Vous êtes sur la page 1sur 66

ELECTION LAW | ATTY.

PASCASIO
CARLO ANGELO CABRITO

I. ELECTION AND SUFFRAGE

MOYA v. DEL FIERO BALLOTS SHOULD BE READ AND APPRECIATED WITH


LIBERALITY: ballots should be read and appreciated, if not with
Moya and Del Fiero are candidates for the utmost, with reasonable, liberality. No technical rule or rules
Mayor of Municipality of Paracale. The BOC
proclaimed Moya as the winner with 102 should be permitted to defeat the intention of the voter, if that
votes margin. intention is discoverable from the ballot itself, not from
evidence aliunde. This rule of interpretation goes to the very root
Del Fiero filed a protest with the CFI. The CA
declared Del Fiero the real winner of the of the system. Rationally, also, this must be the justification for
election with 3 votes margin. the suggested liberalization of the rules on appreciation of ballots
Moya assailed the appreciation of the CA
with regard to 4 sets of ballots.
1. Set A (8 Ballots)
SC: 2/ 8 ballots are admitted for
Petitioner.
2. Set B (3 Ballots)- R. Del Fierro
SC: Sustained CA.
3. Set C (7 Ballots)- Rufino Del Fierro
SC: Sustained CA.
4. Set D (72 Ballots) P. Del Fierro
SC: Sustained CA.

SC: All in all, only 2 votes can be discounted


against Del Fierro. Del Fierro still wins
because of a margin of 1 VOTE.

BADELLES v. CABILI REPUBLICANISM IS THE ADOPTION OF REPRESENTATIVE TYPE OF


GOVERNMENT: As long as popular government is an end to be
Consolidated case: achieved and safeguarded, suffrage, whatever may be the
1. For City Mayor of Iligan
Badelles assails the proclamation modality and form devised, must continue to be the means by
of Cabili which the great reservoir of power must be emptied into the
2. For City Councilors (5 seats) receptacular agencies wrought by the people through their
Legaspi and Barazon assails the
proclamation of the 5 winners. Constitution in the interest of good government and the common
weal. Republicanism, in so far as it implies the adoption of a
They contend that the election of the representative type of government, necessarily points to the
protestees were tainted with flagrant
violations of mandatory provisions of enfranchised citizen as a particle of popular sovereignty and as
Election Law: (1) More than 200 voters were the ultimate source of the established authority.
registered per precinct contrary to law; (2)
No publication of voters was made; (3) not
less than 8000 voters were not able to vote; PURPOSE OF ELECTION LAW: ASSURES FREE, HONEST, AND
(4) 8300 not qualified to vote were able t ORDERLY EXPRESSION OF VIEWSA republic then to be true to its
cast their votes. name requires that the government rests on the consent of the
RTC dismissed the petition on the ground of people, consent freely given, intelligently arrived at, honestly
lack of cause of action on their part. recorded, and thereafter counted. Only thus can they be really
looked upon as the ultimate sources of established authority. It is
SC: Citing Abes v. COMELEC courts have an
obligation to look into allegations of their undeniable right to have officials of their unfettered choice.
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

misconduct in elections. While COMELEC The election law has no justification except as a means for
has no jurisdiction over allegations of
election fraud, the courts are empowered assuring a free, honest and orderly expression of their views. It is
to do so. of the essence that corruption and irregularities should not be
permitted to taint the electoral process.
TOLENTINO v. COMELEC NOTICE IS PRESUMED WHEN SPECIAL ELECTION IS FOR
(CARPIO) SENATOR. NOTICE IS CHARGED BY THE STATUTE ITSELF: The
calling of an election, that is, the giving notice of the time and
Resolution No. 84 was passed by Senate place of its occurrence, whether made by the legislature directly
certifying the existence of a vacancy
following the confirmation of Sen. Guingona
or by the body with the duty to give such call, is indispensable to
as the VP of PGMA. The Resolution stated the election’s validity.26 In a general election, where the law fixes
that the 13th place shall be elected for the the date of the election, the election is valid without any call by
vacancy until the end of the vacated term.
the body charged to administer the election.27
Thereafter, COMELEC issued the assailed
resolution which declared HONASAN as In a special election to fill a vacancy, the rule is that a statute that
elected to serve the unexpired term of
expressly provides that an election to fill a vacancy shall be held
GUINGONA.
at the next general elections fixes the date at which the special
It is not disputed that according to relevant election is to be held and operates as the call for that election.
laws:
Consequently, an election held at the time thus prescribed is not
In case a vacancy arises in Congress at least invalidated by the fact that the body charged by law with the duty
one year before the expiration of the term, of calling the election failed to do so.28 This is because the right
Section 2 of R.A. No. 6645, as amended,
and duty to hold the election emanate from the statute and not
requires COMELEC:
from any call for the election by some authority29 and the law thus
(1) to call a special election by fixing the date charges voters with knowledge of the time and place of the
of the special election, which shall not be
election.30
earlier than sixty (60) days nor later than
ninety (90) after the occurrence of the
vacancy but in case of a vacancy in the Conversely, where the law does not fix the time and place for
Senate, the special election shall be held holding a special election but empowers some authority to fix the
simultaneously with the next succeeding
regular election; and time and place after the happening of a condition precedent, the
statutory provision on the giving of notice is considered
(2) to give notice to the voters of, among mandatory, and failure to do so will render the election a nullity. 31
other things, the office or offices to be voted
for.
PURPOSE AND ROLE OF ELECTIONS: the consistent rule has been
to respect the electorate’s will and let the results of the election
stand, despite irregularities that may have attended the conduct
of the elections.35 This is but to acknowledge the purpose and
role of elections in a democratic society such as ours, which is: to
give the voters a direct participation in the affairs of their
government, either in determining who shall be their public
officials or in deciding some question of public interest; and for
that purpose all of the legal voters should be permitted,
unhampered and unmolested, to cast their ballot.
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

PUNO DISSENTING OPINION RIGHT TO VOTE IS NOT A NATURAL RIGHT, ONLY STATUTORY:
IN TOLENTINO v. COMELEC In People v. Corral,[34] we held that (t)he modern conception of
suffrage is that voting is a function of government. The right to
vote is not a natural right but it is a right created by law. Suffrage
is a privilege granted by the State to such persons as are most
likely to exercise it for the public good. The existence of the right
of suffrage is a threshold for the preservation and enjoyment of
all other rights that it ought to be considered as one of the most
sacred parts of the constitution.
SUFFRAGE IS THE PRESERVATIVE OF ALL RIGHTS: The U.S.
Supreme Court recognized in Yick Wo v. Hopkins[38] that voting is
a fundamental political right, because [it is] preservative of all
rights. In Wesberry v. Sanders,[39] the U.S. Supreme Court held
that no right is more precious in a free country than that of
having a voice in the election of those who make the laws, under
which, as good citizens, we must live. Other rights, even the most
basic, are illusory if the right to vote is undermined. Voting
makes government more responsive to community and individual
needs and desires. Especially for those who feel disempowered
and marginalized or that government is not responsive to them,
meaningful access to the ballot box can be one of the few
counterbalances in their arsenal.[40]
ACTUAL NOTICE IS NECESSARY: Actual notice may be proved by
the voting of a significant percentage of the electorate for the
position in the special election or by other acts which manifest
awareness of the holding of a special election such as nomination
of candidates. In the case at bar, however, the number of votes
cast for the special election cannot be determined as the ballot
did not indicate separately the votes for the special election. In
fact, whether or not the electorate had notice of the special
election, a candidate would just the same fall as the 13th placer
because more than twelve candidates ran for the regular
senatorial elections. Nobody was nominated to vie specifically for
the senatorial seat in the special election nor was there a
certificate of candidacy filed for that position. In the absence of
official notice of the time, place and manner of conduct of the
special election, actual notice is a matter of proof. Respondents
and the ponencia cannot point to any proof of actual notice.
I respectfully submit that the electorate should have been
informed of the time, place and manner of conduct of the May
14, 2001 special election for the single senatorial seat . A
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

meaningful exercise of the right of suffrage in a genuinely free,


orderly and honest election is predicated upon an electorate
informed on the issues of the day, the programs of government
laid out before them, the candidates running in the election and
the time, place and manner of conduct of the election. It is for
this reason that the Omnibus Election Code is studded with
processes, procedures and requirements that ensure voter
information.
Bince and Benito further teach us that free and intelligent
vote is not enough; correct ascertainment of the will of the people
is equally necessary. The procedure adopted in the case at bar for
holding the May 14, 2001 special senatorial election utterly failed
to ascertain the peoples choice in the special election. Section 2
of R.A. No. 7166 provides that the special election shall be
held simultaneously with such general election. It does not
contemplate, however, the integration of the special senatorial
election into the regular senatorial election whereby candidates
who filed certificates of candidacy for the regular elections also
automatically stand as candidates in the special election.
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

II. COMMISSION ON ELECTION

1. COMPOSITION AND QUALIFICATION:

Section 1, Art. IX- C

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.

2. POWERS AND FUNCTIONS OF COMELEC:

Section 2, Art. IX- C: 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.
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

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.

PURISIMA v. SALANGA BOARD OF CANVASSERS MUST STOP CANVASSING WHEN THERE


IS A PATENT IRREGULARITY IN THE ELECTION RETURNS: It is the
Purisima and Cordero were candidates for duty of the board of canvassers to suspend the canvass in case of
the three seats of the Provincial Board
Members of Ilocos Sur. During the patent irregularity in the election returns. In the present case,
canvassing, Purisima noted that the returns there were patent erasures and superimpositions, in words and
showed on their face that the numbers for figures on the face of the election returns submitted to the board
Cordero were manifestly erased and
superimposed with other words/ numbers. of canvassers. It was therefore imperative for the board to stop
the canvass so as to allow time for verification of authentic copies
Purisima requested for a suspension. The and recourse to the courts (Javier v. Commission on Elections, L-
BOC denied the request since the alleged
22248, January 30, 1965). A canvass or proclamation made
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

discrepancies is not yet substantial to alter notwithstanding such patent defects, without awaiting proper
the results.
remedies, is null and void (Ibid.). In fact, as stated, the
After all ballots have been read, 1857 margin Commission on Elections declared the canvass and proclamation,
in favor of Cordero, Purisma called the BOC’s made by respondent provincial board of canvassers, null and void.
attention again. The BOC still denied the
request and proclaimed Cordero. Purisma
filed a petition with COMELEC. COMELEC
declared the canvassing null and void.

A petition for recount was filed with CFI. CFI


dismissed the case.

CAUTON v. COMELEC AN ORDER TO OPEN BALLOT BOXES TO INVESTIGATE CANVASS


OF ELECTION IS AN EXERCISE OF COMELEC’S POWER TO
Sanidad and Cauton along with Reyes are ADMINISTER AND ENFORCE ELECTION LAWS: the Commission on
candidates for the Representative of 2 nd
District of Ilocos Sur. Elections simply performed a function as authorized by the
Constitution, that is, to "have exclusive charge of the
During the canvassing, Sanidad brought to enforcement and administration of all laws relative to the
the attention of the BOC the returns
submitted from 3 municipalities. He alleged conduct of elections and ... exercise all other functions which
that they differed from the entries appearing may be conferred upon it by law." The Commission has the
in the copies in possession of the LP. power to decide all administrative questions affecting elections,
Thus, Sanidad filed a petition with COMELEC except the question involving the right to vote.
to open the ballot boxes from the subject-
municipalities to verify the discrepancies and Commission on Election has the power to investigate and act on
to order the BOC to temporarily refrain from
the canvassing. COMELEC granted the the propriety or legality of the canvass of election returns made by
petition and directed the opening of the the board of canvassers. The suspension of the proclamation of
ballot boxes. the winning candidate pending an inquiry into irregularities
Cauton in turn filed this petition for brought to the attention of the Commission on Elections was well
prohibition. SC gave due course but did not within its administrative jurisdiction, in view of the exclusive
issue a TRO upon the assailed COMELEC authority conferred upon it by the Constitution (Art. X ) for the
order. Without a TRO the order was carried
out. It was found out that there was a administration and enforcement of all laws relative to elections.
discrepancy between the copy of the The Commission certainly had the right to inquire whether or not
Provincial Treasurer and the one inside the discrepancies existed between the various copies of election
boxes.
Petitioner contends that COMELEC cannot returns for the precincts in question, and suspend the canvass all
issue such order because the Election Law the meantime so the parties could ask for a recount in case of
limits such power for purposes of variance ....'
prosecution of election law violation only and
not to help a candidate win an election.

ROQUE v. COMELEC DEISGNATION AS JOINT VENTURE PARTNER FOR CONDUCT OF


(VELASCO) ELECTION IS NOT TANTAMOUNT TO CEDING OF POWERS TO
ADMINISTER ELECTION LAWS: There is to us nothing in Art 3.3 of
the automation contract, to support the simplistic conclusion of
abdication of control pressed on the Court. Insofar as pertinent,
Art 3.3 reads:
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

3.3 The PROVIDER shall be liable for all its obligations under this
Project and the performance of portions thereof by other persons or
entities not parties to this Contract shall not relieve the PROVIDER of
said obligations and concomitant liabilities.

SMARTMATIC, as the joint venture partner with the greater track


record in automated elections, shall be in charge of the technical
aspects of the counting and canvassing software and hardware,
including transmission configuration and system integration.
SMARTMATIC shall also be primarily responsible for preventing and
troubleshooting technical problems that may arise during the
elections. (Emphasis added.)

The proviso designating Smartmatic as the joint venture partner


in charge of the technical aspect of the counting and canvassing
wares does not to translate to ceding control of the electoral
process to Smartmatic. It was in fact an eligibility requirement
imposed.

JOINT VENTURE PARTNER IS MERELEY A LESSOR OF GOODS AND


SERVICES AND DID NOT THEREBY RESULTED TO COMELEC’S
ABDICATION OF POWER: Under the automation contract,
Smartmatic is given a specific and limited technical task to assist
the Comelec in implementing the AES. But at the end of the day,
the Smarmatic-TIM joint venture is merely a service provider and
lessor of goods and services to the Comelec, which shall have
exclusive supervision and control of the electoral process. Art. 6.7
of the automation contract could not have been more clear:

6.7 Subject to the provisions of the General Instructions to be issued


by the Commission En Banc, the entire process of voting, counting,
transmission, consolidation and canvassing of votes shall [still] be
conducted by COMELEC’s personnel and officials and their
performance, completion and final results according to specifications
and within specified periods shall be the shared responsibility of
COMELEC and the PROVIDER. (Emphasis added.)

The aforequoted provision doubtless preserves Comelec’s


constitutional and statutory responsibilities.

PUNO CONCURRING It is clear that the COMELEC has not abdicated its constitutional
OPINION IN ROQUE v. and legal mandate to control and supervise the
elections. Smartmatic and TIM are merely service providers or
COMELEC
lessors of goods and services to the Commission. Indeed, Article
6.7 of the Automation Contract, provides that the entire process
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

of voting, counting, transmission, consolidation and canvassing of


votes shall be conducted by COMELECs personnel and officials.

ARROYO v. DEPARTMENT POWER TO INVESTIGATE AND PROSECUTE ELECTION OFFENSES:


OF JUSTICE & COMELEC Section 2, Article IX-C of the 1987 Constitution enumerates the
powers and functions of the Comelec. Paragraph (6) thereof vests
COMELEC and DOJ created a joint committee in the Comelec the power to:
and fact finding team to investigate the
electoral fraud and manipulation cases (6) File, upon a verified complaint, or on its own initiative, petitions in
during the 2004 and 2007 elections. court for inclusion or exclusion of voters; investigate and, where
appropriate, prosecute cases of violations of election laws, including
The JC recommended the filing of acts or omissions constituting election frauds, offenses, and
information against GMA with other persons malpractices.
for electoral sabotage and manipulation.

Thereafter, the JC issued subpoena against


The grant to the Comelec of the power to investigate and
GMA. Therafter, an information was duly prosecute election offenses as an adjunct to the enforcement
filed with the RTC Petitioners claim that in and administration of all election laws is intended to enable the
creating the Joint Panel, the Comelec has
effectively abdicated its constitutional
Comelec to effectively insure to the people the free, orderly, and
mandate to investigate and to prosecute honest conduct of elections.The constitutional grant of
cases of violation of election in favor of the prosecutorial power in the Comelec was reflected in Section 265
Executive Department acting through the
DOJ Secretary. Under the set- up, the
of Batas Pambansa Blg. 881.
Comelec personnel is placed under the
supervision and control of the DOJ. The Section 265 of the Omnibus Election Code was amended by
chairperson is a DOJ official. Thus, the
Section 43 of R.A. No. 9369,71 which reads:
Comelec has willingly surrendered its
independence to the DOJ and has acceded to
share its exercise of judgment and discretion Section 43. Section 265 of Batas Pambansa Blg. 881 is hereby
with the Executive Branch. amended to read as follows:

SEC. 265. Prosecution. – The Commission shall, through its duly


authorized legal officers, have the power, concurrent with the other
prosecuting arms of the government, to conduct preliminary
investigation of all election offenses punishable under this Code, and
to prosecute the same.72

As clearly set forth above, instead of a mere delegated authority,


the other prosecuting arms of the government, such as the DOJ,
now exercise concurrent jurisdiction with the Comelec to conduct
preliminary investigation of all election offenses and to prosecute
the same.

COMELEC’S FORMER EXCLUSIVE POWER WAS JUST A CREATION


OF STATUTE NOT THE CONSTITUTION: the grant of exclusive
power to investigate and prosecute cases of election offenses to
the Comelec was not by virtue of the Constitution but by the
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

Omnibus Election Code which was eventually amended by Section


43 of R.A. 9369.

IN CONCURRENT JURISDICITION THERE IS NO PROHIBITION ON


JOINT AND SIMULTANEOUS EXERCISE: It must be emphasized
that the DOJ and the Comelec exercise concurrent jurisdiction in
conducting preliminary investigation of election offenses. The
doctrine of concurrent jurisdiction means equal jurisdiction to
deal with the same subject matter.104 Contrary to the contention
of the petitioners, there is no prohibition on simultaneous
exercise of power between two coordinate bodies.

ONGSIOKO- REYES v. HRET’S JURISDICTION VS COMELEC’S JURISDICTION: Second, the


COMELEC jurisdiction of the HRET begins only after the candidate is
considered a Member of the House of Representatives, as stated
Ongsioko ran for the position of in Section 17, Article VI of the 1987 Constitution:
Representative. Tan filed a petition to have
her COC cancelled and denied due course on Section 17. The Senate and the House of Representatives shall each
the ground of material misrepresentation. have an Electoral Tribunal which shall be the sole judge of all contests
(civil status, residence, birth, citizenship) relating to the election, returns, and qualifications of their respective
Members. x x x
COMELEC 1D issued a Reso cancelling her
COC. The En Banc affirmed the decision. 4
days after she was proclaimed winner. No
As held in Marcos v. COMELEC,21 the HRET does not have
remedy was invoked against the En Banc jurisdiction over a candidate who is not a member of the House
Reso. It eventually ripened into a final and of Representatives.
executory decision. On the same day, prior to
30 June 2013, Tan took her oath of office.
COMELEC’S JURISDICTION ENDS WHEN A CADIDATE BECOMES A
SC: The fact that she was able to take her MEMBER OF THE CONGRESS: Once a winning candidate has been
oath of office did not deprive COMELEC of its
proclaimed, taken his oath, and assumed office as a Member of
jurisdiction.
the House of Representatives, the COMELEC’s jurisdiction over
election contests relating to his election, returns, and
qualifications ends, and the HRET’s own jurisdiction begins.
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

III. VOTERS
1. QUALIFICATION FOR SUFFRAGE:

ARTICLE V: SUFFRAGE

Section 1. Suffrage may be exercised by all citizens of the Philippines, not otherwise
disqualified by law, who are at least eighteen years of age, and who shall have resided in
the Philippines for at least one year and in the place wherein they propose to vote, for at
least six months immediately preceding the election. 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.

2. DISQUALIFICATIONS:

Section 118. Disqualifications, OEC - The following shall be disqualified from voting:

(a) Any person who has been sentenced by final judgment to suffer imprisonment for
not less than one year, such disability not having been removed by plenary pardon or
granted amnesty: Provided, however, That any person disqualified to vote under this
paragraph shall automatically reacquire the right to vote upon expiration of five years
after service of sentence.

(b) Any person who has been adjudged by final judgment by competent court or tribunal
of having committed any crime involving disloyalty to the duly constituted government
such as rebellion, sedition, violation of the anti-subversion and firearms laws, or any crime
against national security, unless restored to his full civil and political rights in accordance
with law: Provided, That he shall regain his right to vote automatically upon expiration of
five years after service of sentence.

(c) Insane or incompetent persons as declared by competent authority.


ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

MACALINTAL v. COMELEC ABSENTEE VOTING: The method of absentee voting has been said
to be completely separable and distinct from the regular system
Macalintal assails the constitutionality of RA of voting, and to be a new and different manner of voting from
9189 or the Overseas Absentee Voting Act of
2003. In particular, it assail Sec. 5 (d) on the that previously known, and an exception to the customary and
ground that it contravenes Sec. 1, Art. V of usual manner of voting. The right of absentee and disabled voters
the PC’s requirement that a voter must be a to cast their ballots at an election is purely statutory; absentee
resident of the Philippines for one year
preceding the election and 6 months in the voting was unknown to, and not recognized at, the common law.
locality where he will vote.
AN ABSENTEE IS STILL A RESIDENT OF THE PHILIPPINES FOR
SEC. 5 (d): An immigrant or a permanent
resident who is recognized as such in the host PURPOSES OF DOMICILE: Ordinarily, an absentee is not a resident
country, unless he/she executes, upon and vice versa; a person cannot be at the same time, both a
registration, an affidavit prepared for the resident and an absentee.30 However, under our election laws
purpose by the Commission declaring that
he/she shall resume actual physical and the countless pronouncements of the Court pertaining to
permanent residence in the Philippines not elections, an absentee remains attached to his residence in the
later than three (3) years from approval of Philippines as residence is considered synonymous with domicile.
his/her registration under this Act. Such
affidavit shall also state that he/she has not
applied for citizenship in another country. RESIDENCE AND DOMICILE IN ELECITION LAW: There is a
Failure to return shall be cause for the difference between domicile and residence. ‘Residence’ is used to
removal of the name of the immigrant or
permanent resident from the National indicate a place of abode, whether permanent or temporary;
Registry of Absentee Voters and his/her ‘domicile’ denotes a fixed permanent residence to which, when
permanent disqualification to vote in absent, one has the intention of returning. A man may have a
absentia.
residence in one place and a domicile in another. Residence is not
domicile, but domicile is residence coupled with the intention to
remain for an unlimited time. A man can have but one domicile
for the same purpose at any time, but he may have numerous
places of residence. His place of residence is generally his place of
domicile, but it is not by any means necessarily so since no length
of residence without intention of remaining will constitute
domicile.

For political purposes the concepts of residence and domicile are


dictated by the peculiar criteria of political laws. As these
concepts have evolved in our election law, what has clearly and
unequivocally emerged is the fact that residence for election
purposes is used synonymously with domicile.

ACTUAL & PHYSICAL RESIDENCE IS NOT REQUIRED FOR AN


ABSENTEE VOTER: Section 2, Article V of the Constitution came
into being to remove any doubt as to the inapplicability of the
residency requirement in Section 1. It is precisely to avoid any
problems that could impede the implementation of its pursuit to
enfranchise the largest number of qualified Filipinos who are not
in the Philippines that the Constitutional Commission explicitly
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

mandated Congress to provide a system for overseas absentee


voting.

As finally approved into law, Section 5(d) of R.A. No. 9189


specifically disqualifies an immigrant or permanent resident who
is "recognized as such in the host country" because immigration
or permanent residence in another country implies renunciation
of one’s residence in his country of origin. However, same Section
allows an immigrant and permanent resident abroad to register
as voter for as long as he/she executes an affidavit to show that
he/she has not abandoned his domicile in pursuance of the
constitutional intent expressed in Sections 1 and 2 of Article V that
"all citizens of the Philippines not otherwise disqualified by law"
must be entitled to exercise the right of suffrage and, that
Congress must establish a system for absentee voting; for
otherwise, if actual, physical residence in the Philippines is
required, there is no sense for the framers of the Constitution to
mandate Congress to establish a system for absentee voting.

EXECUTION OF AFFIDAVIT IS NOT AN ENABLING OR


ENFRACHISING ACT: Contrary to the claim of petitioner, the
execution of the affidavit itself is not the enabling or enfranchising
act. The affidavit required in Section 5(d) is not only proof of the
intention of the immigrant or permanent resident to go back and
resume residency in the Philippines, but more significantly, it
serves as an explicit expression that he had not in fact
abandoned his domicile of origin. Thus, it is not correct to say
that the execution of the affidavit under Section 5(d) violates the
Constitution that proscribes "provisional registration or a promise
by a voter to perform a condition to be qualified to vote in a
political exercise."

To repeat, the affidavit is required of immigrants and permanent


residents abroad because by their status in their host countries,
they are presumed to have relinquished their intent to return to
this country; thus, without the affidavit, the presumption of
abandonment of Philippine domicile shall remain.

PEOPLE v. CORRAL RIGHT TO VOTE IS NOT A NATURAL RIGHT: The right to vote is
not a natural right but is a right created by law. Suffrage is a
Corral was charged with having voted illegally
while laboring under a legal disqualification
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

(ie sentenced by final judgement of privilege granted by the State to such persons or classes as are
imprisonment not pardoned)
most likely to exercise it for the public good.

STATE HAS A RIGHT TO RESTRICT QUALIFICATIONS FOR THE


RIGHT TO VOTE: The right of the State to deprive persons to the
right of suffrage by reason of their having been convicted of
crime, is beyond question. "The manifest purpose of such
restrictions upon this right is to preserve the purity of elections.
The presumption is that one rendered infamous by conviction of
felony, or other base offense indicative of moral turpitude, is unfit
to exercise the privilege of suffrage or to hold office. The exclusion
must for this reason be adjudged a mere disqualification, imposed
for protection and not for punishment, the withholding of a
privilege and not the denial of a personal right.
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

IV. REGISTRATION OF VOTERS

YRA v. ABANO REGISTRATION IS JUST A CONDITION PRECEDENT TO THE


EXERCISE OF THE RIGHT TO VOTE: The act of registering is only
YRA and ABANO were contenders for the one step towards voting, and it is not one of the elements that
position of municipal president of makes the citizen a qualified voter. One may be a qualified voter
Meycauayan. ABANO won. YRA instituted a
quo warranto against ABANO.
without exercising the right to vote. Registering does not confer
the right; it is but a condition precedent to the exercise of the
When ABANO ran and was elected, he was right." lawphi1.net
not a registered voter of Meycauayan, but
rather a registered voter of Manila.

Petitioner contends that since Election Law


(in 1928) requires that the candidate be a
qualified voter of the locality where he
intends to run, ABANO must be disqualified.

SC: ABANO is qualified. The fact that he is not


registered does not negate that he is a
qualified voter since registration is just a
condition precedent.

NOTE: Current Election Laws require the


candidate to be a registered voter.

AKBAYAN- YOUTH v. THE STATE MAY REGULATE REGISTRATION IN THE EXERCISE OF


COMELEC ITS POLICE POWER: The right of suffrage is not absolute. The
exercise of the right of suffrage is subject to existing substantive
Akbayan Youth sought to have a special and procedural requirements embodied in our Constitution,
registration before the May 2001 Elections. statute books and other repositories of law.
They contend that the original deadline (27
Dec 2000) caused the failure to registered of
around 4M youth.
As to the procedural limitation, the right of a citizen to vote is
necessarily conditioned upon certain procedural requirements he
Following a Senate Hearing on the matter, must undergo: among others, the process of registration.
COMELEC still resolved to deny the request of
petitioner. This prompted petitioner to file a
Specifically, a citizen in order to be qualified to exercise his right
petition with the SC. to vote, in addition to the minimum requirements set by
fundamental charter, is obliged by law to register, at present,
SC denied the petition.
under the provisions of Republic Act No. 8189, otherwise known
as the "Voter's Registration Act of 1996."

Stated differently, the act of registration is an indispensable


precondition to the right of suffrage. The State undoubtedly, in
the exercise of its inherent police power, may then enact laws to
safeguard and regulate the act of voter's registration for the
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

ultimate purpose of conducting honest, orderly and peaceful


election.

KABATAAN PARTY-LIST v. REGISTRATION IS FORM OF REGULATION AND NOT A


COMELEC QUALIFICATION FOR SUFFRAGE: The concept of qualification
insofar as suffrage is concerned should be distinguished from the
KABATAAN assails the constitutionality of RA concept of registration, which is jurisprudentially regarded as only
10367 aka Mandatory Biometrics Voters the means by which a person’s qualification to vote is determined.
Registration. The law requires that new
voters and registered voters alike submit
themselves for validation through
The act of registering is only one step towards voting, and it is not
biometrics, otherwise, new voters will not be one of the elements that makes the citizen a qualified voter and
registered and old voters will be deactivated. that one may be qualified voter without exercising the right to
Petitioners argue that the biometrics
vote. Registration is a form or regulation and not as a
validation rises to the level of an additional qualification for the right of suffrage.
qualification.

SC: Nope. The requirement of biometrics


validation is not a qualification but a mere
aspect of registration, which the state may
regulate.
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

V. CANDIDATES

POE-LLAMANZARES v. A FOUNDLING IN THE PHILIPPINES IS PRESUMED NATURAL


COMELEC BORN: There is a disputable presumption that things have
happened according to the ordinary course of nature and the
Petitioner is a foundling. Abandoned as new ordinary habits of life.113 All of the foregoing evidence, that a
born infant in the Parish Church of Jaro, he
was found by a certain Edgardo Militar.
person with typical Filipino features is abandoned in Catholic
Church in a municipality where the population of the Philippines
Edgardo Militar passed the care and custody is overwhelmingly Filipinos such that there would be more than a
of the petitioner to his relatives, Emilano and
his wife.
99% chance that a child born in the province would be a Filipino,
would indicate more than ample probability if not statistical
When POE reached the age of 5, spouses certainty, that petitioner's parents are Filipinos.
Susan and FPJ successfully adopted her. At
18, she registered as a voter.
BURDEN OF PROOF LIES WITH A PERSON WHO ASSAILS
She finished her college education in Boston CITIZENSHIP: The burden of proof was on private respondents to
Colleges with a degree in Pol Sci. In 1991, she
show that petitioner is not a Filipino citizen. Her admission that
married Llamanzares and migrated to the US.
she is a foundling did not shift the burden to her because such
In 2001 petitioner was naturalized as an status did not exclude the possibility that her parents were
American Citizen. In April 2004, she returned
Filipinos, especially as in this case where there is a high
in the Philippines to support FPJ’s candidacy
for President. probability, if not certainty, that her parents are Filipinos.

In December 2004 she rushed back to RP due PHRASE “HAVING TO PERFORM AN ACT REFERS TO AN ACT
to his father’s deteriorating condition. FPJ
died. Because of this blow, she and PERSONALLY DONE BY THE CITIZEN: It has been argued that the
Llamanzares decided to move and reside process to determine that the child is a foundling leading to the
permanently in the Philippines. issuance of a foundling certificate under these laws and the
24 May 2005, she came home to the issuance of said certificate are acts to acquire or perfect Philippine
Philippines: citizenship which make the foundling a naturalized Filipino at best.
1. she secured her TIN. This is erroneous. Under Article IV, Section 2 "Natural-born
2. they purchased the condominium unit
3. they enrolled their children in PH Private citizens are those who are citizens of the Philippines from birth
schools. without having to perform any act to acquire or perfect their
Philippine citizenship."
7 July 2006, Petitioner took her oath of
allegiance to RP pursuant to RA 9225 and
filed with BI a petitioner to reacquire 1. In the first place, "having to perform an act" means that the
Philippines citizenship. act must be personally done by the citizen. In this instance, the
October 2010, she was appointed as determination of foundling status is done not by the child but by
Chairman of the MTRCB. July 2012 she took the authorities.121
an Oath of Renunciation of Nationality of the
US. The Certificate of Loss of Nationality was
issued December 2012. 2. Secondly, the object of the process is the determination of the
whereabouts of the parents, not the citizenship of the child.
2 Oct 2012, petitioner filed with COMELEC
her COC for Senator wherein she declared 6
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

years and 6 months as residency prior to the 3. Lastly, the process is certainly not analogous to naturalization
2013 Election.
15 Oct 2015, she filed her COC for Presidency. proceedings to acquire Philippine citizenship, or the election of
In her COC she declared that she is a natural such citizenship by one born of an alien father and a Filipino
born citizen of the Philippines and a resident mother under the 1935 Constitution, which is an act to perfect it.
of 10 years and 11 months counted from 24
May 2005. This triggered the petitions to
have her COC cancelled and denied due REPATRIATION RESULTS IN THE RECOVERY OF ORIGINAL
course (CDDC). NATIONALITY (BENGSON III v. HRET): repatriation results in the
Arguments:
recovery of the original nationality. This means that a naturalized
Filipino who lost his citizenship will be restored to his prior status
On Natural Born Citizenship: as a naturalized Filipino citizen. On the other hand, if he was
1. A foundling cannot be considered as a
NBFC.
originally a natural-born citizen before he lost his Philippine
2. Assuming she was a NBFC, she lost such citizenship, he will be restored to his former status as a natural-
status when she was naturalized as US born Filipino.
Citizen. NBFC should be continuous from
birth.
3. The burden of proving NBFC lies with “FROM BIRTH” MEANS “AT THE TIME OF BIRTH” the phrase
petitioner. "from birth" was clarified to mean at the time of birth: "A person
4. Assuming she is qualified to reacquire FC,
she did not reacquire the natural born status.
who at the time of his birth, is a citizen of a particular country, is
a natural-born citizen thereof." Neither is "repatriation" an act to
On Residency Requirement: "acquire or perfect" one's citizenship
1. Poe is bound by her declaration in her 2013
COC declaration.
2. Residency fulfillment should be reckoned UNDER THE CONSTITUTION, THERE ARE ONLY TWO TYPES OF
from the date she reacquired her CITIZENSHIP: It is apparent from the enumeration of who are
citizenship—July 2006.
citizens under the present Constitution that there are only two
classes of citizens: (1) those who are natural-born and (2) those
who are naturalized in accordance with law. A citizen who is not
a naturalized Filipino, ie., did not have to undergo the process of
naturalization to obtain Philippine citizenship, necessarily is a
natural-born Filipino. Noteworthy is the absence in said
enumeration of a separate category for persons who, after losing
Philippine citizenship, subsequently reacquire it. The reason
therefor is clear: as to such persons, they would either be natural-
born or naturalized depending on the reasons for the loss of their
citizenship and the mode prescribed by the applicable law for the
reacquisition thereof.

RESIDENCY | THREE REQUISITES TO ACQUIRE NEW DOMICILE:


There are three requisites to acquire a new domicile:

1. Residence or bodily presence in a new locality;


2. an intention to remain there; and
3. an intention to abandon the old domicile. 152
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

To successfully effect a change of domicile, one must


demonstrate an actual removal or an actual change of domicile;
a bona fide intention of abandoning the former place of residence
and establishing a new one and definite acts which correspond
with the purpose. 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.

FACT NOT STATEMENT OF RESIDENCE IS CONCLUSIVE: There is


precedent after all where a candidate's mistake as to period of
residence made in a COC was overcome by
evidence. In Romualdez-Marcos v. COMELEC,167 the candidate
mistakenly put seven (7) months as her period of residence where
the required period was a minimum of one year. We said that "[i]t
is the fact of residence, not a statement in a certificate of
candidacy which ought to be decisive in determining whether or
not an individual has satisfied the constitutions residency
qualification requirement."

MAQUILING v. COMELEC The use of foreign passport after renouncing one’s foreign
citizenship is a positive and voluntary act of representation as to
Maquiling is a candidate for Mayor of one’s nationality and citizenship; it does not divest Filipino
Kauswagan against Arnado and Balua.
Maquiling and Balua lost the election while citizenship regained by repatriation but it recants the Oath of
Arnando won. Renunciation required to qualify one to run for an elective
position.
The winner, Arnado is a NBFC. He was
naturalized in the US and lost his FC.
Thereafter, he applied for repatriation and When Arnado used his US passport on 14 April 2009, or just eleven
took the Oath of Allegiance on 10 July 2008. days after he renounced his American citizenship, he recanted his
3 April 2009, he took hs Oath of Allegiance Oath of Renunciation36 that he "absolutely and perpetually
and executed an Affidavit of Renunciation. renounce(s) all allegiance and fidelity to the UNITED STATES OF
AMERICA"37 and that he "divest(s) himself of full employment of
30 Nov 2009, he filed his COC. In turn, Balua
filed a petition to disqualify Arnando on the all civil and political rights and privileges of the United States of
ground that he is neither a citizen and a America."38
resident. To prove his allegation, Balua
offered as evidence travel records indicating
Arnando’s use of his US Passport in April and We agree with the COMELEC En Banc that such act of using a
July 2009. foreign passport does not divest Arnado of his Filipino
citizenship, which he acquired by repatriation. However, by
COMELED 1D ruled in favor of the petitioner
and ordered that the Rule on Succession be representing himself as an American citizen, Arnado voluntarily
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

applied. COMELEC EB reversed the decision and effectively reverted to his earlier status as a dual citizen. Such
and ruled that the use of passport does not
operate back to revert to dual allegiance. reversion was not retroactive; it took place the instant Arnado
represented himself as an American citizen by using his US
Synthesis: passport.
1. He was a NBFC.
2. He was naturalized in the US.
3. He repatriated back. As a result, he became RENUNCIATION REQUIREMENT IN DUAL CITIZENS BY BIRTH VIS
a DUAL CITIZEN. A VIS BY NATURALIZATION: category of dual citizenship is that by
4. He took an oath of renunciation of US
citizenship. As a result, he became a FILIPINO
which foreign citizenship is acquired through a positive act of
CITIZEN. applying for naturalization. This is distinct from those considered
5. 11 days after, he used his US passport. This dual citizens by virtue of birth, who are not required by law to
is in contravention of his OATH OF
RENUNCIATION. As a result, he reverted back
take the oath of renunciation as the mere filing of the certificate
to DUAL CITIZEN status. of candidacy already carries with it an implied renunciation of
foreign citizenship.39 Dual citizens by naturalization, on the other
hand, are required to take not only the Oath of Allegiance to the
Republic of the Philippines but also to personally renounce
foreign citizenship in order to qualify as a candidate for public
office.

QUALIFICATIONS FOR PUBLIC OFFICE, CONTINUING


REQUIREMENTS: Qualifications for public office are continuing
requirements and must be possessed not only at the time of
appointment or election or assumption of office but during the
officer's entire tenure. Once any of the required qualifications is
lost, his title may be seasonably challenged.

ARNADO v. COMELEC REQUISITES TO RUN FOR PUBLIC OFFICE OF A FILIPINO WHO


REACQUIRED CITIZENSHIP UNDER RA 9225: Natural Born Citizens
The same factual backdrop as that stated in who have lost and subsequently reacquired their citizenship
Maquiling v. COMELEC issued 16 April 2013.
Thereafter, he executed an affidavit affirming pursuant to RA 9225 may now run for public office provided they:
his 2009 Oath of Renunciation.
(1) meet the qualifications for holding such public office, and;
He ran for Mayor in the 2013 Election.
Capitan, his opponent filed a petition to
disqualify him from running pursuant to (2) make a personal and sword renunciation of all foreign
Maquiling. He won the election. citizenship before any public officer authorized to administer oath
SC: He should have executed a new Oath of prior to or at the time of filing their COC.
Renunciation. Absent such, he failed to fulfill
the second requirement of RA 9225. POPULAR VOTE DOES NOT CURE THE INELIGIBILTY OF A
CANDIDATE: election victory cannot be used a magic formula to
bypass election eligibility requirement, otherwise, the law will
become toothless.
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

CABALLERO v. COMELEC RA 9225 TREATS CITIZENSHIP INDEPENDENTLY OF RESIDENCE: A


dual citizen may establish residence either in the Philippines or in
Caballero was a NBFC. He became a the foreign country of which he is also a citizen. However, when a
naturalized Canadian citizen. He intended to
run for Mayor in the 2013 Election. Because NBFC seeks for an elective public office, residency in the
of this he applied for repatriation and Philippines becomes material.
subsequently took an Oath of Renunciation in
September and October 2012.
RESIDENCE IN ELECTION LAW MEANS DOMICILE OF LEGAL
His opponent, Nanud filed a petition to have RESIDENCE: Legal residence is the place where a party actually or
his COC CDDC on the ground that he did not constructively has his permanent home, where he, no matter
comply with the residency requirement.
where he may be found at any given time, eventually intends to
Caballero argued that he did not lose his return and remain. A domicile of origin is acquired by every person
domicile of origin and that his 9 months of at birth. It is the place where the child’s parents reside and
stay is substantial compliance already.
continues until the same is abandoned by acquisition of a new
domicile, domicile of choice.

NATURALIZATION IN A FOREIGN COUNTRY MAY RESULT IN


ABANDONMENT OF DOMICILE IN THE PHILIPPINES.

REACQUISITION OF CITIZENSHIP DID NOT IPSO FACTO MAKE


HIM REGAIN HIS RESIDENCE. He must still prove that after
becoming a Philippine citizen he had reestablished his residence
in his locality as his new domicile of choice.

FRIVALDO v. COMELEC LAW DOES NOT SPECIFY A DATE FROM WHICH CITIZENSHIP IS TO
BE RECKONED WITH: It will be noted that the law does not specify
Frivaldo ran and won with a margin of 20,000 any particular date or time when the candidate must possess
against his closest opponent Lee in the
Gubernatorial election. Prior to this, Lee filed citizenship, unlike that for residence (which must consist of at
a petition praying Frivaldo’s disqualification least one year's residency immediately preceding the day of
for he is not yet a Filipino citizen. election) and age (at least twenty three years of age on election
SC: Frivaldo re-assumed his citizenship on day)
June 30, 1995 -- the very day 32 the term of
office of governor (and other elective PURPOSE OF CITIZENSHIP REQUIREMENT: Philippine citizenship
officials) began -- he was therefore already
is an indispensable requirement for holding an elective public
qualified to be proclaimed, to hold such
office and to discharge the functions and office, 31 and the purpose of the citizenship qualification is none
responsibilities thereof as of said date. In other than to ensure that no alien, i.e., no person owing allegiance
short, at that time, he was already qualified
to another nation, shall govern our people and our country or a
to govern his native Sorsogon.
unit of territory thereof

LIBERAL AND LITERAL INTERPRETATION CONCLUDES THAT


CITIZENSHIP MUST ONLY BE POSSESSED AT THE TIME OF
ASSUMPTION OF OFFICE: This is the liberal interpretation that
should give spirit, life and meaning to our law on qualifications
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

consistent with the purpose for which such law was enacted. So
too, even from a literal (as distinguished from liberal)
construction, it should be noted that Section 39 of the Local
Government Code speaks of "Qualifications" of "ELECTIVE
OFFICIALS", not of candidates. iterally, such qualifications --
unless otherwise expressly conditioned, as in the case of age and
residence -- should thus be possessed when the "elective [or
elected] official" begins to govern, i.e., at the time he is
proclaimed and at the start of his term -- in this case, on June 30,
1995

PD 725 IS RETROACTIVE: While it is true that the law was already


in effect at the time that Frivaldo became an American citizen,
nevertheless, it is not only the law itself (P.D. 725) which is to be
given retroactive effect The reason for this is simply that if, as in
this case, it was the intent of the legislative authority that the law
should apply to past events in order to benefit the greatest
number of former Filipinos possible thereby enabling them to
enjoy and exercise the constitutionally guaranteed right of
citizenship, and such legislative intention is to be given the fullest
effect and expression, then there is all the more reason to have
the law apply in a retroactive or retrospective manner to
situations, events and transactions subsequent to the passage of
such law. That is, the repatriation granted to Frivaldo on June 30,
1995 can and should be made to take effect as of date of his
application.

MERCADO v. MANZANO DUAL CITIZENSHIP DIFFERENT FROM DUAL ALLEGIANCE: dual


citizenship is different from dual allegiance. DUAL CITIZENSHIP
arises when, as a result of the concurrent application of the
different laws of two or more states, a person is simultaneously
considered a national by the said states. 9 For instance, such a
situation may arise when a person whose parents are citizens of a
state which adheres to the principle of jus sanguinis is born in a
state which follows the doctrine.

DUAL ALLEGIANCE, on the other hand, refers to the situation in


which a person simultaneously owes, by some positive act, loyalty
to two or more states. While dual citizenship is involuntary, dual
allegiance is the result of an individual's volition. of jus soli. Such
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

a person, ipso facto and without any voluntary act on his part, is
concurrently considered a citizen of both states.

WHAT IS PROSCRIBED IS DUAL ALLEGIANCE: the phrase "dual


citizenship" in R.A. No. 7160, §40(d) and in R.A. No. 7854, §20
must be understood as referring to "dual allegiance."
Consequently, persons with mere dual citizenship do not fall
under this disqualification. Unlike those with dual allegiance, who
must, therefore, be subject to strict process with respect to the
termination of their status, for candidates with dual citizenship, it
should suffice if, upon the filing of their certificates of candidacy,
they elect Philippine citizenship to terminate their status as
persons with dual citizenship considering that their condition is
the unavoidable consequence of conflicting laws of different
states.

filing of such certificate of candidacy sufficed to renounce his


American citizenship, effectively removing any disqualification
he might have as a dual citizen.

VILLABER v. COMELEC MORAL TURPITUDE: "moral turpitude," we have consistently


adopted the definition in Black's Law Dictionary as "an act of
Villaber and respondent Cagas were rival baseness, vileness, or depravity in the private duties which a man
candidates for a congressional seat. owes his fellow men, or to society in general, contrary to the
Cagas filed a petition to disqualify Villaber on
accepted and customary rule of right and duty between man and
the ground of its previous conviction of BP woman, or conduct contrary to justice, honesty, modesty, or good
22. morals."
Villaber contends that violation of BP 22 does
not involve moral turpitude. VIOLATION OF BP 22 INVOLVES MORAL TURPITUDE: The
presence of the second element (The accused knows at the time
of the issuance that he or she does not have sufficient funds in,
or credit with, the drawee bank for the payment of the check in
full upon its presentment) manifests moral turpitude. In People
vs. Atty. Fe Tuanda20 we held that a conviction for violation of B.P.
BIg. 22 "imports deceit" and "certainly relates to and affects the
good moral character of a person.…
LONZANIDA v. COMELEC AN ORDER TO VACATE DOES NOT CONSTITUTE A FULL TERM: the
petitioner cannot be deemed to have served the May 1995 to
1989- Lonzanida ran and won as municipal 1998 term because he was ordered to vacate his post before the
mayor of San Antonio. expiration of the term. The respondents' contention that the
1992- Lonzanida won again.
1995- Lonzanida won. It was followed by a
petitioner should be deemed to have served one full term from
petition of Alvez, an opponent. RTC declared May 1995-1998 because he served the greater portion of that
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

a failure of election. Decision was appealed term has no legal basis to support it; it disregards the second
to COMELEC.
requisite for the application of the disqualification, i.e., that he
COMELEC declared Alvez the real winner by has fully served three consecutive terms. The second sentence of
plurality of votes. (Feb 1998) the constitutional provision under scrutiny states, "Voluntary
1998- Lonzanida filed his COC for the same renunciation of office for any length of time shall not be
position. Opponent, Muli filed a petition to considered as an interruption in the continuity of service for the
disqualify him on the ground of the 3 TLR. full term for which he was elected. "The clear intent of the framers
COMELEC decided against Lonzanida and of the constitution to bar any attempt to circumvent the three-
counted his purported 3rd term as fully term limit by a voluntary renunciation of office and at the same
served. time respect the people's choice and grant their elected official
full service of a term is evident in this provision. Voluntary
renunciation of a term does not cancel the renounced term in the
computation of the three term limit; conversely, involuntary
severance from office for any length of time short of the full term
provided by law amounts to an interruption of continuity of
service. The petitioner vacated his post a few months before the
next mayoral elections, not by voluntary renunciation but in
compliance with the legal process of writ of execution issued by
the COMELEC to that effect. Such involuntary severance from
office is an interruption of continuity of service and thus, the
petitioner did not fully serve the 1995-1998 mayoral term.

In sum, the petitioner was not the duly elected mayor and that
he did not hold office for the full term; hence, his assumption of
office from 1995 to March 1998 cannot be counted as a term for
purposes of computing the three term limit.

ABUNDO v. COMELEC The period during which Abundo was not serving as mayor
because of a prior declaration in favor of his opponent, should be
2001- Abundo elected Mayor considered as a BREAK IN HIS SERVICE.
2004- Abundo’s opponent initially was
declared the winner. In 2006, Abundo was
declared the real winner.
2007- Abundo elected again
2010- Filed COC for Mayor again.

RULING: The time when Abundo was not


serving as Mayor because of a wrong
proclamation is considered as a valid
interruption. Thus, the 3-term limit rule is not
violatesd.
MARQUEZ v. COMELEC FUGITIVE FROM JUSTICE INCLUDES FUGITIVE FROM
PROSECUTION: "fugitive from justice" includes not only those
who flee after conviction to avoid punishment but likewise those
who, after being charged flee to avoid prosecution. This definition
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

truly finds support from jurisprudence . The Court believes and


thus holds, albeit with some personal reservations of
the ponente (expressed during the Court's en banc deliberations),
that Article 73 of the Rules and Regulations Implementing the
Local Government Code of 1991, to the extent that it confines the
term "fugitive from justice" to refer only to a person (the fugitive)
"who has been convicted by final judgment." is an inordinate and
undue circumscription of the law.

DELA CRUZ v. COMELEC VOTES FOR DISQUALIFIED NUISANCE CANDIDATES MUST BE


COUNTED IN FAVOR OF THE LEGITIMATE CANDIDATE WITH THE
Casimira Dela Cruz filed a COC for the SAME SURNAME EVEN IN CASE OF AUTOMATED ELECTION: We
position of Vice Mayor. She filed a petition to
declare Aurelio Dela Cruz a nuisance hold that the rule in Resolution No. 4116 considering the votes
candidate. COMELEC 1D declared Aurelio as cast for a nuisance candidate declared as such in a final judgment,
a nuisance candidate. However, his name particularly where such nuisance candidate has the same
was not deleted in the list of candidates.
Subsequently, COMELEC issued Reso No. surname as that of the legitimate candidate, not stray but
8844 which ordered that votes casted in counted in favor of the latter, remains a good law.
favor of disqualified candidates be
considered stray.
As we pronounced in Bautista, the voters’ constructive
During the canvassing, the votes cast in favor knowledge of such cancelled candidacy made their will more
of Aurelio were considered stray, contrary to determinable, as it is then more logical to conclude that the votes
the demands of petitioner that they be
counter in her favor instead. The canvassing cast for Aurelio could have been intended only for the legitimate
resulted to a 39 margin in favor of PACETE, candidate, petitioner.
another contender (with almost 532 declared
stray since they were for Aurelio).
The possibility of confusion in names of candidates if the names
Petitioner contends that RESO 8844 violates of nuisance candidates remained on the ballots on election day,
her right to equal protection of the laws since cannot be discounted or eliminated, even under the automated
there is no substantial difference between
the manual and automated elections. She voting system especially considering that voters who mistakenly
contends that similar to the rule during shaded the oval beside the name of the nuisance candidate
manual elections, votes cast in favor of a instead of the bona fide candidate they intended to vote for could
nuisance candidate must be counter in her
favor. no longer ask for replacement ballots to correct the
same.1âwphi1
RISOS- VIDAL v. COMELEC ABSOLUTE PARDON RESTORES A CONVICT’S CIVIL AND
POLITICAL RIGHTS: Former President Estrada was granted an
Estrada was convicted of Plunder by absolute pardon that fully restored all his civil and political rights,
Sandiganbayan. He was punished with
reclusion perpetua and perpetual absolute which naturally includes the right to seek public elective office,
disqualification. Thereafter, he was granted the focal point of this controversy. The wording of the pardon
an executive clemency by PGMA: extended to former President Estrada is complete, unambiguous,
“WHEREAS, Joseph Ejercito Estrada has publicly and unqualified. It is likewise unfettered by Articles 36 and 41 of
committed to no longer seek any elective position or
office,”
the Revised Penal Code.
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

He ran for the 2010 Presidential election A close scrutiny of the text of the pardon extended to former
where he placed second. Subsequently he
filed his COC for the Mayor of Manila. This President Estrada shows that both the principal penalty of
prompted petitioner to file a petition for reclusion perpetua and its accessory penalties are included in the
disqualification with COMELEC. The pardon. The first sentence refers to the executive clemency
COMELEC 2D and EB dismissed the petition
and MR respectively. extended to former President Estrada who was convicted by the
Sandiganbayan of plunder and imposed a penalty of reclusion
Petitioner contends that the pardon granted perpetua. The latter is the principal penalty pardoned which
to Estrada was conditioned on the
relieved him of imprisonment. The sentence that followed, which
states that "(h)e is hereby restored to his civil and political rights,"
expressly remitted the accessory penalties that attached to the
principal penalty of reclusion perpetua. Hence, even if we apply
Articles 36 and 41 of the Revised Penal Code, it is indubitable from
the textof the pardon that the accessory penalties of civil
interdiction and perpetual absolute disqualification were
expressly remitted together with the principal penalty of
reclusion perpetua.
ARATEA v. COMELEC The conviction of Lonzanida by final judgment, with the penalty
of prisión mayor, disqualifies him perpetually from holding any
public office, or from being elected to any public office. This
perpetual disqualification took effect upon the finality of the
judgment of conviction, before Lonzanida filed his certificate of
candidacy.

The penalty of prisión mayor automatically carries with it, by


operation of law,24 the accessory penalties of temporary absolute
disqualification and perpetual special disqualification. Under
Article 30 of the Revised Penal Code, temporary absolute
disqualification produces the effect of "deprivation of the right to
vote in any election for any popular elective office or to be elected
to such office.” A person suffering from these ineligibilities is
ineligible to run for elective public office, and commits a false
material representation if he states in his certificate of
candidacy that he is eligible to so run.

D. JALOSLOS v. COMELEC PERPETUAL SPECIAL DISQUALIFICATION DEPRIVES THE PERSON


TO HOLD PUBLIC OFFICE PERPETUALLY: Clearly, Lacuna instructs
D. Jaloslos was convicted by final judgment that the accessory penalty of perpetual special disqualification
for the crime of robbery and sentence to PM "deprives the convict of the right to vote or to be elected to or
with an accessory penalty of Temporary
Absolute Disqualification and Perpetual hold public office perpetually."
Special Disqualification.
The penalty of prisión mayor automatically carries with it, by
operation of law,15 the accessory penalties of temporary absolute
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

disqualification and perpetual special disqualification. Under


Article 30 of the Revised Penal Code, temporary absolute
disqualification produces the effect of "deprivation of the right to
vote in any election for any popular elective office or to be elected
to such office." The duration of the temporary absolute
disqualification is the same as that of the principal penalty. On the
other hand, under Article 32 of the Revised Penal Code perpetual
special disqualification means that "the offender shall not be
permitted to hold any public office during the period of his
disqualification," which is perpetually. Both temporary absolute
disqualification and perpetual special disqualification constitute
ineligibilities to hold elective public office. A person suffering
from these ineligibilities is ineligible to run for elective public
office, and commits a false material representation if he states
in his certificate of candidacy that he is eligible to so run.

QUINTO v. COMELEC CLASSIFICATION IS UNCONSTITIONAL BECAUSE IT IS NOT


(Nachura) GERMANE TO THE PURPOSE OF THE LAW. Glaringly absent is the
requisite that the classification must be germane to the purposes
Petitioner assails the constitutionality of Sec. of the law. Indeed, whether one holds an appointive office or an
13, RA 9369 which amended the Automated
Election Law and Reso 8679 implementing
elective one, the evils sought to be prevented by the measure
the aforementioned section. remain.
RA 9369 Sec. 13:
For example, the Executive Secretary, or any Member of the
“Provided, finally, That any person holding a public
appointive office or position, including active members of
Cabinet for that matter, could wield the same influence as the
the armed forces, and officers and employees in Vice-President who at the same time is appointed to a Cabinet
government-owned or -controlled corporations, shall be
considered ipso facto resigned from his/her office and post (in the recent past, elected Vice-Presidents were appointed
must vacate the same at the start of the day of the filing
of his/her certificate of candidacy.”
to take charge of national housing, social welfare development,
interior and local government, and foreign affairs). With the fact
Reso 8679: that they both head executive offices, there is no valid
SEC. 4. Effects of Filing Certificates of Candidacy.- a) Any
justification to treat them differently when both file their CoCs for
person holding a public appointive office or position the elections. Under the present state of our law, the Vice-
including active members of the Armed Forces of the
Philippines, and other officers and employees in President, in the example, running this time, let us say, for
government-owned or controlled corporations, shall be
considered ipso facto resigned from his office upon the
President, retains his position during the entire election period
filing of his certificate of candidacy. and can still use the resources of his office to support his
campaign.
b) Any person holding an elective office or position shall
not be considered resigned upon the filing of his certificate
of candidacy for the same or any other elective office or
position. LAW IS OVERBROAD: First, the provision pertains to all civil
servants holding appointive posts without distinction as to
whether they occupy high positions in government or not.
Certainly, a utility worker in the government will also be
considered as ipso facto resigned once he files his CoC for the
2010 elections. This scenario is absurd for, indeed, it is
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

unimaginable how he can use his position in the government to


wield influence in the political world.

Second, the provision is directed to the activity of seeking any and


all public offices, whether they be partisan or nonpartisan in
character, whether they be in the national, municipal or barangay
level. Congress has not shown a compelling state interest to
restrict the fundamental right involved on such a sweeping scale.

QUINTO v. COMELEC (Puno) CLASSIFICATION IS GERMANE TO THE PURPOSE OF THE LAW: An


election is the embodiment of the popular will, perhaps the
purest expression of the sovereign power of the people. 49 It
involves the choice or selection of candidates to public office by
popular vote.50 Considering that elected officials are put in office
by their constituents for a definite term, it may justifiably be said
that they were excluded from the ambit of the deemed resigned
provisions in utmost respect for the mandate of the sovereign
will. In other words, complete deference is accorded to the will of
the electorate that they be served by such officials until the end
of the term for which they were elected. In contrast, there is no
such expectation insofar as appointed officials are concerned.

The dichotomized treatment of appointive and elective officials is


therefore germane to the purposes of the law. For the law was
made not merely to preserve the integrity, efficiency, and
discipline of the public service; the Legislature, whose wisdom is
outside the rubric of judicial scrutiny, also thought it wise to
balance this with the competing, yet equally compelling, interest
of deferring to the sovereign will.

MENDOZA v. COMELEC

SOCRATES v. COMELEC INTERRUPTION NEED NOT BE A FULL TERM. The Constitution


does not require the interruption or hiatus to be a full term of
1992- Hagedorn elected mayor.
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

1995- Hagedorn elected mayor. three years. The clear intent is that interruption "for any length of
1998- Hagedorn elected mayor. Since this
was his 3rd term, he did not run during the time," as long as the cause is involuntary, is sufficient to break an
2001 election. elective local official's continuity of service.
2001- Socrates was elected mayor.
2002- Recall election were conducted.
Hagedorn submitted his COC.

RULING: The intervening period between the


time Hagedorn’s term ended until he won a
Recall Election against Socrates is an
interruption of a term that bars the three
term limit rule from operating. The
interruption need not last for a full term, it
requires any length of time, provided, the
interruption refers to the term of office or the
right to hold the title.
PAMATONG v. COMELEC RATIONALE FOR PROHIBITING NUISANCE CANDIDATES: The
State has a compelling interest to ensure that its electoral
PAMATONG filed his COC for President for exercises are rational, objective, and orderly. Towards this end,
the 2004 National Election. COMELEC refused
to give due course to his COC. He moved for the State takes into account the practical considerations in
reconsideration. The same was denied on the conducting elections. Inevitably, the greater the number of
ground that he cannot wage a nationwide candidates, the greater the opportunities for logistical confusion,
campaign and/or not supported by political
party. not to mention the increased allocation of time and resources in
preparation for the election. These practical difficulties should, of
Petitioner filed a petition for certiorari with course, never exempt the State from the conduct of a mandated
SC. He contends that the assailed ruling
violates his right to equal access to electoral exercise. At the same time, remedial actions should be
opportunities for public service under Sec. available to alleviate these logistical hardships, whenever
26, Art. II of the PC. necessary and proper. Ultimately, a disorderly election is not
SC: Case must be remanded for factual merely a textbook example of inefficiency, but a rot that erodes
aspect. faith in our democratic institutions.

TIMBOL v. COMELEC COMELEC CANNOT MOTO PROPRIO DENY DUE COURSE AN


ALLEGED NUISANCE CANDIDATE’S COC: The power of the
TIMBOL filed a COC for the Member of Commission on Elections (COMELEC) to restrict a citizen's right of
Sangguniang Panlungsod. He was invited for
a clarificatory hearing where he argued that suffrage should not be arbitrarily exercised. The COMELEC cannot
he was not a nuisance candidate, that he motu proprio deny due course to or cancel an alleged nuisance
ranked 8th during the last election and, that candidate’s certificate of candidacy without providing the
he had sufficient resources to sustain his
campaign. candidate his opportunity to be heard.

Despite a favorable recommendation from IT IS A GRAVE ABUSE OF DISCRETION FOR COMELEC TO CANCEL
the clarificatory hearing, his name was not
removed from the list of nuisance COC WITHOUT AFFORING A CANDIDATE AN OPPORTUNITY TO
candidates. He filed a petition with COMELEC BE HEARD: The determination whether a candidate is eligible for
praying that his name be removed. the position he is seeking involves a determination of fact where
His petition was denied on the ground that it both parties must be allowed to adduce evidence in support of
was already moot since the ballots are their contentions. It should be stressed that it is not sufficient, as
already being printed. the COMELEC claims, that the candidate be notified of the
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

SC: petition is denied for being moot, caveat, Commission’s inquiry into the veracity of the contents of his
see doctrines.
certificate of candidacy, but he must also be allowed to present
his own evidence to prove that he possesses the qualifications for
the office he seeks.46 Respondent commits grave abuse of
discretion if it denies due course to or cancels a certificate of
candidacy without affording the candidate an opportunity to be
heard.

RULLODA v. COMELEC SUBSTITUTION IS NOT PROHIBITED IN BARANGGAY


ELECTION: the absence of a specific provision governing
Romeo Rulloda and Remegio Placido were substitution of candidates in barangay elections cannot be inferred as
contenders for the Baranggay Chairman. a prohibition against said substitution. Such a restrictive construction
Romeo however passed away due to heart cannot be read into the law where the same is not written. Indeed,
attack. Petitioner wrote a letter to COMELEC there is more reason to allow the substitution of candidates where no
seeking permission to run as candidate in lieu political parties are involved than when political considerations or
of her husband. party affiliations reign, a fact that must have been subsumed by law.
Petitioner garnered a higher vote than
Placido. However, pursuant to the directive
of the Election Officer, Placido was still
proclaimed as Chairman.

The COMELEC also issued a resolution


denying the substitution citing Reso 4801
whicl provides that no substitution for
barangay candidates shall be allowed.

Respondent contends that since Baranggay


Election is non partisan, no substitution may
be allowed.

FEDERICO v. COMELEC COMELEC MAY SET DEADLINES FOR PRE-ELECTION


PROCEEDING: Under the law, "the Comelec, which has the
Running for mayor are Edna Sanchez vs constitutional mandate to enforce and administer all laws and
Osmundo Maligaya. On the other hand, regulations relative to the conduct of an election," 34 has been
running Edna’s husband was running for empowered to set the dates for certain pre-election proceedings. In
governor. Prior to the election, Edna’s the exercise of such constitutional and legislated power, especially to
husband died. She immediately filed her new safeguard and improve on the Automated Election System (AES),
COC as a substitute candidate for her Comelec came out with Resolution No. 8678.
deceased husband.

On the other hand, on May 5, 2010, Federico DIFFERENT DEADLINES FOR SUBSTITUTION BASED ON
filed his COC as a substitute for Edna. DIFFERENT GROUNDS ARE VALID: Different deadlines were set
Maligaya filed a petition to DDC the COC of to govern the specific circumstances that would necessitate the
Federico on the ground that the period to file substitution of a candidate due to death, disqualification or
COC for substitute candidates already lapsed withdrawal. In case of death or disqualification, the substitute had
after 14 Dec 2009. until midday of the election day to file the COC. In case of withdrawal,
which is the situation at bench, the substitute should have filed a COC
Edna’s name was retained in the ballots. She by December 14, 2009.
won the election. Thereafter, the votes were
credited to Federico. Maligaya filed a petition
to annul the proclamation of Federico. The reason for the distinction can easily be divined. Unlike death or
COMELEC EB issued the assailed Reso which disqualification, withdrawal is voluntary. Generally, a candidate has
ordered that Maligaya be proclaimed Mayor. sufficient time to ponder on his candidacy and to withdraw while the
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

printing has not yet started. If a candidate withdraws after the printing,
the name of the substitute candidate can no longer be
accommodated in the ballot and a vote for the substitute will just be
wasted.

ENGLE v. COMELEC
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

VI. CAMPAIGN, ELECTION PROPAGANDA


1. CAMPAIGN: Public expressions or opinions or discussions
of probable issues in a forthcoming election
SEC. 79, (b) The term "election campaign" or on attributes of or criticisms against
or "partisan political activity" refers to an act probable candidates proposed to be
designed to promote the election or defeat nominated in a forthcoming political party
of a particular candidate or candidates to a convention shall not be construed as part of
public office which shall include: any election campaign or partisan political
activity contemplated under this Article.
(1) Forming organizations, associations,
clubs, committees or other groups of 2. LAWFUL ELECTION PROPAGANDA
persons for the purpose of soliciting votes
and/or undertaking any campaign for or Sec. 82. Lawful election propaganda. -
against a candidate; Lawful election propaganda shall include:

(2) Holding political caucuses, conferences, (a) Pamphlets, leaflets, cards, decals, stickers
meetings, rallies, parades, or other similar or other written or printed materials of a size
assemblies, for the purpose of soliciting not more than eight and one-half inches in
votes and/or undertaking any campaign or width and fourteen inches in length;
propaganda for or against a candidate;
(b) Handwritten or printed letters urging
(3) Making speeches, announcements or voters to vote for or against any particular
commentaries, or holding interviews for or candidate;
against the election of any candidate for
public office; (c) Cloth, paper or cardboard posters,
whether framed or posted, with an area
(4) Publishing or distributing campaign exceeding two feet by three feet, except
literature or materials designed to support that, at the site and on the occasion of a
or oppose the election of any candidate; or public meeting or rally, or in announcing the
(5) Directly or indirectly soliciting votes, holding of said meeting or rally, streamers
pledges or support for or against a not exceeding three feet by eight feet in size,
candidate. shall be allowed: Provided, That said
streamers may not be displayed except one
The foregoing enumerated acts if performed week before the date of the meeting or rally
for the purpose of enhancing the chances of and that it shall be removed within seventy-
aspirants for nomination for candidacy to a two hours after said meeting or rally; or
public office by a political party,
aggroupment, or coalition of parties shall (d) All other forms of election propaganda
not be considered as election campaign or not prohibited by this Code as the
partisan election activity. Commission may authorize after due notice
to all interested parties and hearing where
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

all the interested parties were given an equal projections except telecasts which may be
opportunity to be heard: Provided, That the allowed as hereinafter provided; and
Commission's authorization shall be
published in two newspapers of general (e) For any radio broadcasting or television
circulation throughout the nation for at least station to sell or give free of charge air time
twice within one week after the for campaign and other political purposes
authorization has been granted. except as authorized in this Code under the
rules and regulations promulgated by the
3. PROHIBITED ELECTION PROPAGANDA: Commission pursuant thereto.

Sec. 85. Prohibited forms of election Any prohibited election propaganda gadget
propaganda. - It shall be unlawful: or advertisement shall be stopped,
confiscated or torn down by the
(a) To print, publish, post or distribute any representative of the Commission upon
poster, pamphlet, circular, handbill, or specific authority of the Commission.
printed matter urging voters to vote for or
against any candidate unless they bear the
names and addresses of the printer and 4. PROHIBITED CONTRIBUTION:
payor as required in Section 84 hereof;
ARTICLE XI.
(b) To erect, put up, make use of, attach, ELECTORAL CONTRIBUTIONS AND
float or display any billboard, tinplate- EXPENDITURES
poster, balloons and the like, of whatever
size, shape, form or kind, advertising for or Sec. 94. Definitions. - As used in this Article:
against any candidate or political party; (a) The term "contribution" includes a gift,
donation, subscription, loan, advance or
(c) To purchase, manufacture, request, deposit of money or anything of value, or a
distribute or accept electoral propaganda contract, promise or agreement to
gadgets, such as pens, lighters, fans of contribute, whether or not legally
whatever nature, flashlights, athletic goods enforceable, made for the purpose of
or materials, wallets, shirts, hats, bandanas, influencing the results of the elections but
matches, cigarettes and the like, except that shall not include services rendered without
campaign supporters accompanying a compensation by individuals volunteering a
candidate shall be allowed to wear hats portion or all of their time in behalf of a
and/or shirts or T-shirts advertising a candidate or political party. It shall also
candidate; include the use of facilities voluntarily
donated by other persons, the money value
(d) To show or display publicly any of which can be assessed based on the rates
advertisement or propaganda for or against prevailing in the area.
any candidate by means of cinematography,
audio-visual units or other screen (b) The term "expenditure" includes the
payment or delivery of money of anything of
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

value, or a contract, promise or agreement or concessions by the government or any of


to make an expenditure, for the purpose of its divisions, subdivisions or
influencing the results of the election. It shall instrumentalities, including government-
also include the use of facilities personally owned or controlled corporations;
owned by the candidate, the money value of
the use of which can be assessed based on (e) Natural and juridical persons who, within
the rates prevailing in the area. one year prior to the date of the election,
have been granted loans or other
(c) The term "person" includes an individual, accommodations in excess of P100,000 by
partnership, committee, association, the government or any of its divisions,
corporation, and any other organization or subdivisions or instrumentalities including
group of persons. government-owned or controlled
corporations;
Sec. 95. Prohibited contributions. - No
contribution for purposes of partisan (f) Educational institutions which have
political activity shall be made directly or received grants of public funds amounting to
indirectly by any of the following: no less than P100,000.00;

(a) Public or private financial institutions: (g) Officials or employees in the Civil Service,
Provided, however, That nothing herein shall or members of the Armed Forces of the
prevent the making of any loan to a Philippines; and
candidate or political party by any such
public or private financial institutions legally (h) Foreigners and foreign corporations. It
in the business of lending money, and that shall be unlawful for any person to solicit or
the loan is made in accordance with laws and receive any contribution from any of the
regulations and in the ordinary course of persons or entities enumerated herein.
business;
Sec. 96. Soliciting or receiving contributions
(b) Natural and juridical persons operating a from foreign sources. - It shall be unlawful
public utility or in possession of or exploiting for any person, including a political party or
any natural resources of the nation; public or private entity to solicit or receive,
directly or indirectly, any aid or contribution
(c) Natural and juridical persons who hold of whatever form or nature from any foreign
contracts or sub-contracts to supply the national, government or entity for the
government or any of its divisions, purposes of influencing the results of the
subdivisions or instrumentalities, with goods election.
or services or to perform construction or
other works; Sec. 97. Prohibited raising of funds. - It shall
be unlawful for any person to hold dances,
(d) Natural and juridical persons who have lotteries, cockfights, games, boxing bouts,
been granted franchises, incentives, bingo, beauty contests, entertainments, or
exemptions, allocations or similar privileges cinematographic, theatrical or other
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

performances for the purpose of raising (b) For political parties. - Five pesos
funds for an election campaign or for the (P5.00) for every voter currently
support of any candidate from the registered in the constituency or
commencement of the election period up to constituencies where it has official
and including election day; or for any person candidates.
or organization, whether civic or religious,
directly or indirectly, to solicit and/or accept Any provision of law to the contrary
from any candidate for public office, or from notwithstanding any contribution in cash or
his campaign manager, agent or in kind to any candidate or political party or
representative, or any person acting in their coalition of parties for campaign purposes,
behalf, any gift, food, transportation, duly reported to the Commission shall not be
contribution or donation in cash or in kind subject to the payment of any gift tax.
from the commencement of the election
Section 14. Statement of Contributions and
period up to and including election day;
Expenditures: Effect of Failure to File
Provided, That normal and customary
Statement. - Every candidate and treasurer
religious stipends, tithes, or collections on
of the political party shall, within thirty (30)
Sundays and/or other designated collection
days after the day of the election, file in
days, are excluded from this prohibition.
duplicate with the offices of the Commission
the full, true and itemized statement of all
contributions and expenditures in
5. EXPENDITURES:
connection with the election.

RA 7166 No person elected to any public offices shall


enter upon the duties of his office until he
Section 13. Authorized Expenses of has filed the statement of contributions and
Candidates and Political Parties. - The expenditures herein required.
agreement amount that a candidate or
registered political party may spend for The same prohibition shall apply if the
election campaign shall be as follows: political party which nominated the winning
candidate fails to file the statement required
(a) For candidates. - Ten pesos herein within the period prescribed by this
(P10.00) for President and Vice- Act.
President; and for other candidates
Three Pesos (P3.00) for every voter Except candidates for elective barangay
currently registered in the office, failure to file the statements or
constituency where he filed his reports in connection with electoral
certificate of candidacy: Provided, contributions and expenditures are required
That a candidate without any herein shall constitute an administrative
political party and without support offense for which the offenders shall be
from any political party may be liable to pay an administrative fine ranging
allowed to spend Five Pesos (P5.00) from One thousand pesos (P1,000.00) to
for every such voter; and
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

Thirty thousand pesos (P30,000.00), in the candidates residing in his jurisdiction to


discretion of the Commission. comply with their obligation to file their
statements of contributions and
The fine shall be paid within thirty (30) days expenditures.
from receipt of notice of such failure;
otherwise, it shall be enforceable by a writ of For the commission of a second or
execution issued by the Commission against subsequent offense under this section, the
the properties of the offender. administrative fine shall be from Two
thousand pesos (P2,000.00) to Sixty
It shall be the duty of every city or municipal thousand pesos (P60,000.00), in the
election registrar to advise in writing, by discretion of the Commission. In addition,
personal delivery or registered mail, within the offender shall be subject to perpetual
five (5) days from the date of election all disqualification to hold public office.

CHAVEZ v. COMELEC ELECTION CAMPAIGN, DEFINED AND EXTENT: "election


campaign" or "partisan political activity" is defined as an act
Chavez entered into various agreements with designed to promote the election or defeat of a particular
3 persons/ corporations to endorse their
products. Pursuant to these agreements 3 candidate or candidates to a public office. Activities included
billboards were set up along North under this definition are:
Expressway and 1 billboard was set up along
Roxas Blvd.
(1) Forming organizations, associations, clubs,
Thereafter, Chavez filed his COC for Senator committees, or other groups of persons for the purpose of
for the 2004 National Elections. On January soliciting votes and/or undertaking any campaign for or
2014, COMELEC issued RESOLUTION 6520.
Under its Sec. 32, all propaganda materials against a candidate
showing the image or name of a person who
subsequent to their displays becomes a (2) Holding political caucuses, conferences, meetings,
candidate shall be removed by such
candidate immediately, otherwise he shall be rallies, parades, or other similar assemblies, for the
presumed to have conducted premature purpose of soliciting votes and/or undertaking any
campaign. campaign or propaganda for or against a candidate;
COMELEC ordered Chavez to comply with the
assailed order. Chavez replied by asking an (3) Making speeches, announcements or commentaries,
exception from its operation. COMELEC or holding interviews for or against the election of any
thereafter finally ordered their removal
prompting Chavez to file this petition for
candidate for public office;
prohibition.
(4) Publishing or distributing campaign literature or
Chavez contends:
1. The billboards are merely endorsement of
materials designed to support or oppose the election of
products and do not promote his candidacy. any candidate; or
SC: No, it is a mode of indirectly soliciting
support, hence deemed an election
campaign.
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO
(5) Directly or indirectly soliciting votes, pledges or support
2. Resolution is an ex post facto law, when it
punishes acts done prior to the effectivity of for or against a candidate
the prohibition. SC: No, it is not the putting up
of billboard that is being punished but rather When he filed his certificate of candidacy, the billboards featuring
the failure to remove.
his name and image assumed partisan political character because
the same indirectly promoted his candidacy. Therefore, the
COMELEC was acting well within its scope of powers when it
required petitioner to discontinue the display of the subject
billboards.

COMELECT IS EMPOWERED TO SUPERVISE AND REGULATE


ENJOYMENT OR UTILIZATION OF MEDIA: COMELEC is expressly
authorized to supervise or regulate the enjoyment or utilization
of all media communication or information to ensure equal
opportunity, time, and space. All these are aimed at the holding
of free, orderly, honest, peaceful, and credible elections.

Sec. 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, time,
and space, and the right to reply, including
reasonable, 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.

NO EX POST FACTO LAW: The offense, as expressly prescribed in


the assailed provision, is the non-removal of the described
propaganda materials three (3) days after the effectivity of
COMELEC Resolution No. 6520. If the candidate for public office
fails to remove such propaganda materials after the given period,
he shall be liable under Section 80 of the Omnibus Election Code
for premature campaigning. Indeed, nowhere is it indicated in the
assailed provision that it shall operate retroactively. There is,
therefore, no ex post facto law in this case.
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO
PENERA v. COMELEC True, that pursuant to Section 15 of Republic Act No. 8436, as
(CHICO- NAZARIO DECISION) amended, even after the filing of the COC but before the start of
the campaign period, a person is not yet officially considered a
Penera and Andanar were contenders in the candidate. Nevertheless, a person, upon the filing of his/her COC,
Mayoralty elections. Prior to the election,
Andanar filed a petition for disqualification
already explicitly declares his/her intention to run as a candidate
against Penera for premature campaigning. in the coming elections. The commission by such a person of any
of the acts enumerated under Section 79(b) of the Omnibus
Penera admitted that a motorcade indeed
took place, but contended that it was in
Election Code (i.e., holding rallies or parades, making speeches,
accordance with the usual practice during the etc.) can, thus, be logically and reasonably construed as for the
filing of COCs. purpose of promoting his/her intended candidacy.
Pending its resolution, Penera was
proclaimed as the winner and assumed When the campaign period starts and said person proceeds with
office. his/her candidacy, his/her intent turning into actuality, we can
already consider his/her acts, after the filing of his/her COC and
COMELED 2D disqualified Penera. Penera
filed an MR with EB. EB affirmed the division prior to the campaign period, as the promotion of his/her
ruling. election as a candidate, hence, constituting premature
campaigning, for which he/she may be disqualified. Also,
The dissenting opinion submits that under
the amended version of Sec. 15, RA 8436 conversely, if said person, for any reason, withdraws his/her COC
(Automated Election Act) a new definition of before the campaign period, then there is no point to view his/her
the term candidate makes it impossible for
acts prior to said period as acts for the promotion of his/her
premature campaigning to be committed.
Under the amended version, a person election as a candidate. In the latter case, there can be no
becomes a candidate not on the day of filing premature campaigning as there is no candidate, whose
the COC but at the start of the campaign.
disqualification may be sought, to begin with.
Thus, a premature campaign –seeking to
promote the election/ defeat of a candidate
cannot be made because there is no A PERSON CAN COMMIT PREMATURE CAMPAIGN EVEN
candidate to speak of. WITHOUT BEING A CANDIDATE YET, FILING OF COC
The ponente in resolving this case CONSTITUTES AN INTENT TO ENGAGE IN ELECTION CAMPAIGN:
harmonizes the express prohibition under A person, after filing his/her COC but prior to his/her becoming a
Sec. 80 of the OEC and the amended version candidate (thus, prior to the start of the campaign period), can
of RA 8436.
already commit the acts described under Section 79(b) of the
1. 8436 a9369 did not contain an express Omnibus Election Code as election campaign or partisan political
repeal. activity. However, only after said person officially becomes a
2. Absent an express repeal, only implied
repeal may only be the way to suit dissent’s candidate, at the beginning of the campaign period, can said acts
submission. be given effect as premature campaigning under Section 80 of the
3. Implied repeal is recognized only when Omnibus Election Code. Only after said person officially becomes
there is an incompatibility.
4. There is no incompatibility because the a candidate, at the start of the campaign period, can his/her
two laws can be harmonized. disqualification be sought for acts constituting premature
campaigning. Obviously, it is only at the start of the campaign
period, when the person officially becomes a candidate, that the
undue and iniquitous advantages of his/her prior acts,
constituting premature campaigning, shall accrue to his/her
benefit. Compared to the other candidates who are only about to
begin their election campaign, a candidate who had previously
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO
engaged in premature campaigning already enjoys an unfair
headstart in promoting his/her candidacy.

PENERA v. COMELEC ELEMENTS OF PREMATURE CAMPAIGNING: Thus, the essential


(CARPIO DECISION) elements for violation of Section 80 of the Omnibus Election Code
are:
Carpio adopted the Lanot Decision.
(1) a person engages in an election campaign or partisan political
1. WHEN IS CAMPAIGN PREMATURE UNDER
SEC. 80, OEC? activity;
-> 3 elements: election campaign,
promotion/ defeat of candidate, done (2) the act is designed to promote the election or defeat of a
outside campaign period.
particular candidate or candidates;
2. WHO IS A CANDIDATE?
-> Sec. 79: a candidate is one who has filed his (3) the act is done outside the campaign period.
COC.
-> RA 8436: he is considered a candidate only
when the election campaign starts.
CANDIDATE, DEFINED: A "‘candidate’ refers to any person
CONCLUSION: There can be no commission aspiring for or seeking an elective public office, who has filed a
of premature campaigning because outside
the period of campaign there is no candidate
certificate of candidacy by himself or through an accredited
to speak of. political party, aggroupment or coalition of parties." xxx "any
person who files his certificate of candidacy within [the filing]
period shall only be considered a candidate at the start of the
campaign period for which he filed his certificate of candidacy."

THERE CAN BE NO PREMATURE CAMPAIGN BECAUSE THERE IS


NO CANDIDATE TO SPEAK OF: Any person may thus file a
certificate of candidacy on any day within the prescribed period
for filing a certificate of candidacy yet that person shall be
considered a candidate, for purposes of determining one’s
possible violations of election laws, only during the campaign
period. Indeed, there is no "election campaign" or "partisan
political activity" designed to promote the election or defeat of a
particular candidate or candidates to public office simply because
there is no "candidate" to speak of prior to the start of the
campaign period. Therefore, despite the filing of her certificate of
candidacy, the law does not consider Penera a candidate at the
time of the questioned motorcade which was conducted a day
before the start of the campaign period.

SWS v. COMELEC PROHIBITION OF PUBLICATION CONSTITUTES PRIOR RESTRAINT


OF FREE SPEECH, GOVERNMENT BEARS THE BURDEN OF
Assailed is Sec. 5.4 of RA 9006 / Fair Election PROVING THAT IT IS NOT UNCONSTITUTIONAL: To be sure,
Act which prohibits the publication of surveys
§5.4Iays a prior restraint on freedom of speech, expression, and
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO
affecting national and local candidates 15 the press prohibiting the publication of election survey results
and 7 days before election respectively.
affecting candidates within the prescribed periods of fifteen (15)
Petitioners states that it wishes to conduct days immediately preceding a national election seven (7) days
surveys and subsequent publication during before a local election. Because of tile preferred status of tile
the entire election period and even until 2
days before the election day. constitutional rights of speech, expression, and he press, such a
measure is vitiated by a weighty presumption of
SWS contends that the prohibition invalidity.2 Indeed, any system of prior restraints of expression
constitutes prior restraint on free speech
sans clear and present danger. comes to this Court bearing a heavy Presumption against its
constitutional validity. ...The Government thus carries a heavy
COMELEC responds that the prohibition is a burden of showing justification for in enforcement of such
valid exercise of police power necessary to
prevent manipulation of electoral process. restraint. "'3 There, thus a reversal of the normal presumption of
validity that inheres in every legislation.

O ‘BRIEN TEST:Government regulation is sufficiently justified [1]


if it is within the constitutional power of the Government; [2] if it
furthers an important or substantial governmental interest; [3] if
the governmental interest is unrelated to the suppression of free
expression; and [4] if the incidental restriction on alleged First
Amendment freedoms [of speech, expression and press] is no
greater than is essential to the furtherance of that interest.

PROHIBITION IS NOT UNRELATED TO THE SUPRESSION OF FREE


SPEECH: Sec. 5.4 fails to meet criterion [3] of the O 'Brien test
because the causal connection of expression to the asserted
governmental interest makes such interest "not related to the
suppression of free expression." By prohibiting the publication of
election survey results because of the possibility that such
publication might undermine the integrity of the election, §5.4
actually suppresses a whole class of expression, while allowing the
expression of opinion concerning the same subject matter by
newspaper columnists, radio and TV commentators, armchair
theorists, and other opinion takers. In effect, §5.4 shows a bias for
a particular subject matter, if not viewpoint, by referring personal
opinion to statistical results.

PROHIBITION IS GREATER THAN IS ESSENTIAL TO THE


FIRTHERANCE OF INTEREST: Even if the governmental interest
sought to be promoted is unrelated to the suppression of speech
and the resulting restriction of free expression is only incidental,
§5.4 nonetheless fails to meet criterion [4] of the O 'Brien test,
namely, that the restriction be not greater than is necessary to
further the governmental interest. As already stated, §5.4 aims at
the prevention of last-minute pressure on voters, the creation of
bandwagon effect, "junking" of weak or "losing" candidates, and
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO
resort to the form of election cheating called "dagdag-bawas."
Thus, under the Administrative Code of 1987,17 the COMELEC is
given the power:

To stop any illegal activity, or confiscate, tear down, and


stop any unlawful, libelous, misleading or false election
propaganda, after due notice and hearing.

This is surely a less restrictive means than the prohibition


contained in §5.4.

GMA v. COMELEC THE LEGISLATIVE INTENT IS TO MAKE THE MAXIMUM TIME ON


Assailed is Sec. 9(a) of COMELEC RESOLUTION A PER STATION BASIS NOT TOTAL AGGREGATE: The law, on its
9615 which interprets Sec. 5 of RA 9006/ FEA face, does not justify a conclusion that the maximum allowable
such that each candidate shall only be a
allowed the maximum time provided by law airtime should be based on the totality of possible broadcast in all
on an aggregate basis. television or radio stations. This is further buttressed by the fact
that the Fair Election Act (R.A. No. 9006) actually repealed the
According to the petitioners, this is a faulty
interpretation of the law and an previous provision, Section ll(b) of Republic Act No. 6646, 44 which
abandonment of their previous prohibited direct political advertisements -the so-called "political
interpretation which recognizes that the ad ban."
maximum time allotted by law shall be for
each station and not total aggregate.
Given the foregoing background, it is therefore ineluctable to
Ancillary Issues: conclude that Congress intended to provide a more expansive and
1) PRIOR NOTICE is not unreasonable. liberal means by which the candidates, political parties, citizens
2) RIGHT TO REPLY is not unreasonable. and other stake holders in the periodic electoral exercise may be
given a chance to fully explain and expound on their candidacies
and platforms of governance, and for the electorate to be given a
chance to know better the personalities behind the candidates.

THE AGGREGATE BASED LIMIT IS UNREASONABLE EXERCISE OF


RESTRICTION: The assailed rule on "aggregate-based" airtime
limits is unreasonable and arbitrary as it unduly restricts and
constrains the ability of candidates and political parties to reach
out and communicate with the people. Here, the adverted reason
for imposing the "aggregate-based" airtime limits - leveling the
playing field - does not constitute a compelling state interest
which would justify such a substantial restriction on the freedom
of candidates and political parties to communicate their ideas,
philosophies, platforms and programs of government. And, this is
specially so in the absence of a clear-cut basis for the imposition
of such a prohibitive measure.
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO
EJERCITO v. COMELEC CURRENT ALLOWABLE LIMIT ON EXPENSES: Section 13 of R.A.
No. 7166118 sets the current allowable limit on expenses of
Ejercito and San Luis were contender for the candidates and political parties for election campaign, thus:
Gubernatorial race for the province of Laguna
during the 2013 Election.
SEC. 13. Authorized Expenses of Candidates and Political Parties.
Prior to the conduct of election, San Luis filed – The aggregate amount that a candidate or registered
a petition for disqualification against Ejercito
on the ground of vote buying (Orange Card) politicalparty may spend for election campaign shall be as follows:
and over expenditure (through commercials)
(a) For candidates – Ten pesos (P10.00) for President and
According to San Luis, Ejercito is only allowed
to spend around 4.5M for election expenses. Vice President; and for other candidates, Three pesos
He alleged that considering the number of (P3.00) for every voter currently registered in the
times his advertisements were shown on TV, constituency where he filed his certificate of candidacy:
it would be impossible to stay within the
aforementioned limit which amounted to Provided, That, a candidate without any political party and
almost 23.7M. without support from any political party may be allowed
to spend Five pesos (P5.00) for every such voter; and
COMELEC 1D and EB both decided to
disqualify Ejercito on the ground of over
expenditure. (b) For political parties - Five pesos (P5.00) for every voter
currently registered in the constituency or constituencies
Ejercito contends that the advertisements
were executed without his knowledge and
where it has official candidates.
consent. Furthermore, he contends that any
restriction on such manifestation of support Any provision of law to the contrary notwithstanding, any
is unconstitutional on the ground that it
restricts free speech and expression.
contribution in cash or in kind to any candidate or political party
or coalition of parties for campaign purposes, duly reported to the
Commission, shall not be subject to the payment of any gift tax.

LIMIT ON ELECTION EXPENSES REGULATES THE CANDIDATES’


CONTRIBUTOR AS WELL: In tracing the legislative history, the
intent of our lawmakers has been consistent through the years:
to regulate not just the election expenses of the candidate but
also of his or her contributor/supporter/donor as well as by
including in the aggregate limit of the former’s election expenses
those incurred by the latter.1awp++i1 The phrase "those
incurred or caused to be incurred by the candidate"is sufficiently
adequate to cover those expenses which are contributed or
donated in the candidate’s behalf. By virtue of the legal
requirement that a contribution or donation should bear the
written conformity of the candidate, a
contributor/supporter/donor certainly qualifies as "any person
authorized by such candidate or treasurer."

LIMIT ON ELECTION EXPENSES IS A CONTENT NEUTRAL


REGULATION: The inclusion of the amount contributed by a donor
to the candidate’s allowable limit of election expenses does not
trample upon the free exercise of the voters’ rights of speech and
of expression under Section 4, Artticle III of the Constitution. As a
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO
content-neutral regulation,127 the law’s concern is not to curtail
the message or content of the advertisement promoting a
particular candidate but to ensure equality between and among
aspirants with "deep pockets" and those with less financial
resources. Any restriction on speech or expression is only
incidental and is no more than necessary to achieve the
substantial governmental interest of promoting equality of
opportunity in political advertising. It bears a clear and reasonable
connection with the constitutional objectives set out in Section
26, Article II, Section 4, Article IX-C, and Section 1, Art. XIII of the
Constitution.

DIOCESE OF BACOLOD v. Section 9 of the Fair Election Act124 on the posting of campaign
COMELEC materials only mentions "parties" and "candidates":

Petitioners posted tarpaulins with 6x10 ft in Sec. 9. Posting of Campaign Materials. - The COMELEC may
size within the compound of the diocese. The
authorize political parties and party-list groups to erect common
2nd tarpaulin categorized the names into
TEAM PATAY and TEAM BUHAY according to poster areas for their candidates in not more than ten (10) public
their votes to the RH Law. places such as plazas, markets, barangay centers and the like,
wherein candidates can post, display or exhibit election
The COMELEC City Officer notified the
petitioner to remove the said tarpaulin on propaganda: Provided, That the size ofthe poster areas shall not
the ground that it exceeds the limitation exceed twelve (12) by sixteen (16) feet or its equivalent.
imposed by COMELEC RESO which is 2x3 ft.
Independent candidates with no political parties may likewise be
After some correspondence, the petitioner authorized to erect common poster areas in not more than ten
filed the instant case. (10) public places, the size of which shall not exceed four (4) by six
(6) feet or its equivalent. Candidates may post any lawful
propaganda material in private places with the consent of the
owner thereof, and in public places or property which shall be
allocated equitably and impartially among the candidates.

The tarpaulin was not paid for byany candidate or political


party.125 There was no allegation that petitioners coordinated
with any of the persons named in the tarpaulin regarding its
posting. On the other hand, petitioners posted the tarpaulin as
part of their advocacy against the RH Law.

SPEECH MADE BY NON CANDIDATES. GENERALLY, CANNOT BE


REGULATED: The traditional view has been to tolerate the
viewpoint of the speaker and the content of his or her expression.
This view, thus, restricts laws or regulation that allows public
officials to make judgments of the value of such viewpoint or
message content. This should still be the principal approach.
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO
However, the requirements of the Constitution regarding equality
in opportunity must provide limits to some expression during
electoral campaigns.

Thus clearly, regulation of speech in the context of electoral


campaigns made by candidates or the members of their political
parties or their political parties may be regulated as to time, place,
and manner.

Regulation of speech in the context of electoral campaigns made


by persons who are not candidates or who do not speak as
members of a political party which are, taken as a whole,
principally advocacies of a social issue that the public must
consider during elections is unconstitutional. Such regulation is
inconsistent with the guarantee of according the fullest possible
range of opinions coming from the electorate including those that
can catalyze candid, uninhibited, and robust debate in the criteria
for the choice of a candidate.

WHEN PRIVATE SPEECH BECOMES REGULATED: Regulation of


election paraphernalia will still be constitutionally valid if it
reaches into speech of persons who are not candidates or who do
not speak as members of a political party if they are not
candidates, only if what is regulated is declarative speech that,
taken as a whole, has for its principal object the endorsement of
a candidate only. The regulation

(a) should be provided by law,


(b) reasonable,
(c) narrowly tailored to meet the objective of enhancing the
opportunity of all candidates to be heard and considering the
primacy of the guarantee of free expression, and
(d) demonstrably the least restrictive means to achieve that
object.

The regulation must only be with respect to the time, place, and
manner of the rendition of the message. In no situation may the
speech be prohibited or censored on the basis of its content. For
this purpose, it will not matter whether the speech is made with
or on private property.
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO
1 UTAK v. COMELEC SUPERVISORY POWERS OF COMELEC DO NOT EXTEND TO
FUNDAMENTAL FREEDOMS: Notwithstanding the ostensibly
Assailed is RESO 9615 of COMELEC broad supervisory and regulatory powers granted to the
implementing RA 9006 with respect to COMELEC during an election period under Section 4, Article IX-C
posting of campaign materials. The assailed
provision prohibits the posting of campaign
of the Constitution, the Court had previously set out the
materials in public places without the limitations thereon. In Adiong, the Court, while recognizing that
consent of the owner. Public places, the COMELEC has supervisory power vis-à-vis the conduct and
according to the rule, includes PUVs and their
terminals.
manner of elections under Section 4, Article IX-C of the
Constitution, nevertheless held that such supervisory power does
Petitioner contends that the RESO violates not extend to the very freedom of an individual to express his
the right to free speech of the owners. The
fact that they enjoy a franchise, the franchise
preference of candidates in an election by placing election
distinct from the ownership of the PUV and campaign stickers on his vehicle.
terminals, hence they cannot be prohibited
from expressing their views through their
SUPERVISION DOES NOT EXTEND TO OWNERSHIP: The
properties.
COMELEC’s constitutionally delegated powers of supervision and
regulation do not extend to the ownership per se of PUVs and
transport terminals, but only to the franchise or permit to operate
the same.1âwphi1

There is a marked difference between the franchise or permit to


operate transportation for the use of the public and the
ownership per se of the vehicles used for public transport.

The right to operate a public utility may exist independently and


separately from the ownership of the facilities thereof. One can
own said facilities without operating them as a public utility, or
conversely, one may operate a public utility without owning the
facilities used to serve the public. The devotion of property to
serve the public may be done by the owner or by the person in
control thereof who may not necessarily be the owner thereof.

FRANCHISE: A franchise or permit to operate transportation


utilities pertains to considerations affecting the operation of the
PUV as such, e.g., safety of the passengers, routes or zones of
operation, maintenance of the vehicle, of reasonable fares, rates,
and other charges, or, in certain cases, nationality.25 Thus, a
government issuance, which purports to regulate a franchise or
permit to operate PUVs, must pertain to the considerations
affecting its operation as such. Otherwise, it becomes a regulation
or supervision not on the franchise or permit to operate, but on
the very ownership of the vehicle used for public transport.

The expression of ideas or opinion of an owner of a PUV, through


the posting of election campaign materials on the vehicle, does
not affect considerations pertinent to the operation of the PUV.
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO
Surely, posting a decal expressing support for a certain candidate
in an election will not in any manner affect the operation of the
PUV as such. Regulating the expression of ideas or opinion in a
PUV, through the posting of an election campaign material
thereon, is not a regulation of the franchise or permit to operate,
but a regulation on the very ownership of the vehicle.

The dichotomy between the regulation of the franchise or permit


to operate of a PUV and that of the very ownership thereof is
better exemplified in the case of commercial advertisements
posted on the vehicle. A prohibition on the posting of commercial
advertisements on a PUV is considered a regulation on the
ownership of the vehicle per se; the restriction on the enjoyment
of the ownership of the vehicle does not have any relation to its
operation as a PUV.

On the other hand, prohibitions on the posting of commercial


advertisements on windows of buses, because it hinders police
authorities from seeing whether the passengers inside are safe, is
a regulation on the franchise or permit to operate. It has a direct
relation to the operation of the vehicle as a PUV, i.e., the safety of
the passengers.

OWNERSHIP OF TERMINALS REMAINS PRIVATE AND CAN BE


USED FOR FREE SPEECH: In the same manner, the COMELEC does
not have the constitutional power to regulate public transport
terminals owned by private persons. The ownership of transport
terminals, even if made available for use by the public commuters,
likewise remains private. Although owners of public transport
terminals may be required by local governments to obtain permits
in order to operate, the permit only pertains to circumstances
affecting the operation of the transport terminal as such. The
regulation of such permit to operate should similarly be limited to
circumstances affecting the operation of the transport terminal.
A regulation of public transport terminals based on extraneous
circumstances, such as prohibiting the posting of election
campaign materials thereon, amounts to regulating the
ownership of the transport terminal and not merely the permit to
operate the same.
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

VII. POLITICAL PARTY; PARTY LIST ORGANIZATION

VETERANS FEDERATION FOUR INVIOLABLE PARAMETERS IN THE PHILIPPINE PARTY LIST


PARTY v. COMELEC SYSTEM ELECTION:

First, the twenty percent allocation - the combined number of all


party-list congressmen shall not exceed twenty percent of the
total membership of the House of Representatives, including
those elected under the party list.

Second, the two percent threshold - only those parties garnering


a minimum of two percent of the total valid votes cast for the
party-list system are "qualified" to have a seat in the House of
Representatives;

Third, the three-seat limit - each qualified party, regardless of the


number of votes it actually obtained, is entitled to a maximum of
three seats; that is, one "qualifying" and two additional seats.

Fourth, proportional representation - the additional seats which


a qualified party is entitled to shall be computed "in proportion to
their total number of votes."

CONGRESS IS GIVEN THE POWER TO PRESCRIBE MECHANICS FOR


THE PARTY LIST SYSTEM EXCEPT THE RESERVATION MADE BY
CONSTI WITH RESPECT TO THE 20% CEILING: We rule that a
simple reading of Section 5, Article VI of the Constitution, easily
conveys the equally simple message that Congress was vested
with the broad power to define and prescribe the mechanics of
the party-list system of representation. The Constitution explicitly
sets down only the percentage of the total membership in the
House of Representatives reserved for party-list representatives.

20% COMPOSITION IS MERELY A CEILING AND NOT


MANDATORY: The Constitution simply states that "[t]he party-list
representatives shall constitute twenty per centum of the total
number of representatives including those under the party-list."
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO
"(b) The parties, organizations, and coalitions receiving
at least two percent (2%) of the total votes cast for the
party-list system shall be entitled to one seat each;
Provided, That those garnering more than two percent
(2%) of the votes shall be entitled to additional seats in
proportion to their total number of votes; Provided,
finally, That each party, organization, or coalition shall
be entitled to not more than three (3) seats."

Considering the foregoing statutory requirements, it will be


shown presently that Section 5 (2), Article VI of the Constitution
is not mandatory. It merely provides a ceiling for party-list seats
in Congress.

VETERANS FORMULA WITH RESPECT TO ALLOCATION OF


ADDITIONAL SEATS:

FOR THE FIRST PARTY: If the proportion of votes received by the


first party without rounding it off is equal to at least six percent of
the total valid votes cast for all the party list groups, then the first
party shall be entitled to two additional seats or a total of three
seats overall. If the proportion of votes without a rounding off is
equal to or greater than four percent, but less than six percent,
then the first party shall have one additional or a total of two
seats. And if the proportion is less than four percent, then the first
party shall not be entitled to any additional seat.

FOR THE OTHER PARTY: In simplified form, it is written as


follows:

No. of
Additional No. of votes of additional
seats concerned party seats
for = x allocated
concerned No. of votes of to
party first party the first
party
ANG BAGONG BAYANI v.
COMELEC
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

BANAT v. COMELEC 2% THRESHOLD FOR DISTRIBUTION OF ADDITIONAL SEATS IS


UNCONSTITUTIONAL: We rule that, in computing the allocation
2007 Elections. COMELEC, as NBC, of additional seats, the continued operation of the two percent
threshold for the distribution of the additional seats as found in
the second clause of Section 11(b) of R.A. No. 7941
is unconstitutional. This Court finds that the two percent
threshold makes it mathematically impossible to achieve the
maximum number of available party list seats when the number
of available party list seats exceeds 50. The continued operation
of the two percent threshold in the distribution of the additional
seats frustrates the attainment of the permissive ceiling that
20% of the members of the House of Representatives shall
consist of party-list representatives.

We therefore strike down the two percent threshold only in


relation to the distribution of the additional seats as found in the
second clause of Section 11(b) of R.A. No. 7941. The two percent
threshold presents an unwarranted obstacle to the full
implementation of Section 5(2), Article VI of the Constitution and
prevents the attainment of "the broadest possible representation
of party, sectoral or group interests in the House of
Representatives."

DISTRIBUTION OF ADDITIONAL SEATS SHALL NOT BE LIMITED TO


THOSE WITH GUARANTEED SEATS UNDER THE 2% RULE: In
declaring the two percent threshold unconstitutional, we do not
limit our allocation of additional seats in Table 3 below to the two-
percenters. The percentage of votes garnered by each party-list
candidate is arrived at by dividing the number of votes garnered
by each party by 15,950,900, the total number of votes cast for
party-list candidates. There are two steps in the second round of
seat allocation. First, the percentage is multiplied by the
remaining available seats, 38, which is the difference between the
55 maximum seats reserved under the Party-List System and the
17 guaranteed seats of the two-percenters. The whole integer of
the product of the percentage and of the remaining available
seats corresponds to a party’s share in the remaining available
seats. Second, we assign one party-list seat to each of the parties
next in rank until all available seats are completely distributed. We
distributed all of the remaining 38 seats in the second round of
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO
seat allocation. Finally, we apply the three-seat cap to determine
the number of seats each qualified party-list candidate is entitled.
ATONG PAGLAUM v. PREVAILING GUIDELINES FOR THE PARTY LIST SYSTEM:
COMELEC
1. Three different groups may participate in the party-list system:
(1) national parties or organizations, (2) regional parties or
organizations, and (3) sectoral parties or organizations.

2. National parties or organizations and regional parties or


organizations do not need to organize along sectoral lines and do
not need to represent any "marginalized and underrepresented"
sector.

3. Political parties can participate in party-list elections provided


they register under the party-list system and do not field
candidates in legislative district elections. A political party,
whether major or not, that fields candidates in legislative district
elections can participate in party-list elections only through its
sectoral wing that can separately register under the party-list
system. The sectoral wing is by itself an independent sectoral
party, and is linked to a political party through a coalition.

4. Sectoral parties or organizations may be "marginalized and


underrepresented" or lacking in "well-defined political
constituencies." It is enough that their principal advocacy pertains
to the special interest and concerns of their either sector. The
sectors that are "marginalized and underrepresented" include
labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, handicapped, veterans, and overseas workers. The
sectors that lack "well-defined political constituencies" include
professionals, the elderly, women, and the youth.

5. A majority of the members of sectoral parties or organizations


that represent the "marginalized and underrepresented" must
belong to the "marginalized and underrepresented" sector they
represent. Similarly, a majority of the members of sectoral parties
or organizations that lack "well-defined political constituencies"
must belong to the sector they represent. The nominees of
sectoral parties or organizations that represent the "marginalized
and underrepresented," or that represent those who lack "well-
defined political constituencies," either must belong to their
respective sectors, or must have a track record of advocacy for
their respective sectors. The nominees of national and regional
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO
parties or organizations must be bona-fide members of such
parties or organizations.

6. National, regional, and sectoral parties or organizations shall


not be disqualified if some of their nominees are disqualified,
provided that they have at least one nominee who remains
qualified.

PARTY LIST SYSTEM IS COMPOSED OF THREE GROUPS: the party-


list system is composed of three different groups:

(1) national parties or organizations;


(2) regional parties or organizations; and
(3) sectoral parties or organizations.

National and regional parties or organizations are different from


sectoral parties or organizations. National and regional parties or
organizations need not be organized along sectoral lines and need
not represent any particular sector.

NATIONAL AND REGIONAL PARTIES NEED NOT REPRESENT


MARGINALIZED SECTORS: R.A. No. 7941 does not require national
and regional parties or organizations to represent the
"marginalized and underrepresented" sectors. To require all
national and regional parties under the party-list system to
represent the "marginalized and underrepresented" is to deprive
and exclude, by judicial fiat, ideology-based and cause-oriented
parties from the party-list system. How will these ideology-based
and cause-oriented parties, who cannot win in legislative district
elections, participate in the electoral process if they are excluded
from the party-list system? To exclude them from the party-list
system is to prevent them from joining the parliamentary
struggle, leaving as their only option the armed struggle.

NATIONAL AND REGIONAL PARTIES MUST LACK WELL-DEFINED


POLITICAL CONSTITUENCIES: The major political parties are those
that field candidates in the legislative district elections. Major
political parties cannot participate in the party-list elections since
they neither lack "well-defined political constituencies" nor
represent "marginalized and underrepresented" sectors. Thus,
the national or regional parties under the party-list system are
necessarily those that do not belong to major political
parties. This automatically reserves the national and regional
parties under the party-list system to those who "lack well-
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO
defined political constituencies," giving them the opportunity to
have members in the House of Representatives.
PALPARAN v. COMELEC
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO
VIII. AUTOMATED ELECTION

ROQUE v. COMELEC

CAPALLA v. COMELEC
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO
IX. RECALL

GARCIA v. COMELEC RECALL, MODES: Under the Local


Government Code, there are two modes of
FACTS: initiating a Recall: (1) directly by the people
Petitioner Garcia was the duly elected and (2) through the Preparatory Recall
governor of Bataan during the 1992 Assembly.
elections. In 1993, several mayors, vice REASON BEHIND PREPARATORY RECALL
mayors and members of different ASSEMBLY: The legislative records reveal
Sanggunians constituted themselves as there were two (2) principal reasons why this
Preparatrory Recall Assembly (PRA) to alternative mode of initiating the recall
initiate the recall of Garcia. The Resolution process thru an assembly was adopted, viz:
initiating the recall was signed by 80 (a) to diminish the difficulty of initiating
members. Comelec found 74 to be genuine recall thru the direct action of the people;
(73 votes required to constitute the and (b) to cut down on its expenses.
majority).
PEOPLE DO NOT HAVE THE SOLE AND
Garcia filed a petition with COMELEC to deny EXCLUSIVE POER TO INITIATE A RECALL: To
due course against the resolution. COMELEC be sure, there is nothing in the Constitution
dismissed the petition and scheduled the that will suggest that the people have the
recall. This prompted Garcia to go directly to "sole and exclusive right to decide on
the SC. whether to initiate a recall proceeding." The
Garcia contends that the Preparatory Recall Constitution did not provide for any mode,
Assembly is unconstitutional because the let alone a single mode, of initiating recall
right to initiate is lodged exclusively with the elections. 19 Neither did it prohibit the
people AND it violates the right to equal adoption of multiple modes of initiating
protection of the laws of a politician recall elections. The mandate given by
belonging to the minority. section 3 of Article X of the Constitution is for
Congress to "enact a local government code
SC dismissed the petition. which shall provide for a more responsive
RECALL, DEFINED: Recall is a mode of and accountable local government structure
removal of a public officer by the people through a system of decentralization
before the end of his term of office. The with effective mechanisms of recall,
people's prerogative to remove a public initiative, and referendum . . ." By this
officer is an incident of their sovereign constitutional mandate, Congress was
power and in the absence of constitutional clearly given the power to choose
restraint, the power is implied in all the effective mechanisms of recall as its
governmental operations. discernment dictates.
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO
PRA RESOLUTION IS DISTINCT FROM THE not the adoption of resolution which is
RECALL ITSELF: PRA resolution of recall deemed as recall but the filing of the
merely, starts the process. It is part of the resolution with COMELEC. This prompted
process but is not the whole process. The petitioner to go directly to the SC.
initiatory resolution merely sets the stage for
SC dismissed the petition.
the official concerned to appear before the
tribunal of the people so he can justify why LIMITATIONS ON RECALL — (a) Any elective
he should be allowed to continue in office. local official may be the subject of a recall
Before the people render their sovereign election only once during his term of office
judgment, the official concerned remains in for loss of confidence.
office but his right to continue in office is
subject to question. (b) No recall shall take place within one (1)
year from the date of the official's
LOSS OF CONFIDENCE, SOLE GROUND FOR assumption to office or one (1) year
RECALL: There is only one ground for the immediately preceding a regular local
recall of local government officials: loss of election.
confidence. This means that the people may
petition or the Preparatory Recall Assembly There are two limitations in paragraph (b) on
may resolve to recall any local elective the holding of recalls: (1) that no recall shall
officials without specifying any particular take place within one year from the date of
ground except loss of confidence. "Loss of assumption of office of the official
confidence" as a ground for recall is a concerned, and (2) that no recall shall take
political question. place within one year immediately
preceding a regular local election.
CLAUDIO v. COMELEC PURPOSE OF RECALL: The purpose of the
FACTS: first limitation is to provide a reasonable
basis for judging the performance of an
Petitioner Claudio is the elected Mayor of elective local official; to prevent premature
Pasay City. Barely one year after assuming action on the voters’ part in voting to
office, a Preparatory Recall Election was remove a newly elected official before
constituted by Baranggay chairmen and having had sufficient time to evaluate the
council members. The PRA filed its soundness of his policies and decisions. It is
Resolution with COMELEC. not the holding of PRA nor the adoption of
recall resolutions that produces a judgment
Claudio contends that (1) the required on the performance of the official
majority was not obtained and (2) the recall concerned; it is the vote of the electorate in
referred to by law refers to the process — the election that does. Therefore, as long as
adoption of a resolution initiating the recall, the recall election is not held be
thus, within the one-year prohibition
mandated by law. RECALL REFERS TO THE ELECTION ITSELF
AND EXCLUDE INITATION: “Recall" refers to
COMELEC dismissed the petition. With the election itself by means of which voters
respect to (2), COMELEC resolved that it is decide whether they should retain their local
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO
official or elect his replacement. Reasons: (1) In other words, the term "recall" in
the word limitation modifies recall. Under paragraph (b) refers only to the recall
LGC recall is exercised by the registered election, excluding the convening of the PRA
voters. Thus, recall is the election itself; (2) and the filing of a petition for recall with the
the purpose of recall is to affirm confidence, COMELEC, or the gathering of the signatures
recall is the judgment of confidence, not the of at least 25 % of the voters for a petition
initiation; (3) it will curtail the right of people for recall.
to debate and have informed decision.
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

X. FAILURE OF ELECTION

SISON v. COMELEC of force majeure, violence, terrorism, fraud,


or other analogous causes;
FACTS:
(b) the election in any polling place had been
While the canvassing was being held, suspended before the hour fixed by law for
petitioner Sison filed with the COMELEC a the closing of the voting on account of force
petition seeking to suspend the canvassing majeure, violence, terrorism, fraud, or other
of votes and to declare a failure of elections analogous causes; or
on the ground of massive fraud committed
during the election. In his petition, he (c) after the voting and during the
narrated instances purportedly showing preparation and transmission of the election
fraud (ie. Election returns with no inner seal; returns or in the custody or canvass thereof,
inspectors bringing home returns; precincts such election results in a failure to elect on
with missing returns; suspicious person account of force majeure, violence,
sneaking; locks, seal found in trash bins). terrorism, fraud, or other analogous causes.

COMELEC dismissed the petition for lack of GROUNDS FOR PRE-PROCLAMATION


evidence. Prompting petitioner to proceed CONTROVERSY: Sec. 243. Issues that may be
to the SC. raised in pre-proclamation controversy —
The following shall be proper issues that may
SC found that there is a tension with respect be raised in a pre-proclamation controversy:
to the remedy used by petitioner. SC ruled
that in either case (petition to declare a (a) Illegal composition or
failure of election and pre-proclamation proceedings of the board of
controversy) the petition will not prosper. canvassers:
There can be no FOE because the petition
did not allege specific instances required by (b) The canvassed election returns
law. There can be no PPC because such are incomplete, contain material
remedy ceases the moment the respondent defects, appear to be tampered with
assumes office. or falsified, or contain discrepancies
in the same returns or in other
THREE INSTANCES WHERE FAILURE OF authentic copies thereof as
ELECTION MAY BE DECLARED: there are only mentioned in Sections 233, 234, 235
three (3) instances where a failure of and 236 of this Code:
elections may be declared, namely:
(c) The election returns were
(a) the election in any polling place has not prepared under duress, threats,
been held on the date fixed on account coercion, or intimidation, or they are
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

obviously manufactured or not AMPATUAN v. COMELEC


authentic; and
FACTS:
(d) when substitute or fraudulent
returns in controverted polling Ampatuan was declared winner for the
places were canvassed, the results of position of governor. Candao, his opponent,
which materially affected standing of filed a petition for the declaration of failure
the aggrieved candidate or of election. COMELEC thus ordered
candidates. suspension of proclamation which was
eventually lifted and affirmed by the Court.
GROUNDS FOR PRE-PROC IS EXCLUSIVE: it is
well to note that the scope of pre- After having been proclaimed and after
proclamation controversy is only limited to assuming office, COMELEC resolved to
the issues enumerated under Section consolidate the election protests filed by
243 10 of the Omnibus Election Code, and the respondents and ordered the conduct of a
enumeration therein is restrictive and technical examination. This prompted
exclusive. 11 The reason underlying the Ampatuan to file a petition with the SC on
delimitation both of substantive ground and the ground that his proclamation and
procedure is the policy of the election law assumption of office served to stop the
that pre-proclamation controversies should petition for declaration of a failure of
be summarily decide, consistent with the election. He contends that the proper
law's desire that the canvass and remedy is an election protest, the former
proclamation be delayed as little as being summary, the latter full blown.
possible. 12 That is why such questions which
require more deliberate and necessarily ASSUMPTION OF OFFICE DOES NOT
longer consideration, are left for DEPRIVE COMELEC TO DECLARE A FAILURE
examination in the corresponding protest. 13 OF ELECTION: While, however,
the Comelec is restricted, in pre-
PROCLAMATION OF WINNING CANDIDATE proclamation cases, to an examination of the
MAKES PPC NOT VIABLE; QUO WARRANTO election returns on their face and is without
IS THE APPROPRIATE REMEDY: However, jurisdiction to go beyond or behind them
with the proclamation of the winning and investigate election irregularities,
candidate for the position contested, the the Comelec is duty bound to investigate
question of whether the petition raised allegations of fraud, terrorism, violence, and
issues proper for a pre-proclamation other analogous causes in actions for
controversy is already of no consequence annulment of election results or for
since the well-entrenched rule in such declaration of failure of elections, as the
situation is that a pre-proclamation case Omnibus Election Code denominates the
before the COMELEC is no longer viable, the same. Thus, the Comelec, in the case of
more appropriate remedies being a regular actions for annulment of election results or
election protest or a petition for quo declaration of failure of elections, may
warranto. 1 conduct technical examination of election
documents and compare and analyze voters
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

signatures and thumbprints in order to The fact that a candidate proclaimed has
determine whether or not the elections had assumed office does not deprive
indeed been free, honest and clean.[27] the Comelec of its authority to annul any
canvass and illegal proclamation.
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

XI. ELECTION OFFENSES


PEOPLE v. FERRER Respondent judge rendered a decision
finding Angoluan guilty of (1) illegal
FACTS: possession of firearms and (2) frustrated
homicide but acquitted him in the violation
Accused Ferrer was charged of inducing and of OEC.
influencing the electors vote in favor of the
candidates of the Liberal Party by delivering This prompted petitioner to file an
a speech during a political rally of the Liberal administrative case againt Nunez. Nunez
and by causing to be distributed to the contends that he cannot convict the accused
people who attended said meeting because the firearm was not taken from his
cigarettes and pamphlets concerning the person. For Nunez, OEC only punishes the
Liberal Party and went from house to house carrying within a 100-meter radius. The
and induced the electors to whom he firearm was surrendered not taken.
distributed sample, ballots of the Liberal
Party. THE LAW ONLY REQUIRES THAT THE
ACCUSED CARRIED THE WEAPON: it is not
Accused moved to quash the information on necessary that the deadly weapon should
the ground that it charged two offenses. have been seized from the accused while he
Trial court granted the quashal on the was in the precinct or within a radius of 100
ground that giving cigarettes is not meters therefrom. It is enough that the
equivalent to giving food as prohibited by accused carried the deadly weapon "in the
law. polling place and within a radius of one
hundred meters thereof" during any of the
QUASHAL IS AFFIRMED NOT BECAUSE THE specified days and hours. After respondent
TRIAL COURT WAS RIGHT BUT BECAUSE THE himself had found that the prosecution had
CHARGE CONTAINED TWO OFFENSES: The established these facts, it is difficult to
order appealed from is affirmed, not upon understand why he acquitted Alejandro of
the grounds relied upon by the trial court, the charge of violation of Section 261(p) of
but on the ground that the information the Omnibus election Code.
charges two different violations, without
pronouncement as to costs. PEOPLE v. BAYONA
MAPPALA v. JUDGE NUNEZ FACTS:

FACTS: Defendant was found guilty by the trial court


of violating Election Law prohibition against
The Provincial Prosecutor filed three cases display of firearms in the premises of the
against Alejandro Angoluan: (1) illegal precinct.
possession of firearms; (2) frustrated
murder; (3) violation of OEC. The cases were On appeal, the OSG argued that a literal
consolidated to the court presided by Nunez. application of the law would be absurd and
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

that the intention was merely to prohibit trying to influence and induce his
display with intention to influence exercise constituents to vote for him. This would be
of suffrage. stretching the interpretation of the law too
far. Petitioner deduces from this act of gift-
SC affirmed the conviction. giving that respondent was buying the votes
of the Makati residents.
ELECTION PENAL LAWS ARE MALA
PROHIBITA, INTENT IS IMMATERIAL: the A finding of Vote Buying requires more than
law which the defendant violated is a a mere tenuous deduction to prove the
statutory provision, and the intent with offense of vote-buying. There has to be
which he violated it is immaterial. It may be concrete and direct evidence or, at least,
conceded that the defendant did not intend strong circumstantial evidence to support
to intimidate any elector or to violate the law the charge that respondent was indeed
in any other way, but when he got out of his engaged in vote-buying. We are convinced
automobile and carried his revolver inside of that the evidence presented, as well as the
the fence surrounding the polling place, he facts obtaining in the case at bar, do not
committed the act complained of, and he warrant such finding.
committed it willfully. The act prohibited by
the Election Law was complete. The ONG v. HERRERA- MARTINEZ
intention to intimidate the voters or to
interfere otherwise with the election is not FACTS:
made an essential element of the offense.
Unless such an offender actually makes use Petitioner Ong assails the appointment and
of his revolver, it would be extremely assumption as Councilor by respondent
difficult, if not impossible, to prove that he Herrera. Herrera replaced her deceased
intended to intimidate the voters father who was a member of the Liberal
Party. Ong was appointed by the Party
LOZANO v. YORAC Treasurer, however he was excluded from
the session hall. On the other hand, Herrera
FACTS: complied with the legal formalities prior to
appointment.
Defendant was
Ong seeks to have the appointment annulled
VOTE BUYING REQUIRES CLEAR AND on the ground that it violated the Election
CONVINCING PROOF: No clear and Ban under the OEC.
convincing proof exists to show that
respondent Binay was indeed engaged in SC affirmed the appointment and dismissed
vote buying. The traditional gift-giving of the the petition.
Municipality of Makati during the Christmas
season is not refuted. That it was ELECTION BAN UNDER OEC: Sec. 261 (g) of
implemented by respondent Binay as OIC the Omnibus Election Code provides thus:
Mayor of Makati at that time does not
sufficiently establish that respondent was
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

(g) Appointment of new violation of this provision


employees, creation of new shall be null and void.
position, promotion, or giving
salary increases. During the ELECTION BAN COVERS ONLY
period of forty- five days APPOINTMENT UNDER CIVIL SERVICE LAW:
before a regular election and The permanent vacancy for councilor exists
thirty days before a special and its filling up is governed by the Local
election, (1) any head, official Government Code while the appointment
or appointing officer of a referred to in the election ban provision is
government office, agency or covered by the Civil Service Law.
instrumentality, whether
national or local, including REGALADO v. COURT OF
government-owned or
controlled corporations, who APPEALS & PEOPLE
appoints or hires any FACTS:
new employee whether
provisional, temporary or An information for violation of Unlawful
casual, or creates and fills any Transfer under OEC was filed against
new position, except upon petitioner Regalado. It was alleged that four
prior authority of the days after the elections and while being an
Commission. The OIC Mayor, petitioner transferred Editha
Commission shall not grant Barba, a nurse, from Poblacio to Sto. Nino,
the authority sought unless, it 25 km away from each other.
is satisfied that the position
to be filled is essential to the This prompted Barba to file a complaint for
proper functioning of the violation of OEC. The trial court found
office or agency concerned, petitioner guilty. CA affirmed the conviction.
and that the position shall not
be filled in a manner that may On appeal to SC, petitioner contends that
influence the election. what is prohibited is transfer and not
reassignment. He contends that the act done
As an exception to the was reassignment only.
foregoing provisions, a new
employee may be appointed SC affirmed the conviction.
in case of urgent need:
Provided, however, That VIOLATION OF 261(h): The two elements of
notice of the appointment the offense prescribed under §261(h) of the
shall be given to the Omnibus Election Code, as amended, are: (1)
Commission within three a public officer or employee is transferred or
days from the date of the detailed within the election period as fixed
appointment. Any by the COMELEC, and (2) the transfer or
appointment or hiring in detail was effected without prior approval of
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

the COMELEC in accordance with its COMELEC contends that the Regalado ruling
implementing rules and regulations. is explicit that any movement is covered by
the prohibition. Second, COMELEC contends
TRANSFER IS MODIFIED BY WORD that while the order was issued prior to the
WHATEVER: Moreover, §261(h) of B.P. No. election period, they were implemented
881, as amended, provides that it is an during the election period.
election offense for —
SC found that reassignment is covered by the
Any public official who makes or prohibition. However, it found that Aquino
causes any transfer or detail cannot be held liable since the orders were
whatever of any officer or employee made prior to the election period. The law
in the civil service including public punishes the antecedent act and not the
school teachers, within the election effect.
period except upon prior approval of
the Commission. (Emphasis added). ANY MOVEMENT OF PERSONNEL IS
COVERED BY OEC PROHIBITION: The terms
As the Solicitor General notes, "the transfer and detail are modified by the term
word transfer or detail, as used [above], is whatever such that "any movement of
modified by the word whatever. This personnel from one station to another,
indicates that any movement of personnel whether or not in the same office or agency,
from one station to another, whether or not during the election period is covered by the
in the same office or agency, during the prohibition
election is covered by the prohibition."
MOVEMENT CAN BE USED FOR
AQUINO v. COMELEC ELECTIONEERING: Any personnel action,
when caused or made during the election
FACTS: period, can be used for electioneering or to
harass subordinates with different political
Aquino, the president of Philhealth, issued persuasions. This possibility – of being used
reassignment orders two days before the for electioneering purposes or to harass
Election Period began. A day after the subordinates – created by any movement of
Election period began, he issued an Advisory personnel during the election period is
pertaining to the orders. This prompted precisely what the transfer ban seeks to
several affected employees to file a prevent.
complaint against him for violation of 261
(h), OEC. COMELEC found it appropriate to PLAUSIBILITY NOT ACTUALITY MATERIAL IN
file the information against petitioner. UNLAWFUL TRANSFERS: Thus, it is
immaterial whether or not the personnel
Petitioner contends that reassignments action has in fact been actually used for
cannot be covered by the prohibition. He electioneering purposes or whether there
also contends that the orders were issued has been any allegation in the complaint to
prior election period, hence not covered. this effect. The mere existence of such
plausibility for electioneering is the reason
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

that animated the legal prohibition against result desired by the antecedent acts, such
any personnel action, including transfers and as the actual or physical act of transferring,
reassignments, during the election period. are no longer the concern of the legal
prohibition.
ELEMENTS OF VIOLATION OF 261 (H): By its
terms, Section 261(h) provides at once the LAW PUNISHES HIS ACTIVE ACTS,
elements of the offense and its exceptions. CONVERSELY LAW DOES NOT PUNISH HIS
The elements are: PASSIVE ACTS: During this phase of the
entire transfer or reassignment process, the
(1) the making or causing of a government official responsible for issuing the order
official or employee’s transfer or detail plays an active role at its center. The issuing
whatever; of the order are his very acts. Thus, if the
orders are issued prior to the start of the
(2) the making or causing of the transfer or election period, they are automatically
detail whatever was made during the rendered beyond the coverage of the
election period; and prohibition and the issuing official cannot be
held liable for violation of Section 261(h) of
(3) these acts were made without the BP 881. Conversely, if the orders are issued
required prior COMELEC approval. during the election period and without
COMELEC approval, these are covered by the
As this provision operates, the making or prohibition and renders the issuing official
causing of the movement of personnel liable for violation of Section 261(h).
during the election period but without the
required COMELEC approval is covered by COMELEC v. TAGLE
the prohibition and renders the responsible
person liable for the offense. Conversely, the FACTS:
making or causing (of the movement of
personnel) before or after the election period The petition is an offshoot of the case filed
even without the required COMELEC by Bautista against the winning mayor of
approval, or during the election period but Kawit for violation of 261 (b), Vote Buying to
with the required COMELEC approval are not which COMELEC recommended the filing of
covered by the prohibition and do not render appropriate information.
the responsible person liable for this election
offense. Before trial on the Vote Buying Case
commenced, a separate action was filed
LEGAL PROHIBITION APPLIES ONLY TO THE against the witnesses in the Vote Buying
ANTECEDENT ACT: The legal prohibition on Case for the same offense. Prosecutor filed
transfer or detail undoubtedly affects only the cases with RTC Imus. Thereafter,
those acts that go into the making or COMELEC issued a minute resolution finding
causing or to the antecedent acts. Any act the witnesses accused in this case to be
that occurs or is performed after the exempt from prosecution. It filed a motion
antecedent act of making or causing or those to dismiss with RTC Imus, however
acts performed to carry out an event or respondent judge denied the motion on the
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

ground that the witnesses have not 1080 had already executed sworn
performed the overt act of testifying statements attesting to the corrupt practice
required by law yet. of vote-buying in the case docketed as
Criminal Case No. 7034-99. It cannot then be
IMMUNITY MAY BE GRANTED FOR denied that they had already voluntarily
PROSECUTION OF VOTE BUYING/ SELLING: given information in the vote-buying case. In
One of the effective ways of preventing the fact, they willingly testified in Criminal Case
commission of vote-buying and of No. 7034-99 per petitioner’s Memorandum
prosecuting those committing it is the grant filed with this Court
of immunity from criminal liability in favor of
the party whose vote was bought. This grant TAPISPISAN v. COURT OF
of immunity will encourage the recipient or
acceptor to come into the open and APPEALS
denounce the culprit-candidate, and will
FACTS:
ensure the successful prosecution of the
criminal case against the latter. Congress
Petitioner Tapispisan is a public school
saw the wisdom of this proposition, and so
teacher. The controversy began when the
Section 28 of R.A. No. 6646 on Prosecution
Division Superintendent issued a
of Vote-Buying and Vote-Selling concludes
designation order addressed to Rumbaoa
with this paragraph:
and Teves as OIC Head Teacher and OIC
Principal respectively.
REQUISITES TO BECOME ELIGIBLE FOR
IMMUNITY: The giver, offeror, the promisor
Remotely, in the CA the court ruled that the
as well as the solicitor, acceptor, recipient
designation cannot be a prohibited act
and conspirator referred to in paragraphs (a)
during the election period.
and (b) of Section 261 of Batas Pambansa
Blg. 881 shall be liable as principals:
SC dismissed the petition.
Provided, That any person, otherwise guilty
under said paragraphs who voluntarily gives As a corollary, such designation did not
information and willingly testifies on any violate Resolution No. 2731 dated December
violation thereof in any official investigation 5, 1994 of the Commission on Elections,
or proceeding shall be exempt from which declared as a prohibited act the
prosecution and punishment for the transfer of officers and employees in the civil
offenses with reference to which his service during the election period from
information and testimony were given: January 8, 1995 up to June 7, 1995. Transfer
Provided, further, That nothing herein shall is defined as "a movement from one position
exempt such person from criminal to another which is of equivalent rank, level
prosecution for perjury or false testimony. or salary without break in service involving
the issuance of an appointment."21 The
Respondent judge lost sight of the fact that designation of respondents Rumbaoa and
at the time the complaint for vote-selling
Teves did not involve a movement from one
was filed with the Office of the Provincial
position to another. Neither did it involve
Prosecutor, the respondents in I.S. No. 1-99-
the issuance of any appointment to the said
ELECTION LAW | ATTY. PASCASIO
CARLO ANGELO CABRITO

positions in their favor. In fact, respondents and legal meanings, transfer and detail must
Rumbaoa and Teves retained their be construed as such.
incumbent positions at the Villamor Air Base
Elementary School. As such, their Obviously, the movement involving Causing
designation could not be considered as a did not equate to either a transfer or a
"transfer" within the meaning of a detail within the contemplation of the law if
prohibited act during the election period. Mayor Biron only thereby physically
transferred her office area from its old
CAUSING v. COMELEC location to the Office of the Mayor "some
little steps" away.34 We cannot accept the
FACTS: petitioner’s argument, therefore, that the
phrase "any transfer or detail whatsoever"
Petitioner Causing is the municipal civil encompassed "any and all kinds and manner
registrar since 1993. In 2010, Mayor Biron of personnel movement,"35 including the
issued a Memo ordering Causing to be mere change in office location.
detailed at the Office of the Mayor, her table
will be provided there.

Because of this, Causing filed a complaint


claiming that the order of Biron was an
Unlawful Transfer being made during the
election period.

Biron contends that the transfer was merely


for supervision and such was an exercise of
management prerogatives.

TRANSFER DOES NOT INCLUDE PHYSICAL


TRANSFER: The only personnel movements
prohibited by COMELEC Resolution No. 8737
were transfer and detail. Transfer is defined
in the Resolution as "any personnel
movement from one government agency to
another or from one department, division,
geographical unit or subdivision of a
government agency to another with or
without the issuance of an appointment;"
while detailas defined in the Administrative
Code of 1987is the movement of an
employee from one agency to another
without the issuance of an
appointment.33 Having acquired technical