any case only upon the payment of the prescribed docket
fee. (Soller vs. COMELEC, 339 SCRA 685) Failure to pay filing fees will warrant outright
dismissal of the action and the election tribunal has no jurisdiction over the case. (Banaga vs.
COMELEC, 336 SCRA 701) But in Jaramilla vs. COMELEC, 414 SCRA 337, it was held that the
COMELEC is not constrained to dismiss a case before it by reason of non-payment of filing
fees. The COMELEC has the discretion whether to entertain the petition or not in case of non-
payment of legal fees. And even if it were not afforded such discretion, it is authorized to
suspend its rules or any portion thereof in the interest of justice.

The date of the payment of the filing fee is deemed the actual date of the filing of the lection
protest and must be viewed vis--vis Section 3, Rule 25 of the COMELEC Rules of Procedure
which provides that the petition shall be filed within ten (10) days following the date of the
proclamation of the results of the election. Hence, the subsequent payment of the filing fee on
June 6, 1997, did not cure the jurisdictional defect because the said date which is deemed the
 actual date of filing the election protest is twenty five (25) days after the proclamation of the
results of the lection on May 12, 1997 and way beyond the ten-day reglementary period to file the
same. (Melendres vs. COMELEC, 319 SCRA 262)

The rule prescribing the ten-day period is mandatory and jurisdictional and the filing of an
election protest beyond the period deprives the court of jurisdiction over the protest. Violation
of this rule should not be taken lightly nor should it be brushed aside as a mere procedural
lapse that can be overlooked. The rule is not a mere technicality but an essential requirement,
the non-compliance of which would oust the court jurisdiction over the case.
Relatedly, if the docket fees are not paid on time, even if the election protest is timely filed,
the court is deprived of jurisdiction over the case.(Id.)

The Supreme Courts decision in Pahilan and Gatchalian bar any claim of good faith, excusable
negligence or mistake in any failure to pay the full amount of filing fees in election cases.
Clearly then, the Court would no longer tolerate any mistake in the payment of the full amount
of filing fees for election cases and any error in the payment of filing fees in election cases is
no longer excusable.

Where the protestant included a claim for attorneys fees in his protest and paid the docket fee
for his claim for attorneys fees but did not pay the basic docket fee for the election protest,
the election protest should be dismissed. (Gatchalian vs. CA 245 SCRA 208)

Cash Deposit
A protestee who filed a counterclaim for attorneys fees cannot be required to file a cash
deposit, since a cash deposit is required only for a counter-protest. (Roa vs. Inting, 231 SCRA
57)

Abandonment A defeated candidate for president who filed an election protest and ran for
senator should be deemed to have abandoned the protest. The protest is rendered moot and
academic by its abandonment by the protestant as a consequence of her election and
assumption of office as senator and her discharge of duties and functions thereof. (Santiago
vs. Ramos, 253 SCRA559)

Expiration of Term
Expiration of the term of office contested in the election protest has the effect of rendering the
same moot and academic and is, therefore, dismissible on that ground unless the rendering of
the decision on the merits would be of practical value. (Malaluan vs. COMELEC, 254 SCRA 397)

NOTE:
*Instances when jurisdiction of the Court is not acquired
1. When election protest is filed beyond the ten-day period from proclamation; and
2. When filing fee is not paid, or paid insufficiently, or paid in full but beyond the
ten-day period to file the protest.

*Other instances when election protest is dismissible

(1) Defective verification
(2) Failure of protestant to comply with Adm. Cir. No. 04-94
3. Failure of protestant to deposit revisors fee within three (3) days after being
required by the Court.
4. When election protest is insufficient in form and substance
5. When protestant abandons/withdraws the protest
6. When the election protest has been deemed moot and academic by the
expiration of the term of office contested in the protest unless the rendering of decision on the
merits would be of practical value.

Substantial Amendments/Change of Theory

Substantial amendments to the protest may be allowed only within the ten-day period after
proclamation for filing protest. (Pena vs. HRET, 270 SCRA 340)

A protestants radical shift in his cause of action from the original and traditional ballot revision
process to precinct-level document based anomalies which broadens the scope of the
electoral protest or introduce additional cause of action constitutes substantial amendment. As
such it should be subjected to the rule that substantial amendments may be allowed only
within the ten (10) day prescriptible period from proclamation. (Arroyo vs. HRET, 224 SCRA
384)

Joinder of election protest and quo warranto case

1. An election protest and a quo warranto case cannot be filed jointly in the same
proceeding. However, they can be filed separately. (Luisaon vs. Garcia, GR No. L-10916, May
20, 1957)
2. If they were joined in an action, they should be ordered separated. (Pacal vs. Ramos, 81
Phil 30)

Preliminary Motions
A motion to dismiss and a motion for a bill of particulars may be filed in an election protest
pending before the regular courts, since the COMELEC Rules of Procedure are not applicable to
the regular courts because of the exclusive rule-making power of the Supreme Court.(Aruelo
vs. CA, 227 SCRA 311)
Section 1, Rule 13 of the COMELEC Rules of Procedure which provides that a motion to dismiss
is a prohibited pleading refers only to proceedings filed before the COMELEC. No where in the
COMELEC Rules of Procedure is it provided that motions to dismiss and bill of particulars are
not allowed in the election protest or quo warranto cases pending before regular courts.
Constitutionally speaking, the COMELEC cannot adopt a rule prohibiting the filing of a certain
pleading in the regular courts. The power to promulgate rules concerning pleadings, practice
and procedure in all courts is vested in the Supreme Court. (Maruhom vs. COMELEC, 331 SCRA
473)

Deferment of counter-protest
Where protestee refuses to allow his counter-protested precincts to be revised except after a
showing that the protestant leads by a margin of at least one (1) vote after revision of the
protestants protested precinct, such refusal is deemed an abandonment or withdrawal of the
counter-protest. Protestee cannot insist later that the counter-protested precincts be
revised. (Abeja vs. Tanada, 236 SCRA 60)

Facsimile Transmission of Pleadings

Filing a pleading by facsimile transmission is not sanctioned by the COMELEC Rules of
Procedure, much less by the Rules of Court. A facsimile is not a genuine and authentic
pleading It is, at best, an exact copy preserving all the marks of an original. Without the
original, there is no way of determining on its face whether the facsimile pleading is genuine
and authentic and was originally signed by the party and his counsel. It may, be a sham
pleading. The uncertainty of the authenticity of a facsimile pleading should have restrained the
COMELEC from acting on the petition and issuing the questioned order. The COMELEC should
have waited until it received the petition by registered mail. (Garvida vs. Sales, 271 SCRA 767)

Opening of Ballot Boxes

When an election protest is filed, the ballot boxes should be opened without requiring proof of
irregularities, and misappreciation of ballots. (Crispino vs. Panganiban, 219 SCRA 621;
Manahan vs. Bernardo, 283 SCRA 505)
Where there is an allegation in an election protest that would require the perusal, examination
or counting of ballots as evidence, it is the ministerial duty of the trial court to order the
opening of the ballots and the examination and counting of ballots deposited therein. (Arao vs.
COMELEC, 210 SCRA 290 and Miguel vs. COMELEC, 335 SCRA 172)
The opening of ballot boxes and examination of ballots is the simplest and most expeditious
means to determine falsity/truth of allegations. To require parol or other evidence on alleged
irregularities before opening the ballot box would have given the protestee ample opportunity
to delay the proceedings. Hence, there is grave abuse of discretion when a court, instead of
ordering the opening of ballot boxes to revise the ballots, orders the conduct of preliminary
hearing on election fraud, anomalies and irregularities recited in the protestants pleading,
requiring protestant to adduce documentary, competent and definite evidence that would
traverse the Narrative Report of the Election Officer that the election was clean, honest and
peaceful. (Miguel vs. COMELEC, supra)
The revision of the ballots in an election protest filed with the COMELEC should be held in
Manila. (Cabagnot vs. COMELEC, 260 SCRA 503)

Appreciation/Authentication of Ballots
Evidence aliunde is not necessary to enable the court to determine authenticity of ballots and
genuineness of the handwriting on the ballot. A thorough examination of the ballots by the
Court is already sufficient. (Bacobo vs. COMELEC, 191 SCRA 576) Handwriting expert is not
necessary to examine and compare handwriting on ballots. (Punzalan vs. COMELEC, 289 SCRA
702, citing Section 22, Rule 132 of the Revised Rules of Evidence)
There shall be a liberal construction in appreciation of ballots to the end that the will of the
electorate in the choice of public official may not be defeated by technical
infirmities. (Punzalan vs. COMELEC, 289 SCRA 702 and Bince vs. COMELEC, 242 SCRA 273)
 Failure to authenticate the ballot with signature of Chairman of the BEI as required by RA 7166
and by COMELEC resolution is not a ground to invalidate ballot. A ballot without BEI
Chairmans signature at the back is valid, genuine and not spurious, provided that it bears any
one of these other authenticating marks, to wit (a) the COMELEC watermark, or (b) the
signature
or initials, or thumbprint of the Chairman of the BEI, and (c) in those cases where the
COMELEC watermarks are blurred or not readily apparent to the naked eye, the presence of
red and blue fibers in the ballots. (Libanan vs. HRET, 283 SCRA 520 and Malabaguio vs.
COMELEC, 346 SCRA 699)

Motion to Photocopy Ballots

Just as the court may allow, for good cause shown, the reproduction of relevant evidence in
the custody of any party, so it may allow the same with respect to evidence in its custody.
Although the grant of such motion is admittedly discretionary on the part of the trial court
judge, nevertheless, it cannot be arbitrarily or unreasonably denied because to do so would
bar access to relevant evidence that may be used by a party-litigant and hence, impair his
fundamental right to due process. In this case, photocopying the ballots is the only way by
which the petitioner can secure the evidence needed to support his claim that certain
irregularities in the voting took place. Since after the revision and recount, the ballots are
required to be returned to their respective ballot boxes, the photocopies will serve as
admissible secondary evidence which may be used for future reference by the party-litigants,
as well as the court itself, in the appreciation of the ballots cast. Equally important is the fact
that by securing a certified true copy of the ballots subject of the controversy, all parties
concerned will be assured that, in case of loss or destruction of the ballots reliable copies
would still be available. (Alberto vs. COMELEC, 311 SCRA 215)

Composition of Board of Canvassers

The illegality of the composition of the board of canvassers cannot be raised in a quo warranto
case, as only the ineligibility or disloyalty of the winner can be raised in such case. (Samad vs.
COMELEC, 224 SCRA 631)

Answer/Counter Protest
An answer filed out of time cannot be admitted. (Kho vs. COMELEC, 279 SCRA 463)
Where the answer of the protestee was filed out of time and a general denial was entered in
favor of the protestee, the rule in civil cases that a general denial operates as an admission is
not applicable. (Loyola vs. HRET, 229 SCRA 90)
A counter protest cannot be allowed if the answer was filed out of time. (Lim vs. COMELEC,
282 SCRA 53)

Substitution
1. Even if the protestee has resigned, the protest should continue, as a favorable judgment
will entitle the protestant to assume the office. (Delos Angeles vs. Rodriguez, 46 Phil 599) The
same holds true if the protestee accepted another position. (Calvo vs. Maramba, GR No.
13206, January 7, 1918)
3. If the protestee died, he should be substituted by his successor, such as the vice
mayor. (Dela Victoria vs. COMELEC, 199 SCRA 561) He
cannot be substituted by his heirs, since public office cannot be inherited. Hence, the widow
may no longer prosecute the deceased protestees counterclaim for damages against
protestant for that was extinguished when death terminated his right to occupy the contested
office. (Abeja vs. Tanada, 236 SCRA 60)
4. The death of the protestant is not a ground to dismiss the election protest nor oust the
court of its jurisdiction to decide the election contest. The Vice-Mayor elect has the status of a
real party-in-interest in the continuation of the proceeding and is entitled to intervene therein.
For if the protest succeeds and the protestee is unseated, the Vice-Mayor succeeds to the
office of the Mayor that becomes vacant if the duly elected one cannot assume the post.
Section 17 of Rule 3 of the Revised Rules of Court which requires a 30-day period for
substitution of parties by reason of death may be applied by analogy or in suppletory
character in this case. (De Castro vs. COMELEC, 267 SCRA 806)
5. But in Poe vs. GMA, 454 SCRA 142, the Supreme Court held that, pursuant to Rule 14 of
the Presidential Electoral Tribunal, only the registered candidate for President and Vice
President of the Philippines who received the second or third highest number of votes may
contest the election of the President or Vice President, as the case may be, by filing a verified
petition with the Clerk of the PET within 30 days after the proclamation of the winner. Pursuant
to this rule, only two persons, the 2nd and 3rd placers, may contest the election. By this
express enumeration, the rule makers, have in effect determined the real parties in interest
concerning the on-going election contest. It envisions a scenario where, if the declared winner
had not been truly voted upon y the electorate, the candidate who received that 2nd or
3rd highest number of votes would be the legitimate beneficiary in a successful election
contest.
While the right to a public office is personal and exclusive to the public officer, an election
protest is not purely personal and exclusive to the protestant or to the protestee such that the
death of either would oust the court of all authority to continue the protest proceedings. The
Court has allowed substitution and intervention but only by the real party in interest. Where the
widow is not a real party in interest, Court has denied substitution by the wife or heirs. (Ibid.)

Summary Judgment
The rules on summary judgment have no application to election protests for beyond the
narrow personal stakes of the opposing candidates, the rights of the electorate, or the people,
are involved. Expediency is not an excuse for not pursuing to the maximum efforts necessary
in the ascertainment of the real and actual winner in the election, by examining the best
evidence available- the ballots. By rendering a summary judgment, the trial court denied itself
the chance to directly scrutinize and appreciate the primary evidence of the true will of the
voters the ballots. Hence, in an election protest, the trial court may not make a finding that
there is no genuine issue to be resolved until and unless it shall have given the protestant a
chance to substantiate his protest. The trial court committed grave abuse of discretion when it
summarily dismissed the election protest based merely on interrogatories where both of them
had no participation. There is no showing in the records that private respondent either agreed
to the adoption of, or was given opportunity to answer the interrogatories which clearly
constitutes a violation of due process. Likewise, an election protest cannot be decided by
summary judgment, as summary judgment may be used only as between parties to a
case. (Dayo vs. COMELEC, 199 SCRA 449)

Injunction
A protestee cannot be enjoined from assuming office because of the pendency of an election
protest. Until the case is decided against him, he has the right to assume office. (Cereno vs.
Dictado, 160 SCRA 759)

Certiorari
Under Sec. 50 of BP 697, the COMELEC has jurisdiction over petitions for certiorari, prohibition
and mandamus involving election cases pending before courts whose decision are appealable
to it. (Relampagos vs. Cumba, 243 SCRA 690; Edding vs. COMELEC, 246 SCRA 502)
Where a petition for certiorari merely questioned the denial of the motion of the protestee for
extension of time to answer, the COMELEC cannot affirm the decision of the merits in the election
protest. (Acosta vs. COMELEC, 293 SCRA 578)

Evidence
The genuineness of the handwriting in the ballots can be determined without calling
handwriting experts. (Erni vs. COMELEC, 243 SCRA 706)

Unless the original documents or certified true copies of them cannot be produced or photo-
copies cannot be used as evidence. (Arroyo vs. HRET, 246 SCRA 384)

Ballots cannot be excluded on the ground that they were written by one person or were
marked on the basis of mere photo-copies, as they are not the best evidence. (Nazareno vs.
COMELEC, 279 SCRA 89)

Demurrer
A motion to dismiss for insufficiency of evidence of the protestant after the protestant has
rested is a demurrer to the evidence. If it was granted but reversed on appeal, the protestee is
deemed to have waive the right to present evidence. (Enojas vs. COMELEC, 283 SCRA 229)The
Supreme Court ruled that the nature of election protest differ from an ordinary civil action. The
Rules of Civil Procedure on demurrer to evidence cannot apply to election cases even by
analogy or in a suppletory character, especially because the application of said Rules would
not be practical and convenient. In this case, the COMELEC en banc shall decide motions for
reconsideration only of decisions of a Division, meaning those acts of final character. Clearly,
the assailed order denying petitioners demurrer to evidence, being interlocutory, may not be
resolved by the COMELEC en banc. (Gementiza vs. COMELEC, 353 SCRA 724)

Decision
A petition or protest contesting the election of barangay officials should be decided by the
municipal or metropolitan trial court within fifteen (15) days from its filing. Courts are
mandated to give preference to election contests over all other cases, except petitions for
habeas corpus and judges are enjoined to hear and decide election contests without delay. The
period provided by law must be observed faithfully because an election case involves public
interests. Time is of the essence in its disposition since uncertainty as to who is the real choice
of the people for the position must be soonest be dispelled.(Sanchez vs. Alaan, 501 SCRA 11
 b. Judges of special courts involving municipal officials are directed to resolve cases within six
months after filing. Extensions beyond the six- month period would be subject to the approval
of the Supreme Court. Should the judge fail to resolve the election contest within six months,
he would be placed under preventive suspension and relieve of all duties except to decide on
the case. The judge would also be subjected to disciplinary action. (New SC Rules of Procedure
for Election Contest Involving Municipal Officials)
c. A defeated candidate cannot be deemed elected to the office in case of disqualification of
the winning candidate. (Labo vs. COMELEC, 211 SCRA 297 and Aquino vs. COMELEC, 248
SCRA 400)
d. For the position of Punong Barangay or SK Chairman, both of which has no vice position, the
official who can legally succeed in case of vacancy therein is the kagawad who got the highest
number of votes.
e. If the winner is ineligible, the candidate who got the highest number of votes cannot be
proclaimed elected, as he did not get the majority or plurality of the votes. (Sunga vs.
COMELEC, 288 SCRA 76)

Award of Damages
1. Actual or compensatory damages may be awarded in all election contests or in quo
warranto proceedings in accordance with law, i.e., the provisions of the Civil Code pertinent to
damages. (Sec. 259, BP 881)
2. The loser cannot be ordered to reimburse the winner for the expenses incurred in the
election protest, for no law provides for it. (Atienza vs. COMELEC, 239 SCRA 298)
c. Under Sec. 264, par. 1 of BP 881, as amended, the award of damages is not among the
imposable penalties for the commission of any of the election offenses thereunder by an
individual. (Regalado vs. CA, 325 SCRA 516)
3. The mere fact that the decision in favor of the protestant was reversed on appeal is not
sufficient basis for ruling that the protestee should be awarded attorneys fees, because the
protest was filed for harassment. (Malaluan vs. COMELEC, 254 SCRA 397)

Execution of Judgment Pending Appeal

BP 881 and the other election laws do not specifically provide for execution pending appeal of
judgment in election cases, unlike the Election Code of 1971. The failure of the extant election
laws to reproduce Sec. 218 of the Election Code of 1971 does not mean that the execution of
judgment pending appeal is no longer available in election cases.
The Supreme Court has explicitly recognized and given approval to execution of judgments
pending appeal in election cases filed under existing lawsThe rationale why execution
pending appeal is allowed in election cases is to give much recognition to the worth of a trial
judges decision as that which is initially ascribed by the law to the proclamation by the board
of canvassers
Governed by Section 2, Rule 39 of the 1997 Rules of Civil Procedure. Execution pending appeal
should be based upon good reasons to be stated in a special order. The following constitute
good reasons and a combination of two or more of them will suffice to grant execution
pending appeal:
i. Public interest involved or will of the electorate
ii. the shortness of the remaining portion of the term of the contested office
iii. length of time that the election contest has been pending (Fermo vs. COMELEC 328 SCRA
52)
iv. Filing of bond as a condition for the issuance of a corresponding writ of execution to answer for
the payment of damages which the aggrieved party may suffer by reason of the execution pending
appeal. (Ramas vs. COMELEC, 286 SCRA 189)
Execution pending appeal cannot be ordered on the basis of gratuitous allegations that public
interest is involved and that the appeal is dilatory. (Camlian vs. COMELEC, 271 SCRA 757) A
motion for execution pending appeal filed after the expiration of the period to appeal can no
longer be granted. (Relampagos vs. Cumba, 243 SCRA 690)
A motion for execution pending appeal based on Sec. 2 of Rule 39, Rules of Court may be
granted on motion of prevailing party that cites good reasons and while the court has
jurisdiction over the case and in possession of either the original record or the record of appeal
at the time of filing the motion. Good reasons must be stated in the order granting the
motion. (Zacate vs. COMELEC, 353 SCRA 441)
The requisites for the grant of execution pending appeal are:
(1) there must be a motion by the prevailing party with notice to the adverse party;
(2) there must be a good reason for the execution pending appeal; and
3. the good reason must be stated in a special order granting the execution pending
appeal.. (Navarosa vs. COMELEC, 411 SCRA 369)

Motion for reconsideration

a. One motion for reconsideration is allowed in the contest involving the following:
i. President 10 days
ii. Vice President 10 days (Rule 65, Rules of Presidential Electoral Tribunal)
3. Senator 10 days (Rule 64 of Senate Electoral Tribunal)
4. Congressmen 10 days (Rule 74, 1988 Rules of HRET)
5. Regional, provincial and city officials 5 days (Sec. 2, Rule 19, COMELEC Rules of
Procedure)
b. No motion for reconsideration is allowed in election contests involving the following:
1. Municipal officials (Sec. 256, BP 881; Veloria vs. COMELEC, 211 SCRA 907)
However, this rule should not be applied to the dismissal of an election protest for failure of the
counsel of the protestant to appear at the pre-trial, since pre-trial is not applicable to election
protest. (Pangilinan vs. De Ocampo, 232 SCRA)
2. Barangay officials (Sec. 19, Rule 37 and Sec. 12, Rule 38, COMELEC Rules of Procedure)
3. Sanggunian Kabataan (Sec. 19, Rule 37 and Sec. 12 Rule 38, COMELEC Rules of
Procedure)
c. Since only decisions of the COMELEC en banc may be elevated to the Supreme Court, a
party who did not file a motion for reconsideration of a decision of a division of the COMELEC
cannot elevate the case to the Supreme Court. (Reyes vs. RTC of Oriental Mindoro, 244 SCRA
41)

d. A resolution of the COMELEC en banc is not subject to reconsideration, therefore, any party
who disagrees with it is to file a petition for certiorari under Rule 65 of the Rules of Civil
Procedure a motion for reconsideration of an en banc ruling, resolution, order or decision
except in election offense cases is a prohibited pleading under the COMELEC Rules of
Procedure.
For a party to wait until the COMELEC en banc denies his motion for reconsideration would be
to allow the reglementary period for filing a petition for certiorari with the Supreme Court to
run and expire. (Angelia vs. COMELEC, 322 SCRA 757)

Review
1. Jurisdiction
Senator Supreme Court within 60 days. (Sec. 4, Rule 65, Rules of Court)
Congressman Supreme Court within 60 days (Lerias vs. HRET; Sec. 4, Rule 65, Rules of Court)
Regional, provincial and city officials Supreme Court within 30 days (Sec. 7, Art IX-A, Phil.
Const.)
Municipal officials

1. COMELEC within 5 days (Sec. 22 RA 7166; Sec. 3 Rule 22 of COMELEC Rules of

Procedure, (Lindo vs. COMELEC, 194 SCRA 25 and Zamora vs. COMELEC, 442 SCRA 397)

2) Supreme Court within 30 days (Rivera vs. COMELEC, 199 SCRA 178)

v. Barangay officials
1) COMELEC within 5 days [Sec. 2(2), Art. IX-C, Phil. Const.; Sec. 3, Rule 22, COMELEC Rules of
Procedure; Calucag vs. COMELEC, 274 SCRA 4 05]
2) Supreme Court within 30 days (Flores vs. COMELEC, 184 SCRA 484)

vi. Sangguniang Kabataan

1. COMELEC within 5 days (Sec. 1 RA 7808)
2) Supreme Court within 30 days (Flores vs. COMELEC, 184 SCRA 484)

Form
Where the appellant filed an appeal brief instead of a notice of appeal to the COMELEC, the
appeal should not be dismissed, since the determination of the will of the people should not be
thwarted of technicalities. (Pahilan vs. Tabalba, 230 SCRA 205)

Failure to Pay Appellate Docket Fee

1. An appeal may be dismissed for failure of the appellant to pay the appellate docket
fee. (Reyes vs. RTC of Oriental Mindoro, 244 SCRA 41)
2. An appeal may be dismissed if the full appellate docket fee was not paid, as payment of
the full amount is indispensable for perfection of the appeal.(Rodillas vs. COMELEC, 245 SCRA
702)
3. Where the appeal involved a barangay election, appeal must be made to the COMELEC
within five days from promulgation. Appeal fee must be paid within the same period in the
cash division of the COMELEC. While the notice of appeal was filed within the reglementary
period and appeal fees were paid on time the payment was made with the cashier of METC
and not with cash division of COMELEC. After realizing his mistake, appellant paid the total
amount of appeal fee on the ninth day to the COMELEC. Dismissal of appeal by the COMELEC
is proper for failure to pay appeal fees on time.(Villota vs. COMELEC, GR No. 146724, August
10, 2001)

Scope of Authority
Errors committed by the trial court may be considered even if they were not assigned as
errors. (Arao vs. COMELEC, 210 SCRA 290)

XIV. ELECTION OFFENSES

Criminal and electoral aspects of an election offense.

An election offense has criminal as well as electoral aspects. (Sunga vs. COMELEC, 288 SCRA
76)
1. Its criminal aspect involves the ascertainment of the guilt or innocence of the accused
candidate like in any other criminal case, it usually entails a full-blown hearing and the
quantum of proof required to secure a conviction beyond reasonable doubt.
2. Its electoral aspect is a determination of whether the offender should be disqualified
from office. This is done through administrative proceeding which is summary in character and
requires only a clear preponderance of evidence. Thus, under Section 4 of the COMELEC Rules
of Procedure, petitions for disqualifications shall be heard summarily after due notice. In a
disqualification case, it is the electoral aspect that is involved under which an erring candidate
may be disqualified even without prior criminal conviction. (Sunga vs. COMELEC, 288 SCRA 76)
The COMELEC is mandated to dismiss a complaint for disqualification of a candidate who has
been charged with an election offense under Section 251 of the OEC but who has already been
proclaimed as winner by the Board of Canvassers. But is the COMELEC finds that there is
probable cause, it shall order its Law Department to file appropriate Information with the
Regional Trial Court which has territorial jurisdiction over the offense, but shall nonetheless,
order the dismissal of the complaint for disqualification, without prejudice to the outcome of
the criminal case. If the trial court finds the accused guilty beyond reasonable doubt of the
offense charged, it shall order his disqualification pursuant to Section 264 of the OEC as
amended by Section 46 of RA 8189. (Albana vs. COMELEC, 435 SCRA 98)

Administrative liability in election related cases

1. A first level court has no jurisdiction to order the suspension of the canvassing of
election returns. Libardos vs. Casar, 234 SCRA 13)
2. A judge who grants a petition for inclusion of voters by simply conducting an interview
of the petitioners is administratively liable. (Mercado vs. Judge Dysangco, A.M. No. MTJ-00-
1301, July 30, 2002)

3. By annulling protestees proclamation as duly elected Punong Barangay, despite being

aware of the fact that his court had no power to do so, not only is the judge guilty of grave
abuse of authority, he also manifests unfaithfulness to a basic legal rule as well as injudicious
conduct.. Whenever an application for TRO is filed, the Court may act on the application only
after all parties have been notified and heard in a summary hearing. Issuing the TRO after
receiving evidence ex parte is grave abuse of authority, misconduct and prejudicial to the
proper administration of justice.(Gustilo vs. Judge Real, 353 SCRA 1)

4. A lower court judge who issued a writ of injunction against the COMELEC, his court being of
subordinate status and rank vis--vis the COMELEC, is guilty of gross ignorance of the law. The
judge should have known that COMELEC, since its creation, has been accorded full discretion
given its constitutional mandate to enforce and administer all laws relative to the conduct of
election, plebiscite, initiative, referendum and recall.(COMELEC vs. Judge Datu Imam, 304
SCRA 106)

5. Violation of Section 232 of the OEC, which makes unlawful for the persons referred therein
to enter the canvassing room, is a non-criminal act but certainly warrants, after proper
hearing, the imposition of administrative penalties. Under Section 2 of Article IX-C of the
Constitution, the COMELEC may recommend to the President the imposition of disciplinary
 action on any officer or employee the COMELEC has deputized for violation of its directive.
Also, under the Revised Administrative Code, the COMELEC may recommend to the proper
authority the suspension or removal of any government official or employee found guilty of
violation of election laws or failure to comply with COMELEC orders or findings. (Malinias vs.
COMELEC, 390 SCRA 480)

Persons criminally liable

Not only principals but also accomplices and accessories, as defined in the Revised Penal
Code, are criminally liable for election offenses. If one responsible be a political party or an
entity, its president or head, the officials and employees of the same, performing duties
connected with the offense committed and its members who may be principals, accomplices
or accessories shall be liable, in addition to the liability of such party or entity.

Transactional Immunity. Those who have committed election offenses but volunteer to give
information and testify on any violation of said law in any official investigation, or proceeding
with reference to which his information and testimony is given transactional immunity. The
testimony of a voluntary witness in accord with his sworn statement operates as a pardon for
the criminal charges to which it relates. If such witness later refuses to testify or testifies but
contrary to his affidavit, he loses his immunity from suit and may be prosecuted for violation of
Sec. 261 (a) and (b) of the OEC, perjury under Art. 183 of the Revised Penal Code, or false
testimony under Art. 180 of the same Code. (COMELEC vs. Espanol, 417 SCRA 554)

The power to grant exemption is vested solely on the COMELEC. This power is concomitant
with its authority to enforce election laws, investigate election offenses and prosecute those
committing the same. The exercise of such power should not be interfered with by the trial
court. Neither may the Supreme Court interfere with the COMELECs exercise of its discretion
in denying or granting exemptions under the law, unless the COMELEC commits a grave abuse
of discretion amounting to excess or lack of jurisdiction. (Ibid.)

Penalties
As a general rule, the penalty for an election offense under the Code, except that of failure to
register and failure to vote, is imprisonment of not less than one year but not more than six
years and the offender shall not be subject to probation and shall suffer disqualification to hold
public office and deprivation of the right of suffrage. However, RA 9369 upgraded the penalty
to 8 years and 1 day to 12 years for the offense of failure to post voters list, stealing ballots,
election returns and certificates of canvass and, to life imprisonment for the special election
offense of electoral sabotage.

Investigation and Prosecution: COMELEC Jurisdiction

1. The Constitution empowers the COMELEC to investigate and when appropriate,
prosecute election offenses. (Art. IX-C, 2(6)). The conduct of preliminary for the purpose of
determining whether or not there is probable cause to believe that the accused is guilty of the
offense charge, and therefore, should be subjected to trial is the function of the
COMELEC. (COMELEC vs. Espanol, 417 SCRA 554)
2. The COMELEC has exclusive jurisdiction to conduct preliminary investigation of and
prosecute election offenses committed by any person, whether private individual or public
officer or employee, and in the latter instance, irrespective of whether the offense is
committed in relation to his official duties or not. It is the nature of the offense and not the
personality of the offender that matters. As long as the offense is an election offense,
jurisdiction over the same rests exclusively with the COMELEC, in view of its all-embracing
power over the conduct of election. [Sec 2(6), Art. IX-C, Phil. Const.; Sec. 265 BP 881; Naldoza
vs. Lavilles, 254 SCRA 286) This holds true even if the offense is committed by a public officer
in relation to his office. (Corpuz vs. Tanodbayan, 149 SCRA 281)
3. All that is required in the preliminary investigation is the determination of probable cause to
justify the holding of petitioners for trial. Preliminary investigation is not the occasion for the
full and exhaustive display of the parties evidence. It is for the presentation of such evidence
only as may engender a well-grounded belief that an offense has been committed and accused
is probably guilty thereof. The Finding of probable cause in the prosecution of election offenses
rests in the COMELECs sound discretion. Generally, the Court will not interfere with such
finding of the COMELEC absent a clear showing of grave abuse of discretion. (Baytan vs.
COMELEC, 396 SCRA 703)

4. Under Section 265 of the OEC, the COMELEC, through its duly authorized legal officers, has
the exclusive power to conduct preliminary investigation of all election offenses punishable
under the OEC, and to prosecute the same. The acts of such deputies within the lawful scope
of their delegated authority are, in legal contemplation, the acts of the COMELEC. (COMELEC
vs. Espanol, 417 SCRA 554)
 The COMELEC may avail of the assistance of other prosecuting arms of the government. The
COMELEC can deputize prosecutors to investigate and prosecute offenses even after
election. (People vs. Basilla, 179 SCRA 87) The Chief State Prosecutor, all Provincial and City
Prosecutors, or their respective assistants are given continuing authority, as deputies of the
COMELEC to conduct preliminary investigation of complaints involving election offenses and to
prosecute the same. This authority may be revoked or withdrawn by the COMELEC anytime
whenever, in its judgment, such revocation or withdrawal is necessary to protect the integrity
of the COMELEC and to promote the common good, or when it believes that the successful
prosecution of the case can be done by the COMELEC. (COMELEC vs. Tagle, 397 SCRA 618
When the COMELEC nullifies a resolution of the Provincial Prosecutor which is the basis of the
informations for vote-buying, it, in effect, withdraws the deputation granted to the prosecutor.
Such withdrawal of the deputation was clearly in order, considering the circumstances
obtaining in those cases,where those who voluntarily executed affidavits attesting to the vote
buying incident became witnesses against the vote buyers now stand as accused for the
same acts they had earlier denounced. What the Prosecutor did was to sabotage the
prosecution of the criminal case against the vote-buyers and put in serious peril the integrity
of the COMELEC. (Id.)
5. In the absence of any revocation of the 1993 COMELEC Rules of Procedure delegating
authority to other prosecution arms of the government to conduct preliminary investigation of
complaints involving election offenses, the city prosecutors continuing delegation to
prosecute a case for violation of the election gun ban stays. (Margarejo vs. Escoses, 365 SCRA
190)
6. A provincial election supervisor authorized to conduct a preliminary investigation may file a
case without need of approval of the provincial prosecutor. (People vs. Inting, 187 SCRA 788)
7. A prosecutor who was deputized by the COMELEC cannot oppose the appeal filed by the
COMELEC from the dismissal of a case, since the power to prosecute election offenses is
vested in the COMELEC. (COMELEC vs. Silva, 286 SCRA 177)
8. Since it is a preliminary investigation, it is the COMELEC who will determine the existence of
probable cause, the complainant cannot ask it to gather evidence in support of the
complaint. (Kilosbayan, Inc. vs. COMELEC, 280 SCRA 892)
9. Whether initiated motu propio or filed with the COMELEC by any other party, the complaint
shall be referred to the COMELEC Law Department for investigationThe COMELEC Chairman,
in his personal capacity may file a complaint directly with the COMELEC Law Department
pursuant to Sec. 4, Rule 34 of the COMELEC Rules of Procedure. No requirement in Sec. 5 that
only the COMELEC en banc may refer a complaint to the Law Department for investigation nor
is there a rule against the COMELEC Chairman directing the conduct of a preliminary
investigation, even if he himself were the complainant in his private capacityWhere the
complaint was directly filed with the Law Department under Sec. 4 of Rule 32 of the COMELEC
Rules of Procedure obviously there is no need to refer such complaint to the same Law
DepartmentUnder Sec. 5 of Rule 34 of the COMELEC Rules of Procedure, the preliminary
investigation may be delegated to any of those officials specified in the rule upon the direction
of the COMELEC Chairman. (Laurel vs. Presiding Judge, RTC Manila Br. 10, 323 SCRA 778)
10. The court in which a criminal case was filed may order the COMELEC to order a
reinvestigation. (People vs. Delgado, 189 SCRA 715)

Jurisdiction to try the Case

The Regional Trial Court shall have the exclusive original jurisdiction to try and decide any
criminal action or proceedings for violation of the Omnibus Election Code.
The expanded jurisdiction of the Municipal Trial Court (RA 7691) does not include criminal
cases involving election offenses, because by special provision of Section 268 of BP 881, they
fall within the jurisdiction of the Regional Trial Court. (COMELEC vs. Noynay, 292 SCRA 354)
Under Sec. 268 of BP 881, regional trial courts have exclusive jurisdiction to try and decide any
criminal action or proceeding for violation of the Code, including those penalized by
imprisonment not exceeding six years, but except those relating to the offense of failure to
register or failure to vote.(Juan vs. People, 322 SCRA 125)

Preferential disposition of election offense

Section 257 of the OEC requires that the election cases brought before the COMELEC shall be
decided within 90 days from the date of its submission for decision. However, the preferential
disposition applies to cases involving violations of the election laws before the courts and not
those before the COMELEC. Hence, the COMELEC did not abuse its discretion when it failed to
treat the case preferentially. (Alvarez vs. COMELEC, 353 SCRA 434)
Prescriptive period for election offenses
Prescription of the crime or offense is the forfeiture or loss of the right of the State to
prosecute the offender after the lapse of certain time. Election offenses shall prescribe after
five (5) years from the date of their commission. If the discovery of the offense be made in an
 election contest proceedings, the period of prescription shall commence on the date on which
the judgment in such proceedings becomes final and executory.
The offense of double registration allegedly occurred on June 22, 1997 when petitioners
registered for a second time in a different precinct without canceling their previous
registration. At this point the period of prescription for the alleged offense started to run.
However, prescription is interrupted when the proceedings are instituted against the offender.
Specifically, the period of prescription is interrupted by the filing of the complaint even if it be
merely for purposes of preliminary examination or preliminary investigation. The liberal
construction of punitive laws in relation to the prescription of offenses cannot be invoked to
prejudice the interest of the State to prosecute election offenses. (Baytan vs. COMELEC, 396
SCRA 703)

Conviction and Pardon

1. The necessary penalty of temporary absolute disqualification disqualifies the convict
from public office and from the right to vote, such disqualification to last only during the term
of sentence.
2. The accessory penalty of perpetual special disqualification for exercise of suffrage
deprives the convict of the right to vote or to be elected to or hold public office perpetually, as
distinguished from temporary disqualification which last during the term of the sentence.
3. The perpetual or temporary special disqualification for the exercise of the right of
suffrage shall deprive the offender perpetually or during the term of the sentence, according
to the nature of said penalty, of the right to vote in any popular election for any public office or
to be elected to such office.
4. The President may grant pardon for those convicted of election offenses only upon the
recommendation of the COMELEC.
5. A plenary pardon, granted after the election but before the date fixed by law for
assuming office, has the effect of removing the disqualification prescribed by both the criminal
and electoral laws. (Lacuna vs. Abes, 24 SCRA 780)
6. Where the court failed to impose the accessory penalty provided for by law, the same is
deemed imposed.

Offenses
1. Vote-buying
1. The fact that at least one voter in at least 20 % of the precincts in a municipality, city or
province was offered money by the relatives, leaders, or sympathizers of a candidate to
promote his elections shall create a presumption of conspiracy to bribe voters.
2. The fact that at least 20% of the precincts of the municipality, city or province to which
the office aspired for by the candidates is affected by the offer creates the presumption that
the candidate and his campaign managers are involved in the conspiracy.
c. Any person who is guilty and willingly testifies shall be exempt from prosecution. (Sec. 28,
RA 6646)
One of the effective ways of preventing the commission of vote-buying and of prosecuting
those committing it is the grant of immunity from criminal liability in favor of the party whose
vote was bought. This grant of immunity will encourage the recipient or acceptor to come into
the open and denounce the culprit-candidate, and will ensure the successful prosecution of the
criminal case against the latter. (Tagle vs. COMELEC, 397 SCRA 618)

d. The traditional gift-giving by the municipality during Christmas, which was not done to
induce voters for the mayor, does not constitute vote-buying. (Lozano vs. Martinez, 203 SCRA
256)

Appointment of New Employees

The prohibition against appointment of a government employee within 45 days before regular
election refers to position covered by the civil service and does not apply to the replacement
of a councilor who died. (Ong vs. Martinez, 188 SCRA 830)

Transfer of Government Employees

Since the Omnibus Election Code does not per se prohibit the transfer of government
employees during the election period but only penalizes such transfers made without the prior
approval of the COMELEC in accordance with the implementing regulations, the transfer of
government employees before the publication of the implementing regulations is not an
election offense. (People vs. Reyes, 247 SCRA 328)
Two elements of the offense prescribed under Sec. 261 (h) of BP 881, as amended are: (1) a
public officer or employee is transferred or detailed within the election period as fixed by the
COMELEC, and (2) the transfer or detail was effected without prior approval of the COMELEC in
accordance with its implementing rules and regulations. (Regalado vs. CA, 325 SCRA 516)

Unauthorized Entry into Polling Place

Mere presence of an unauthorized person inside a polling place is an offense. (COMELEC vs.
Romillo, 158 SCRA 716)

Failure to make Proclamation

Proclaiming a losing candidate instead of the winner also constitutes failure to make a
proclamation. (Agujetas vs. CA, 261 SCRA 17)
Carrying deadly weapon in Precinct
To support a conviction carrying a deadly weapon inside a precinct under Section 261(p) of the
OEC, it is not necessary that the deadly weapon be seized from the accused while he was in
the precinct or within a radius of 100 meters therefrom. It is enough that the accused carried
the deadly weapon in the polling place and within a radius of 100 meters thereof during any
of the specified days and hours. (Mappala vs. Nunez, 240 SCRA 600)

Refusing to Credit Candidate with Vote

Under Sec. 27(b) of RA 6646, two act, not one, are penalized i.e., first, the tampering,
increasing or decreasing of votes received by a candidate in any election; and second, the
refusal, after proper verification and hearing, to credit the correct votes or deduct such
tampered votes. (Pimentel vs. COMELEC, 289 SCRA 586) Under RA 9369, if these acts are
perpetuated in a large scale, the same shall be considered not as an ordinary election offense
under Sec 261 and/or 262 of BP 881 but a special election offense to be known as electoral
sabotage and the penalty to be imposed shall be life imprisonment.
Switching of Ballots
Switching of official ballots with simulated ballots is an election related incident, not an
ordinary act of falsification of public documents, for which the COMELEC, through its
authorized legal officers, has the exclusive power to conduct preliminary investigation and to
prosecute.(Pena vs. Martizano, 403 SCRA 281)
Electoral Sabotage
Under RA 9369, The Poll Automation Law, amending RA 8436, the following shall be guilty of a
non-bailable special election offense to be known as electoral sabotage which is punishable by
life imprisonment:

1. Any person who removes the certificate of canvass posted on the wall, whether within
or after the prescribed 48 hours of posting, or defaces the same in any manner.
2. Any person who simulates an actual certificate of canvass or statement of votes, or a
print or digital copy thereof.
3. The Chairman or any member of the Board of Canvassers who signs or authenticates a
print of the certificate of canvass or its supporting statement of votes outside of the
canvassing area.
4. When the tampering of votes, or refusal to credit the correct votes or deduct tampered
votes is/are committed in the election of national elective office which is voted upon
nationwide and such acts shall adversely affect the results of the election to the said
national office to the extent that losing candidate/s is/are made to appear the winner/s.
5. Regardless of the elective office involved, when the tampering of votes committed, or
the refusal to credit the correct vote or to deduct tampered votes perpetrated, is
accomplished in a single document and involved in the said tampering exceed 5000
votes, and the same adversely affects the true results of the election.
6. Any and all other forms of tampering increase/s and/or decrease/s perpetuated or in
cases of refusal to credit the correct votes or deduct the tampered votes, where the
total votes involved exceed 10,000 votes.

I. Cancellation of Certificate of Candidacy

1. The proceeding on the cancellation of a certificate of candidacy does not merely pertain to
the administrative functions of the COMELEC. Cancellation proceedings involve the COMELECs
quasi-judicial function which must first be decided by the COMELEC in division. Hence, the
COMELEC en banc acted without jurisdiction when it ordered the cancellation of a candidates
certificate of candidacy without first referring the case to a division for summary hearing. A
summary proceeding does not mean that the COMELEC should throw away the requirements
of notice and hearing. The COMELEC should have at least given notice to the candidate to give
him the chance to adduce evidence to explain his side in the cancellation proceedings. The
COMELEC has deprived the candidate of procedural due process of law when it approved the
report of the Law Department without notice and hearing. (Bautista vs. COMELEC, 414
SCRA299)

2. When a candidate files his certificate of candidacy, the COMELEC has a ministerial duty to
receive and acknowledge its receipt. The COMELEC may not, by itself, without the proper
proceedings, deny due course to or cancel a certificate of candidacy filed in due form. A
petition to deny due course to or cancel a certificate of candidacy shall be heard summarily
after due notice. The law mandates that the candidates must be notified of the petition against
them and should be given the opportunity to present evidence on their behalf. This is the
essence of due process.(Luna vs. COMELEC, 522 SCRA 107)

In Lluz vs. COMELEC, 523 SCRA 456, the Court cited three conclusions: First, a
misrepresentation in a certificate of candidacy is material when it refers to the qualification for
elective office and affects the candidates eligibility. Second, when a candidate commits a
material representation, he or she may be proceeded against through a petition to deny due
course to or cancel a certificate of candidacy under Section 78, or through criminal prosecution
under Section 262 for violation of Section 74. Third, a misrepresentation of a non-material fact,
or a non-material misrepresentation, is not a ground to deny due course to or cancel a
certificate of candidacy under Section 78. In other words, for a candidates certificate of
candidacy to be denied due course or canceled by the COMELEC, the fact misrepresented
must pertain to a qualification for the office sought by the candidate.

In the case of Macalintal vs. COMELEC, GR No. 157013, July 11, 2003, the Supreme Court ruled
that Section 5(d) of RA 9189 does not violate the residency requirement in Section 1 of Article
V of the Constitution. Stating that it is an exception to the residency requirement. The
Constitutions framers intended to enfranchise as much as possible all Filipino citizens abroad
who have not abandoned their domicile of origin. Congress enacted the law prescribing a
system of overseas absentee voting in compliance with the constitutional mandate. Such
mandate expressly requires that Congress provide a system of absentee voting that
necessarily presupposes that the qualified citizen of the Philippines abroad is not physically
present in the country. Under RA 9189, an immigrant may still be considered a qualified
citizen of the Philippines abroad upon fulfillment of the requirement of registration under the
new law for the purpose of exercising their right of suffrage. The qualified Filipino abroad who
executed the affidavit is deemed to have retained his domicile in the Philippines. He is
presumed not to have lost his domicile by his physical absence from this country. His having
become an immigrant does not necessarily imply an abandonment of his intention to return to
his domicile of origin, the Philippines. He must be given the opportunity to express that he has
not actually abandoned his domicile in the Philippines by executing the affidavit. The execution
of the affidavit is not the enabling or enfranchising act. The affidavit is not only proof of the
intention of the immigrant or permanent resident to go back and resume residency in the
Philippines, but more significantly, it serves as an explicit expression that he had not in fact
abandoned his domicile of origin.

In the same case, the Court also ruled that Section 25 of the same law empowering Congress
through the Joint Congressional Oversight Committee to exercise the power to review, revise,
amend and approve the Implementing Rules and Regulations that the COMELEC shall promulgate,
is unconstitutional This portion of the law is violates the independence of the COMELEC as it
restricts the COMELECs constitutional domain to enforce and administer all election laws.