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ELECTION LAWS

Part II
6. Candidacy
a. Qualifications of Candidates
b. Filing of Certificates of Candidacy
(1) Effect of Filing
(2) Substitution of Candidates
(3) Nuisance Candidates
(4) Petition to Deny or Cancel
Certificates of Candidacy
(5) Effect of Disqualification
(6) Withdrawal of Candidates
7. Campaign
a. Premature Campaigning
b. Prohibited Contributions
8. Board of Canvassers
9. Remedies and Jurisdiction in Election
Law
a. Petition Not to Give Due Course to
Certificate of Candidacy
b. Petition to Declare Failure of Elections
c. Pre-Proclamation Controversy
d. Election Protest
e. Quo Warranto
10. Prosecution of Election Offenses
b. Filing of Certificates of Candidacy
1. Effect of Filing
Note THAT THE PERIOD OF WHEN TO FILE COC IS NOT GOVERNED BY LAW..
THE PROMULGATION OR SETTING OF WHICH IS LODGED TO THE
COMELEC

Date of Filing: RA 7941, Sec. 7: not later than


the day before the date fixed for the
beginning of his campaign period.
OTHERWISE STATED THE PERIOD OF FILING COC MUST BE BEFORE
THE CAMPAIGN PERIOD! IN FACT, EVERY ELECTION, THE
COMELEC ISSUES A RESOLUTION PROVIDING THE DATE OF
PERIOD OF FILING COC!!
Resolution No. 8692- for 2010 Elections:

"Sec. 5. Period for filing Certificate of Candidacy. -


The certificate of candidacy shall be filed from 8:00
o'clock in the morning up to 5:00 o'clock in the
afternoon, beginning November 20, 2009 up to
November 30, 2009, and up to midnight on
December 1, 2009, inclusive of Saturdays, Sundays
and Holidays.
BP Blg. 881: EFFECTS OF FILING!
Sec. 66. Candidates holding appointive office or
positions. - Any person holding a public appointive office or
position, including active members of the Armed Forces of the
Philippines, and officers and employees in government-owned or
controlled corporations, shall be considered ipso facto resigned
from his office upon the filing of his certificate of
candidacy.
Sec. 67. Candidates holding elective office. - Any
elective official, whether national or local, running for any office
other than the one which he is holding in a permanent capacity,
except for President and Vice-President, shall be considered ipso
facto resigned from his office upon the filing of his certificate of
candidacy. ALREADY MODIFIED!!
REPUBLIC ACT 9006 February 12, 2001
AN ACT TO ENHANCE THE HOLDING OF FREE,
ORDERLY, HONEST, PEACEFUL AND CREDIBLE
ELECTIONS THROUGH FAIR ELECTION
PRACTICES
Section 14. Repealing Clause. Section 67 and 85
of the Omnibus Election Code (Batas Pambansa
Bldg. 881) and Sections 10 and 11 of Republic Act
No. 6646 are hereby repealed.
Is there violation of the equal protection clause?
Quinto v. COMELEC, 613 SCRA 385 (2010)
Held: Substantial distinctions clearly exist between elective officials and
appointive officials. The former occupy their office by virtue of the mandate
of the electorate. They are elected to an office for a definite term and may
be removed therefrom only upon stringent conditions. On the other hand,
appointive officials hold their office by virtue of their designation thereto
by an appointing authority. Some appointive officials hold their office in a
permanent capacity and are entitled to security of tenure while others serve
at the pleasure of the appointing authority. Another substantial distinction
between the two sets of officials is that under Section 55, Chapter 8, Title I,
Subsection A. Civil Service Commission, Book V of the Administrative
Code of 1987 (Executive Order No. 292), appointive officials, as officers
and employees in the civil service, are strictly prohibited from engaging
in any partisan political activity or take part in any election except to
vote. Under the same provision, elective officials, or officers or employees
holding political offices, are obviously expressly allowed to take part in
political and electoral activities.
MEANING, THE PROVISION ON SEC. 66 IS VALID ALL
APPOINTIVE OFFICIALS SHALL IPSO FACTO
CONSIDERED RESIGNED UPON FILIING OF COC.. ALL
ELECTIVE OFFICIALS ARE NOT DEEMED CONSIDERED
RESIGNED UPON FILING OF COC.. THIS IS NOW THE
PREVAILING JURISPRUDENCE AND RULING!! IN SO FAR
AS FILING OF COC, THERE IS SUBSTANTIAL
DISTINCTION BETWEEN ELECTIVE AND APPOINTIVE
OFFICIALS..
PNOC v. NLRC, 222 SCRA 832:
Pineda was employed with the PNOC-Energy
Development Corporation, a subsidiary of
PNOC organized under the Corporation Code.
In January 1998, he filed a certificate of
candidacy and won as councilor of Kananga,
Leyte. PNOC terminated him. Is the
termination valid? Yes!
Any person holding a public appointive office or position, including active
members of the Armed Forces of the Philippines, and officers and employees
in government-owned or controlled corporations, shall be considered ipso
facto resigned from his office upon the filing of his certificate of
candidacy.
The prohibition applies not only to those with original charter bu also to
Subsidiaries and private corporations acquired by the government
through purchase.. At least 51 percent of the stocks of which is
owned by government
Questions:
1. Can (COC) it be withdrawn? Yes! Art. 73:
anytime prior to the day of the election. ON THE
ELECTION DAY, IT CAN NO LONGER BE WITHDRAWN!! YOUR
NAME STANDS IN THE BALLOT

2. Can a withdrawal be withdrawn? Monsale


v. Nico, 83 Phil. 758 (1949)- (REINSTATEMENT OF
CANDIDACY) YES THE WITHDRAWAL CAN BE WITHDRAWN
ANYTIME BEFORE THE DEADLINE OF THE COC FILING!

2. Can you file two COCs? Art. 73: If you win


both, or either? Exception: withdraws it before
the deadline for filing..
IF YOU FILE 2 OR MORE COCS AND YOU WIN ALL, YOU CANNOT
SERVE ANY YOU ARE DISQUALIFIED!! UNLESS YOU WITHDRAW
IT BEFORE THE DEADLINE OF FILING!!
Bar Question, 2003, No. 10
a. Pedro Reyes is an incumbent Vice-Mayor of Quezon City.
He intends to run in the regular elections for the position of
City Mayor of Quezon whose incumbent mayor would have
fully served three consecutive terms by 2004. Would Pedro
Reyes have to give up his position as Vice Mayor?
i. once he files his certificate of candidacy
ii. when the campaign period starts
iii. once and if he proclaimed winner in the election
iv. upon his assumption to office NOTE: THERE
SHOULD NOTHING BE GIVEN UP SINCE HIS TERM AS VICE MAYOR END ALSO ON
JUNE 30
v. none of the above
b. If Pedro Reyes were instead, an incumbent
Congressman of Quezon City, who intends to
seek the mayoralty post in Quezon City,
would your choice of answer above be the
same? If not, which would be your choice?
APPLYING THE NEW RULING, AN ELECTIVE OFFICIAL WHO FILES A COC
FOR ELECTIVE POSITION OTHER THAN HE IS CURRENTLY HOLDING IS
NOT CONSIDERED RESIGNED AS DISTINGUISHED TO THAT OLD LAW
WHERE HE IS DEEMED CONSIDERED RESIGNED!!
Bar Question, 2002: No. 13
A, a City Legal Officer, and B, a City Vice Mayor,
filed certificates of cabdidacy for the position of City
Mayor in the May 14, 2001 elections.
A. Was A ipso facto considered resigned and, if
so, effective on what date? YES! HE IS CONSIDERED IPSO
FACTO RESIGNED UPON FILING OF COC!!
B. Was B ipso facto considered resigned and, if
so, effective on what date? NO! AN ELECTIVE OFFICIAL WHO
FILES A COC FOR ELECTIVE POSITION OTHER THAN HE IS CURRENTLY
HOLDING IS NOT CONSIDERED RESIGNED HE IS ONLY CONSIDERED
RESIGNED UPON THE END OF HIS TERM ON JUNE 30..
In both cases, state the reason or reasons for your
answer.
6 (b) (2): Substitution of Candidates
OEC, Sec. 77. If after the last day for the filing of
certificates of candidacy, an official candidate of a
registered or accredited political party dies,
withdraws or is disqualified for any cause, only a
person belonging to, and certified by, the
same political party may file a certificate of
candidacy to replace the candidate who
died, withdrew or was disqualified.
The substitute candidate nominated by the
political party concerned may file his certificate
of candidacy for the office affected in
accordance with the preceding sections not
later than mid-day of the day of the
election. If the death, withdrawal or
disqualification should occur between the day
before the election and mid-day of election
day, said certificate may be filed with any
board of election inspectors in the political
subdivision where he is a candidate, or, in the
case of candidates to be voted for by the entire
electorate of the country, with the Commission.
Rules on Substitution:
A. With a Party
-Substitute must belong to the same party
and must be nominated by the same party
-Must file at anytime before midday of the
day of election with BEI, or COMELEC for
national positions
B. With No party?
THE LAW DOES NOT SAY ANYTHING IF CANDIDATE HAS NO PARTY,
HE CANNOT BE SUBSTITUTED OR REPLACED BY ANYBODY..
REMEMBER THE DISTINCTION WITH SUBSTITUTION OF
SANGGUNIANG BAYAN MEMBERS WHERE THE PARTY CAN
RECOMMEND IF HE IS A MEMBER THEREOF.. IF HE HAS NO PARTY,
THE CONCERNED SANGGUINANG MAY RECOMMEND.. BUT HERE,
IF YOU HAVE NO PARTY, YOU CAN NO LONGER BE SUBSTITUTED!!
Bar Question, 1995, No. 7:
The Vice Mayor of Municipality filed his certificate of
candidacy for the same office in the last elections.
The Municipal Mayor was also running for reelection.
Both were official candidates of the same political
party. After the last day for the filing of certificates of
candidacy, the Mayor died.
(3) Is there any legal impediment to the Vice Mayor
running instead as Mayor to replace the reelectionist
Mayor who died?
NO PROBLEM HERE THEY BELONG TO THE SAME PARTY WHAT IS ONLY
REQUIRED IS NOMINATION AND RECOMMENDATION BY THE PARTY FOR
THE SUBSTITUTION!! HE MAY STILL FILE BUT NOT LATER ON THE MIDDAY
OF ELECTION DAY!!!
NOTE HOWEVER, IF THE MAYOR DIED ON THE ELECTION DAY AND HE WINS,
HE HAS TO BE PROCLAIMED AND THE VICE MAYOR SHALL ASSUME
OFFICE BY SUCCESSION!!
6. (b) 3. Nuisance Candidates
Sec. 69. Nuisance candidates. - The Commission may motu
proprio or upon a verified petition of an interested party,
refuse to give due course to or cancel a certificate of
candidacy if it is shown that said certificate has been filed
to put the election process in mockery or disrepute or to
cause confusion among the voters by the similarity of the
names of the registered candidates or by other
circumstances or acts which clearly demonstrate that the
candidate has no bona fide intention to run for the office
for which the certificate of candidacy has been filed and
thus prevent a faithful determination of the true will of the
electorate.
Grounds to declare one a nuisance: MEMO THIS!!
1. COC was filed to put the election process in
mockery or disrepute
2. COC was filed to cause confusion among the
voters by the similarity of the names of the
registered candidates
3. Other circumstances or acts which clearly
demonstrate that the candidate has no bona fide
intention to run for the office for which the
certificate of candidacy has been filed and thus
prevent a faithful determination of the true will of
the electorate.
Pamatong v. COMELEC, 427 SCRA 96 (2005)
The Commission on Elections refused to give due course to the
Certificate of Candidacy for President of Rev. Elly Velez Pamatong for the
2004 national elections. Along with 35 other candidates, the COMELEC
found that he was a nuisance candidate. Did the act of the COMELEC
violate petitioners right to equal access to opportunities for public service
under Sec. 26, Art. II of the 1987 Constitution?
Held: No. There is no constitutional right to run for or hold a public
office. Sec. 26, Art. II of the Constitution neither bestows such a right
nor elevates the privilege to the level of an enforceable right. The
provisions under Art. II are generally considered not self-executing,
and there is no plausible reason for according a different treatment to
the equal access provision.

OTHERWISE STATED, THERE IS NOT RIGHT TO RUN FOR PUBLIC


OFFICE.. IT IS ONLY A PRIVILEGE!! NOTE THAT THE RIGHT TO
SUFFRAGE HAS REFERENCE ONLY TO THE RIGHT TO VOTE AND
DOES NOT INCLUDE THE RIGHT TO BE VOTED FOR!!!
Basis: (YOU CAN BE DECLARED NUISANCE UNDER THE
FOLLOWING CIRCUMSTANCES)

1. could not wage a nationwide campaign


and/or
2. not nominated by a political party or
3. not supported by a registered political
party with a national constituency.
Orderly election- THIS THE REASON WHY SC WOULD
SUSTAIN THE DECLARATION OF THE COMELEC
AGAINST A CANDIDATE AS NUISANCE.. THIS IS FOR
THE INTEREST OF ORDERLY ELECTION!! It would be
very difficult of conduct elections with so many
candidates most of which have no chance of winning
hence, hampering the orderly election!!
6. (b) (4) Petition to Deny or Cancel Certificates
of Candidacy

[Procedural Remedies Against other Candidates]


Remedies:[Procedural Remedies Against other Candidates] before
election day!! Because QUO WARRANTO is only had after there has been
an election and proclamation!! So the following can be done before the
election in seeking to disqualify any candidate

1. Petition to deny or cancel COC under


Sec. 76 of the OEC
2. Petition to disqualify candidate under
Rule 25 of the COMELEC Rules
3. Petition to declare a candidate as
nuisance under Rule 24, Sec. 3
1. Petition to deny or cancel COC
Ground: Material Misrepresentation in the COC, such as:
a. date of birth
b. residency
c. citizenship
d. party
e. address
f. insanity
f. conviction
NOTE: THESE ARE MATERIAL ENTRIES BECAUSE IT PERTAINS TO THE QUALIFICAITON
OR DISQUALIFACTION OF A CANDIDATE
IT MUST BE FILED NOT LATER THAN 25 DAYS AFTER FILING of
COC-
2. Petition to disqualify candidate under Rule 25
Ground: Commission of Acts which are Ground for
Disqualification under Sec. 68, but this requires final
judgment by a court- (THIS MAY BE RELEVANT FOR FUTURE ELECTIONS
AND NOT THE IMMEDIATE ELECTIONS AS FINAL JUDGMENT CAN TAKE A LONG
TIME)
(a) given money to corrupt voters or public officials;
(b) committed acts of terrorism to enhance his candidacy;
(c) incurred excessive spending;
(d) received prohibited contributions
(e) engaged in illegal campaign

Period-last day of filing COC but not later than proclamation


3. Petition to declare a candidate as nuisance
under Rule 24, Sec. 3-

Period- within 5 days from last day of


filing. BUT WE FIND NO PROBLEM HERE BECAUSE
THE COMELEC CAN DECLARE A CANDIDATE NUISANCE
MUTO PROPIO
Amora Jr. vs. COMELEC, 640 SCRA 273 (2011)
May a candidate be disqualified on the ground
that his COC was defectively filed, e.g., only
CTC, not a competent evidence of identity as
required by the Notarial Rules of 2004, was
presented to the notary?

NO! THAT IS NOT A GROUND TO


DISQUALIFY HIM!!
Bar Question, 2011
50. Where a candidate for the Senate stated in his
certificate of candidacy that he is single, when he is
very much married, though separated, his certificate
of candidacy
A. may be canceled.
B. will subject him to a quo warranto action.
C. remains valid. BECAUSE BEING SINGLE OR MARRIED HAS
NOTHING TO DO WITH YOUR QUALIFICATIONS!!

D. may be denied due course.

NOTE: IT WOULD BE MATERIAL IF I MISREPRESENT THE NUMBER OF


TERMS SERVED WHEN PUTTING THE TRUE TERMS SERVED
WOULD DISQUALIFY ME !! THE TEST: IS THE
MISREPRESENTATION MATERIAL TO MY CANDIDACY OR
QUALIFICATION TO RUN FOR SUCH OFFICE?
7. Campaign
a. Premature Campaigning
Election campaign refers to an act
designed to promote the election or defeat
of a particular candidate.
Campaign period (90 NATIONAL,
45 LOCAL and 15 days
BARANGAY) cannot be increased
by law
Why is campaign period regulated? TO AVOID
DEMORALIZATION IN GOVERNMENT SERVICE!! PUBLIC SERVICES WOULD
BE HAMPERED AS EVERY ELECTIVE OFFICIALS-CANDIDATES WILL BE
BUSY CAMPAIGNING TO THE PREJUDICE OF THE BASIC SERVICES TO ITS
CONSTITUENTS!!
. Osmena v, COMELEC, 191 SCRA 752
RA 7056 provides for a different campaign period, as
follows:
a) For President arid Vice-Presidential elections one hundred
thirty (130) days before the day of election.
b) For Senatorial elections, ninety (90) days before the day of
the election, and)
c) For the election of Members of the House of
Representatives and local elective provincial, city and
municipal officials forty-five (45) days before the day of the
elections. UNCONSTITUTIONAL-
THE CONGRESS CANNOT LENGTHEN THE CAMPAIGN
PERIOD!!! NOTE THAT [Sec. 9, C, Art. IX OF THE
CONSTITUTION PROVIDES ELECTION PERIOD OF 90
days before and 30 days after, except in special cases
which may be fixed by the Commission. IN THE END
ACTUALLY, RA 7065 INCREASES THE CAMPAIGN
PERIOD LONGER THAN THE ELECTION PERIOD.. WHICH
CANNOT BE DONE!!.
Election 2010, May 10-Campaign Period
Resolution No. 8758:
February 9 to May 8, 2010 - the election of
President, Vice President, Senators and Party-
List Representatives; and
March 26 to May 8, 2010 - the election of
members of the House of Representatives and
elective provincial, city and municipal officials.
PREMATURE CAMPAIGNING
OEC, Sec. Election campaign or
80.
partisan political activity outside
campaign period. - It shall be unlawful for
any person, whether or not a voter or candidate,
or for any party, or association of persons, to
engage in an election campaign or partisan
political activity except during the campaign
period: Provided, That political parties may hold
political conventions or meetings to nominate
their official candidates within thirty days before
the commencement of the campaign period and
forty-five days for Presidential and Vice-
Presidential election.
Premature Campaigning:
Penera v. COMELEC, G.R. No.
181613, November 25, 2009
Penera filed her COC as Mayor of Sta.
Monica, Surigao del Norte. One day before
the start of the campaign period, she
conducted motorcade. Is she liable for
premature campaigning?
NOTE: YOU CAN ONLY CAMPAIGN DURING
THE CAMPAIGN PERIOD LAID DOWN BY
THE COMELEC THROUGH ITS
RESOLUTION!!
Held: No. Section 79(a) of the Omnibus Election Code defines
a "candidate" as any person aspiring for or seeking an
elective public office, who has filed a certificate of candidacy x
x x." The second sentence, third paragraph, Section 15 of RA
8436, as amended by Section 13 of RA 9369, provides that
"[a]ny person who files his certificate of
candidacy within [the period for filing] shall
only be considered as a candidate at
the start of the campaign period for
which he filed his certificate of candidacy." The
immediately succeeding proviso in the same third paragraph
states that "unlawful acts or omissions
applicable to a candidate shall take effect
only upon the start of the aforesaid
campaign period.
Summary:
1. Premature campaign is the act of
campaigning by a candidate before the campaign
period;
2. However, before the campaign period no one
can be considered a candidate yet;
3. Therefore, campaigning before the campaign
period is not premature campaigning. [What
happened to Osmena?]
TAKE NOTE OBSERVATION!!! THE SC SEEMS TO FORGET THE PRINCIPLE LAID DOWN IN
THE OSMENA CASE WHERE IT WAS RULED THAT YOU CANNOT PASS A LAW
INCREASING THE CAMPAIGN PERIOD BECAUSE YOU ARE ACTUALLY INCREASING
THE ELECTION PERIOD!! BUT WHEN PENERA CASE COME OUT, THE SC SEEMS TO
SAY THAT THERE IS NO LONGER A CAMPAIGN PERIOD!! BECAUSE YOU CAN
CAMPAIGN ANYTIME WITHOUT VIOLATING THE PROHIBITION OF PREMATURE
CAMPAIGNING!! IN THE END, THE LAW PROHIBITING THE PREMATURE
CAMPAIGNING WOULD BE RENDERED INUTILE AS IT INDIRECTLY INCREASES THE CAMPAIGN
PERIOD WITH NO MORE PARAMETERS.. IN THE FIRST GLANCE, THERE IS A LAW PROHIBITING IT, BUT IN THE END IT IS AS
IF THERE IS NON.. IMPOSSIBLE TO VIOLATE PREMATURE CAMPAIGNING!!
b. Prohibited Contributions

BP Blg. 881, Sec. 95-97


Sec. 95. Prohibited contributions. - No
contribution for purposes of partisan political activity
shall be made directly or indirectly by any of the
following:
(a) Public or private financial institutions: Provided,
however, That nothing herein shall prevent the making of
any loan to a candidate or political party by any such
public or private financial institutions legally in the
business of lending money, and that the loan is made in
accordance with laws and regulations and in the ordinary
course of business;
BANK AND LENDING ENTITIES CANNOT MAKE SUCH CONTRIBUTION TO
CANDIDATES
(b) Natural and juridical persons operating a public utility
or in possession of or exploiting any natural resources of
the nation; PAL, PLDT, MINING COMPANIES ARE NOT ALLOWED
(c) Natural and juridical persons who hold contracts or
sub-contracts to supply the government or any of its
divisions, subdivisions or instrumentalities, with goods
or services or to perform construction or other works;
(d) Natural and juridical persons who have been granted
franchises, incentives, exemptions, allocations or similar
privileges or concessions by the government or any of its
divisions, subdivisions or instrumentalities, including
government-owned or controlled corporations;
OWNER OF COCKPIT IS PROHIBITED!!
Prohibited:
1. financial institutions [banks and lending
entities]
2. public utilities and those exploiting natural
resources [mining firms]
3. contractors of public works and services
4. those granted franchises, incentives,
exemptions, allocations or similar privileges or
concessions
(e) Natural and juridical persons who, within one year
prior to the date of the election, have been granted loans
or other accommodations in excess of P100,000 by the
government or any of its divisions, subdivisions or
instrumentalities including government-owned or
controlled corporations;
(f) Educational institutions which have received grants of
public funds amounting to no less than P100,000.00;
(g) Officials or employees in the Civil Service, or
members of the Armed Forces of the Philippines; and
(h) Foreigners and foreign corporations.
In the Philippines, are corporations, as such, prohibited from
making political donations? NO! ONLY THOSE PUBLIC UTILITIES, OR
ENGAGE IN THE EXPLOITATION OF NATURAL RESOURCES, OR GRANTED LOANS
OR FRANCHISES BY THE GOVERNMENT.. READ PRECEDING LISTS!!
In the United States---
-Citizens United v. Federal Election Commission
(2010)- laws prohibiting corporate and union political
expenditures were unconstitutional. The US Supreme Court
held that corporation and unions share the first amendment
right to free speech that individuals do under the US
Constitution.
- PACs may not make contributions to candidate campaigns or
parties, but may engage in unlimited political spending
independently of the campaigns. They can raise funds from
corporations, unions and other groups, and from individuals,
without legal limits.
8. Board of Canvassers
Canvass the opening and examination of
the election returns and compilation of the
election returns and compilation of a
summarized statement showing the result of
the election in a particular area.
PLEASE DO NOT BE CONFUSED CANVASS WITH COUNTING AS THE
LATTER IS THE ACTUAL COUNTING OF VOTES CONDUCTED IN THE
PRECINCT..
SO THE PROCEDURE IS THAT YOU HAVE ELECTION RETURNS FROM
THE PRECINCTS WHICH SHALL BE SUBJECT TO CANVASS IN THE
MUNICIPALITY SUCH CANVASS SHALL BE SUBJECT TO
CANVASS IN THE PROVINCIAL LEVEL..
Nature of the Canvass: PRINCIPLE GOVERNING CANVASS!!
1. Ministerial - add up the returns and declare a
result. As long as they are not forged or spurious
and signed, the Board cannot reject. [mathematical
and mechanical]
-voters were bribed? NO! YOU CANNOT CLAIM THAT THE
VOTERS WERE BRIBED!! BECAUSE IT DOES NOT APPEAR ON THE
CANVASS!!

-voters were flying voters? NO! IT CANNOT BE CLAIMED IT


DOES NOT APPEAR THERE!!

-only evidence is certificate of canvass, it


cannot go beyond
BOC EXERCISES ALSO QUASI-JUDICIAL FUNCTION BECAUSE IT CAN DETERMINE W/N
THE ELECTION RETURNS ARE GENUINE! BUT SUCH DETERMINATION HAS TO BE
LIMITED ON THE FACE OF THE RETURN!!
HOWEVER, YOU CAN RAISE BEFORE THE COC THAT THE RETURNS HAS TOO MANY
ERASURES OR ENTRIES THEREIN ARE VERY POOR OR IT HAS NO SIGNATURES OF
THE AUTHORIZED PERSON OR ONE OF THE RETURNS IS FAKE
2. quasi-judicial it can determine if the
returns are genuine
-erasures
-no signatures
-2 returns are submitted
3. An ad hoc body, under the control and
supervision of the COMELEC
-as such, it can be ordered by the latter to stop the
canvassing, annul a proclamation made by it, or
change the members. Courts cannot interfere with its
functions.
AD HOC BODY- MEANS IT DISAPPEAR AS SOON AS THE CANVASS IS OVER!! IT
EXIST ONLY THE MOMENT THE CANVASS STARTS AND CEASES WHEN THE
SAME OR THE FUNCTIONS ARE FINISHED!!
Republic Act No. 9369, January 23, 2007 (NEW RULES OF
CANVASSING)!!
"SEC. 25. Canvassing by Provincial, City, District and
Municipal Boards of Canvassers. - The City or Municipal board
of canvassers shall canvass the votes for the president, vice-
president, senators, and parties, organization or coalitions
participating under the party-list system by
consolidating the electronically transmitted
results contained in the data storage
devices used in the printing of the election
returns. Upon completion of the canvass, it shall print the
certificate of canvass of votes for president, vice-president,
senators and members of the House of Representatives and
elective provincial officials and thereafter, proclaim the elected
city or municipal officials, as the case may be.
WITH THE PASSAGE OF THE ELECTRONIC VOTING LAW, CANVASS MAY NOW BE
DEFINED AS THE ACT OF consolidating the electronically transmitted results
contained in the data storage devices used in the printing of the election returns..
What will happen is that after the voting ends, part of the machine will be pressed and a
certificate of canvass shall be printed!! Such canvass shall be forwarded to the
municipality.. With that, you can no longer object anymore as the mere pressing the
machine will result to printing of certificate of canvass!! So there can be no more
objections as to such canvass.. Now, CANVASS IS CONSOLIDATING.
Board of Canvassers:
1) Congress for President and Vice-
President
-sits in joint public session
-may it be delegated to a Joint Committee?
YES
Proclamation? -Pimentel v. Joint Committee of
Congress, GR No. 163783, June 22, 2004
HERE THE CONGRESS CREATED A JOINT COMMITTEE AS IT USED TO
BE FOR THE PREVIOUS ELECTIONS..HELD: SC SUSTAINED THE
VALIDITY OF SUCH COMMITTEE IT HAS BEEN STANDARD
PRACTICE OF THE CONGRESS!!
RA No. 9369- (CANVASS DONE IN CONGRESS)
"SEC. 28. Congress as the National Board of Canvassers for
President and Vice-President. - The Senate and the House of
Representatives in joint public session shall compose the
national board of canvassers for president and vice-
president. The certificate of canvass for president and vice-
president duly certified by the board of canvassers of each
province or city, shall be electronically transmitted to the
Congress, directed to the president of the Senate. Upon
receipt of the certificates of canvass, the President of the
Senate shall, not later than thirty (30) days after the day of the
election, open all the certificates in the presence of
the Senate and the House of representatives in joint public
session and the Congress upon determination of the
authenticity and the due execution thereof in the manner
provided by law, canvass all the results for president and
vice-president and thereafter, proclaim the winning
candidates.
NOTE: THE CANVASSING IN PROVINCE OR CITIES ARE DONE ELECTRONICALLY BY
SIMPLY PRESSING THE MACHINE AND THERE A CERTIFICATE OF CANVASS IS
PRINTED!! HERE IN THE CONGRESS, THEY HAVE TO OPEN THE CERTIFICATES IN
THE PRESENCE.. THEY HAVE TO DO IT MANUALLY.. THE REASON IS THE SAME IS
CONSTITUTIONALLY MANDATED..
2. Commission on Elections National
Board of Canvassers [including absentee-
voting returns]
a. Senators
b. Party-list Representatives
c. ARMM Officials
3. Provincial Board for:
a. Members of the House of Representatives
b. Provincial Officials
Members of the Board:
-Provincial Election Supervisor
-Provincial Prosecutor
-DECS Provincial Superintendent
4. District Board of Canvassers- APPLIES
ONLY IN METRO MANILA!!

5. City Board of Canvassers- for city


officials
Members:
a. City Election Registrar
b. City Prosecutor
c. Division Superintendent
6. Municipal Board of Canvassers for
Municipal Officials
a. Municipal Election Officer
b. Municipal Treasurer
c. District School Supervisor
7. Board of Election Tellers Barangay
officials
-3 public school teachers
Note also canvass and proclamation and Certificate
of Canvass and Election Returns

Note: LOWER BOARD CANVASS EVERYTHING


UNDER IT BUT CANNOT PROCLAIM!!
9. Remedies and Jurisdiction in Election Law
a. Petition Not to Give Due Course to
Certificate of Candidacy
[already discuss in Topic 6 (b) (4)]
b. Petition to Declare Failure of Elections
c. Pre-Proclamation Controversy
d. Election Protest
e. Quo Warranto
a. Petition Not to Give Due Course to
Certificate of Candidacy
b. Petition to Declare Failure of
Elections
Omnibus Election Code:
Sec. 6. Failure of election. - If, on account of force
majeure, violence, terrorism, fraud, or other analogous
causes the election in any polling place has not been held
on the date fixed, or had been suspended before the hour
fixed by law for the closing of the voting, or after the
voting and during the preparation and the transmission of
the election returns or in the custody or election results
in a failure to elect, and in any of such cases
the failure or suspension of election would
affect the result of the election, the Commission
shall, on the basis of a verified petition by any interested
party and after due notice and hearing, call for the holding
or continuation of the election not held, suspended or
which resulted in a failure to elect on a date reasonably
close to the date of the election not held, suspended or
which resulted in a failure to elect but not later than thirty
days after the cessation of the cause of such
postponement or suspension of the election or failure to
elect.
Requisites for Failure of Election:
1. There must occur any of the following:
a. election in any polling place has not been held on
the date fixed, or
b. election or had been suspended before the hour
fixed by law for the closing of the voting, or
c. after the voting and during the preparation and the
transmission of the election returns or in the custody or
canvass thereof, the election results in a failure to elect
2. The failure or suspension of election would affect
the result of the election-THIS USUALLY HAPPEN THE FAILURE OCCURRED
ONLY IN ONE PRECINCT!!. DEFINITELY THAT CANNOT AFFECT THE RESULTS OF THE
NATIONAL ELECTION! BUT THERE CAN BE A FAILURE OF ELECTION IN ONE PRECINCT IN
BARANGAY ELECTION SINCE VOTES RESULTS THERE COULD BE VERY NARROW 1 OR 2
VOTES!!
- 3. The failure was due to force majeure, violence,
terrorism, fraud, or other analogous causes the
Questions:
1. Supposed that after a peaceful voting
where a big majority voted, but almost all the
PCOS machines malfunctioned? NO! THERE CAN BE
NO FAILURE OF ELECTION! WHILE THERE IS PCOS MACHINE
MALFUNCTIONING, THE VOTES ARE STILL THERE.. IT CAN BE MANUALLY
COUNTED AND TALLIED.. OTHERWISE STATED, THE VOTES CAN STILL BE
ASCERTAINED!! IT IS STILL IN THE BALLOTS!! REQUISITES NO. 1-C DID
NOT HAPPEN!!

2. Supposed after a peaceful voting, only 3


people showed up to vote in Tagum City and 2
voted for you and one for me, is there a failure
of election? NO! THERE IS NO FAILURE OF ELECTION!! YOU WON!!
THERE IS NO REQUIREMENT THAT AT LEAST MAJORITY SHOULD HAVE
VOTED OR CAST THEIR VOTES!!.. ELECTION IS DETERMINED BY
MAJORITY OF THE VOTES CAST REGARDLESS OF HOW MANY PEOPLE
WHO ACTUALLY VOTED!!
Questions:
1. Who can file a petition?
Any interested party APPARENTLY YOU HAVE TO
BE CANDIDATE!!

2. Can the COMELEC declare a failure of


election on its own initiative? NO! IT MUST BE AT THE
INSTANCE OF THE INTERESTED PARTY!!

3. In what unit can a failure of election be


declared? THERE CAN BE A PRECINCT LEVEL DECLARATION OF
FAILURE OF ELECTION PROVIDED IT CAN AFFECT THE RESULT OF THE
ELECTION!!
c. Pre-Proclamation Controversy
Any question pertaining to or affecting
the proceedings of the Board of
Canvassers which may be raised by any
candidate or registered political party in
relation to the preparation, transmission,
receipt custody and appearance of election
returns.
In effect, it is any dispute prior to
proclamation but pertaining to decisions of
the Board of Canvassers whether or not to
include a return in the canvass or even its
composition.
-appreciation of ballots? IT DOES NOT INCLUDE APPRECIATION OF
BALLOTS BECAUSE SUCH IS DETERMINED IN THE PRECINCT LEVEL!! WHAT YOU DO IN
CANVASS HAS ONLY RELATION TO THE preparation, transmission, receipt custody and appearance
of election returns. YOU SHOULD HAVE RAISED IT IN THE PRECINCT LEVEL WHERE THE
COUNTING AND APPRECIATION OF BALLOTS ARE MADE BUT YOU CAN STILL RAISE THE
QUESTION OF APPRECIATION OF BALLOTS IN AN ELECTION PROTEST!!
(THAT THE ER IS FAKE, FORGERY, OR TAMPERED-THESE ARE PRE-PROC ISSUES IN THE OLD DAYS..
AFTER THAT THE BOC SET ASIDE THE SUBJECT ER AND THE BOC SHALL RULE ON THE
QUESTION.. IF RULED AGAINST YOU, APPEAL CAN BE HAD WHICH THE COMELEC SHALL
DECIDE)

-nuisance candidate? NOT A PRE PROCLAMATION


CONTROVERSY BECAUSE IT DOES NOT APPEAR ON THE FACE OF THE ER!!!

-qualification? NOT A PRE PROCLAMATION CONTROVERSY BECAUSE


IT DOES NOT APPEAR ON THE FACE OF THE ER!!!
Grounds: Sec. 243, OEC (GROUNDS FOR PRE-
PROCLAMATION CONTROVERSY)

1. Illegal composition or proceedings of the


Board
2. Defects in the ER, like incomplete,
tampering, falsification and discrepancies
with other copies
3. Preparation of ER under duress
4 Canvassing of fraudulent returns
Jurisdiction: Resolution No. 8804 (THIS IS NOW THE NEW
LAW)WHEN DO YOU RAISE PRE-PROCLAMATION CONTROVERSY?

A. Board or COMELEC (ON THE FOLLOWING GROUNDS)


1. Questions affecting composition (A MEMBER OF THE BOARD
CANNOT BE RELATED TO ANY CANDIDATE OR TO A LAWYER WITHIN 4TH CIVIL DEGREE)

2. Questions affecting proceedings


Appeals:
Appeal to the COMELEC within 48 hours after
filing an oral and written notice of appeal with
the BOC; decision of the Commission becomes
final after 5 days [en banc]
RA No. 9369, SEC.38. Section 15 of Republic Act No.7166 is
hereby amended to read as follows: (MORE RECENT LAW)
"SEC.15. Pre - proclamation Cases in Elections for President,
Vice-President, Senator, and Member of the House of
Representatives. - For purpose of the elections for president,
vice - president, senator, and member of the House of
Representatives, no pre-proclamation cases shall be
allowed on matters relating to the preparation,
transmission, receipt, custody and appreciation of
election returns or the certificates of canvass, as the case
may be, expect as provided for in Section 30 hereof.
However, this does not preclude the authority of the
appropriate canvassing body motu propio or upon written
complaint of an interested person to correct manifest
errors in the certificate of canvass or election before it.
PRE-PROCLAMATION CONTROVERSIES MAY BE RAISED
IN LOCAL LEVEL APPARENTLY, MATTERS RELATING
TO PREPARATIONCANNOT BE RAISED IN SO FAR
AS THE ABOVELISTED POSITIONS ARE CONCERNED!!
OTHERWISE STATED, YOU CANNOT DELAY THE
ELECTIONS FOR THAT POSITIONS BY OBJECTING THE
RETURNS!!
"Question affecting the composition or
proceedings of the board of canvassers may be
initiated in the board or directly with the
Commission in accordance with Section 19 hereof.
"Any objection on the election return before the city
or municipal board of canvassers, or the municipal
certificates of canvass before the provincial board of
canvassers or district board of canvassers in Metro
Manila Area, shall specifically notice in the minutes
of their respective proceeding.
2 Issues that may be raised:
1. Questions affecting the composition
and proceedings of the Board
2. Any objection on the election return

(THIS MUST BE RECORDED ONLY IN


THE MINUTES IT CANNOT DELAY
THE CANVASS)!!
RA No. 9369, SEC. 30. Section 31 of Republic Act No. 8436
is hereby amended to read as follows:
"SEC. 37. Rules and Regulations. - The Commission shall
promulgate rules and regulation for the implementation and
enforcement of this Act.
"Notwithstanding the foregoing canvassing procedure, the
Commission is authorized to prescribe other manner or
procedure for the canvassing and consolidation of votes as
technology evolves, subject to the provisions of Section 7
hereof on the minimum capabilities of the AES and other
pertinent laws."
COMELEC RESOLUTION No.8809, March 10, 2010-
Sec. 24. Issuesthat may be raised during the
consolidation/canvass. Issues affecting the composition or
proceedings of the Boards may be initiated by filing a verified petition before
the Board or directly with the Commission.
If the petition is filed directly with the Board, its decision may be appealed to
the Commission within three (3) days from issuance thereof. However, if
commenced directly with the Commission, the verified petition shall be filed
immediately when the board begins to act illegally, or at the time of the
appointment of the member of the board whose capacity to sit as such is
objected to.
There shall be no pre-proclamation cases on
issues/controversies relating to the
generation/printing, transmission, receipt and custody
and appreciation of ERs or the COCs.
TAKE NOTE THE HEREUNDER!!!
APPARENTLY, IF YOU LOOK AT THE RESOLUTION, NO MORE PRE-
PROCLAMATION IS ALLOWED!! NO MORE OBJECTION ON THE
ELECTION RETURNS!!
THE ONLY THING THAT CAN BE SUBJECT TO PRE-PROCLAMATION
CONTROVERSY IS THE Issues affecting the composition or
proceedings of the Boards WHICH APPLIES TO ALL POSITIONS AND
ILLEGAL PROCEEDINGS OF THE BOARD!!
SUMMARY
2 Issues that may be raised:
1. Questions affecting the composition
and proceedings of the Board
THERE IS NO MORE objection on the
election return ALLOWED!!

(THIS MUST BE RECORDED ONLY IN


THE MINUTES IT CANNOT DELAY
THE CANVASS)!!
Baterina v. COMELEC, 205 SCRA 4
After the Board denied his protest against the
inclusion of certain ERs, protestant filed a notice of
appeal with the Board. With the COMELEC, he filed
a Petition Contesting Legality of Procedings of the
BOC with Motion to Restrain Canvassing and
Proclamation. The Board proceeding with the
Canvass and proclaimed his opponent as Governor.
Correct? HELD: SOMETHING IS WRONG WITH
THE PROCEDURE!! IF YOU RAISE QUESTIONS
RELATING TO ER WITH THE BOARD, YOU WAIT
THE LATTER TO RESOLVE THE SAME.
COMELEC Resolution No. 8804, March 22, 2010
Rule 3: Section 1. Pre-Proclamation Controversy. - A pre-
proclamation controversy refers to the proceedings of the
board of canvassers which may be raised by any candidates
or by any registered political party or coalition of political
parties, or by any accredited and participating party list group,
before the board or directly with the Commission. It covers
only two issues:
a. Illegal composition of the Board of Canvassers
(BOC);
b. Illegal proceedings of the BOC.
The basis of the canvass shall be electronically transmitted
results.
Section 2. Jurisdiction of the Commission in Pre-
Proclamation Controversies. - COMELEC has exclusive
jurisdiction in pre-proclamation controversies arising
from national, regional pr local elections.
A pre-proclamation controversy may be raised by any
candidate or by any registered political party,
organization, or coalition of political parties before the
BOC, or directly with the Commission.
Issues affecting the composition or proceedings of the
Boards may be initiated by filing a verified petition before
the Board or directly with the Commission.
Rule 4:
Illegal Composition of the
Section 1.
Board of Canvassers. - There is illegal
composition of the BOC when, among other similar
circumstances, any of the members do not possess
legal qualifications and appointments. The
information technology capable person required to
assist the BOC by Republic Act No. 9369 shall be
included as among those whose lack of qualifications
may be questioned.

TO DATE, ONLY THE COMELEC CAN APPOINT


THE MEMBERS OF THE BOC!!- THIS CAN BE
SUBJECT TO THE ISSUE OF APPOINTMENTS!!
Section 2. Illegal
Proceedings of the
Board of Canvassers. - There is illegal
proceedings of the BOC when the canvassing is a
sham or mere ceremony, the results of which are
pre-determined and manipulated as when any of the
following circumstances are present:
a) precipitate canvassing; (MEANING, THE TIME FOR VOTING
HAS NOT YET LAPSE BUT YOU STARTED TO CANVASS)
b) terrorism;
c) lack of sufficient notice to the members of the
BOC's; LAWYERS SHOULD BE NOTIFIED
d) Improper venue (CANVASSING IN MILITARY CAMP)!!
Section 3. Where and How Commenced.
- Questions affecting the composition or
proceedings of the BOC may be initiated in
the BOC or directly with the Commission,
with a verified petition, clearly stating the
specific ground/s for the illegality of the
composition and/or proceedings of the
board.
B. Board of Canvassers
- Questions affecting the preparation,
transmission, receipt and custody and
appreciation of election returns and certificates
of canvass. THIS CANNOT BE ANYMORE
SUBJECT TO PRE-PROC CONTROVERSY
REVIEW WITH OTHER SLIDES!!
Allarde v. COMELEC, ____ SCRA 633
Petitioner filed with the COMELEC A petition
for suspension of canvassing and annulment of
results of the canvass on the ground of
massive fraud, falsified returns, vote buying,
statistical improbability. Is it proper for a pre-
proclamation controversy?
IN THE OLD DAYS, SOME ARE PROPER AND SOME ARE NOT!!
FALSIFIED RETURNS STATISTICAL IMPROBABILITY CAN BE
SUBJECT TO PRE-PROCLAMATION CONTROVERSY AS THESE CAN
BE DETERMINE IN THE FACE OF THE ER!! HOWEVER, MASSIVE
FRAUD AND VOTE BUYING CANNOT BE SUBJECT TO THAT AS IT
CANNOT BE SEEN IN THE ER!!
2011 Bar Question: 55. Xian and Yani ran for
Congressman in the same district. During the
canvassing, Yani objected to several returns which
he said were tampered with. The board of
canvassers did not entertain Yani's objections for
lack of authority to do so. Yani questions the law
prohibiting the filing of pre-proclamation cases
involving the election of Congressmen since the
Constitution grants COMELEC jurisdiction over all
pre-proclamation cases, without distinction. Is Yani
correct?
A. Yes, the Constitution grants jurisdiction to
COMELEC on all pre-proclamation cases,
without exception.
B. No, COMELECs jurisdiction over pre-
proclamation cases pertains only to
elections for regional, provincial, and city
officials. EVEN FOR THE POSITIONS OF MAYORS AND OTHER LOCAL
OFFICIALS, THERE IS NO MORE PRE PROCLAMATION CONTROVERSIES
BASED ON TRANSMISSIONS, RECEIPTS, CUSTODY,.. OF ELECTION RESULTS
EXCEPT 1. ILLEGAL COMPOSITION OF BOC AND 2. ILLEGAL PROCEEDINGS!
C. No, COMELECs jurisdiction over pre-
proclamation cases does not include those that
must be brought directly to the courts.
D. Yes, any conflict between the law and the
Constitution
Pre-proclamation not allowed:
1. President
2. Vice-President
3. Senator
4. House of Representatives
Exception, when allowed: Sec. 15, RA 7166
However, this does not preclude the authority of
the appropriate canvassing body motu proprio or
upon written complaint of an interested person to
correct manifest errors in the certificate of canvass or
election returns before it.
1. manifest errors
2. composition and proceedings of the Board
What is a manifest error? Examples:
1. Double entry [Duremdes v. COMELEC,
178 SCRA 748
2. Mistake in copying of figures in the
Statement of Votes or Certificates of
Canvass (THIS HAS BEEN MADE AS A TOOL IN
OPERATION DAGDAG-BAWAS)
What is the concept of statistical
improbability in pre-proclamation controversy?
Dimaporo v. COMELEC, 186 SCRA 772 (1990)
If the returns show unique uniformity of all
votes, being equal to the number of registered
voters and all voting uniformly for the same
candidates, and others getting zero, it is
statistically improvable and obviously
manufactured and must be excluded from the
canvas. [res ipsa loquitor] [Has the concept still any
use?]
EX. THE 200 VOTES CAST WAS GIVEN ONLY TO A 1 CANDIDATE
LEAVING NO VOTE TO THE OTHER!! ALSO WHEN THERE ARE
3OO WHO ACTUALLY VOTED WHEN THERE IS ONLY 200 NO. OF
REGISTERED VOTERS
Pimentel III v. COMELEC, 548 SCRA 169 (2008)
Senatorial candidate Pimentel sought to restrain the
Commission on Elections, then sitting as the National Board
of Canvassers, from continuing with the canvass of the
returns from the province of Maguindanao to determine the
winner of the 12th seat for the Senate. Before the Supreme
Court, he alleged the illegality of the proceedings and
questioned the inclusion of falsified election returns. May the
legality of the proceedings before the NBC be challenged
before proclamation?
.
Held: No. Section 15 of Republic Act No. 7166, as amended by
Republic Act No. 9369, prohibits any pre-proclamation
case relating to the preparation, transmission, receipt,
custody and appreciation of election returns or
certificates of canvass, was prohibited in elections for
President, Vice-President, Senators and Members of the
House of Representatives. Proceedings which may delay
the proclamation of the winning candidate beyond the date
set for the beginning of his term of office must be avoided,
considering that the effect of said delay is, in the case of
national offices for which there is no hold over, to leave the
office without any incumbent. It may well be true that public
policy may occasionally permit the occurrence of "grab the
proclamation and prolong the protest" situations. For those
who disagree with that public policy, the appropriate recourse
is not to ask this Court to abandon case law, which merely
interprets faithfully existing statutory norms, to engage in
judicial legislation. The remedy is the ask Congress to
amend the law

NO PRE-PROCLAMATION TO THOSE POSITIONS!! EVEN PIMENTEL


PREDICATED THE PREPROC CONTROVERSY ON ILLEGAL
PROCEEDINGS, SC DID NOT CONSIDER THE SAME
A valid pre-proc delays proclamation. For how long?
Sec. 17, RA 7166: All pre-proclamation case pending
before the Commission shall be deemed terminated
at the beginning of the term of the office involved
and the rulings of the boards of canvassers
concerned shall be deemed affirmed without
prejudice to the fling of a regular election protest by
the aggrieved party. However, proceedings may continue
when on the basis of evidence thus far presented the
Commission determines that the petition appears meritorious
and accordingly issues an order for the proceedings to
continue or when appropriate order ahs been issued by the
Supreme Court in a petition for certiorari.

GENERALLY, ALL PRE-PROCLAMATION CONTROVERSIES


ARE DEEMED TERMINATED ON JUNE 3O WITH THE
EXCEPTION OF THE ABOVE!
Exceptions: It may proceed-
1. when the Commission determines that
the petition appears meritorious/issues an
order for the proceedings to continue
2. when an appropriate order has been
issued by the Supreme Court in a petition
for certiorari.
Can the COMELEC annul a proclamation?
Duremdes v. COMELEC, 178 SCRA 748:
YES! SINCE THE BOC IS UNDER THE CONTROL OF THE COMELEC, IT
CAN ANNUL THE PROCLAMAITON MADE BY THE FORMER!!

The BOC under the control of the COMELEC.


If the proclamation is void, it is as if there is no
proclamation.
[Despite pending protests over some ERs, the
Board proclaimed a winner without COMELEC
authority.]
Resolution No. 8804: Rule 4
Section 6. Illegal Proceedings Discovered after
Proclamation. - If the illegality of the proceedings of the
BOC is discovered after the official proclamation of the
supposed results, a verified petition to annul the
proclamation may be filed before COMELEC within ten (10)
days after the day of proclamation. Upon receipt of the
verified petition, the Clerk of the Commission shall have the
same docketed and forthwith issue summons to the parties to
be affected by the petition, with a directive for the latter to file
their answer within five (5) days from receipt. Thereafter the
case shall be deemed submitted for resolution, which shall not
be later seven (7) days from receipt of the answer.
Benito v. COMELEC, 235 SCRA 437
While the canvassing was going on, Murad, who
was running for Mayor of Balabagan was killed in an
ambush. He won but since he was dead, the Board
proclaimed Benito, his opponent. The COMELEC
annulled the proclamation and ordered the Board
to make a new COC indicating that Murad won,
but is dead. Correct?
Librados v. Casar, 234 SCRA 13:
To avoid alleged bloodshed and revival of
Muslim-Christian conflict and MTC judge
in Lanao del Norte issued an order
restraining the canvassing of ER from a
precinct until the COMELEC or the RTC
could act on a petition filed. Valid?
NO! THE MTC HAS NO JURISDICTION TO ISSUE
INJUNCTION!
Bar Question, 1995, No. 6:
Due to violence and terrorism attending the casting
of votes in a municipality in Lanao del Sur during
the last May 8, 1995 elections, it became
impossible to hold therein free, orderly and
honest elections. Several candidates for
municipal positions withdrew from the race. One
candidate for Mayor petitioned the COMELEC
for the postponement of the elections and the
holding of special elections after the causes of
such postponement or failure of elections shall
have ceased.
1. How many votes of the COMELEC
commissioners may be cast to grant the petition?
Explain. IF THE COMELEC DECIDES A CASE IN DIVISION, THE
VOTE OF 2 WILL NOT BE BINDING!! IF THE COMELEC EN BANC
DECIDES, THE LEAST NO. OF COMMISSIONERS WHO CAN SIT IS 4..
HENCE THE VOTE OF 3-1 WILL DO!!
2. A person who was not a candidate at the time of
the postponement decided to run for an elective
position and filed a certificate of candidacy prior to
the special elections. May his certificate of
candidacy be accepted? Explain. NO! THE REASON IS THAT
NO PERSON SHALL BE ALLOWED TO FILE A COC BEYOND THE
DEADLINE.. ONLY THOSE WHO WERE ABLE TO FILE COC ON TIME FOR
THE REGULAR ELECTION CAN FILE COC IN CASE THERE IS SPECIAL
ELECTION!!
3. Suppose he ran as a substitute for a candidate
who previously withdrew his candidacy, will your
answer be the same? Explain. IT WILL BE DIFFERENT
NOW!! THIS IS ONLY THE INSTANCE WHERE A PERSON
SUBSTITUTING ONE WHO WITHDREW HIS CANDIDACY CAN FILE
COC NOT LATER THAN MIDDAY OF THE ELECTION DAY!!
OEC, Sec. 5. Postponement of election. -
When for any serious cause such as violence, terrorism,
loss or destruction of election paraphernalia or records,
force majeure, and other analogous causes of such a
nature that the holding of a free, orderly and honest
election should become impossible in any political
subdivision, the Commission, motu proprio or upon a
verified petition by any interested party, and after due
notice and hearing, whereby all interested parties are
afforded equal opportunity to be heard, shall postpone
the election therein to a date which should be reasonably
close to the date of the election not held, suspended or
which resulted in a failure to elect but not later than thirty
days after the cessation of the cause for such
postponement or suspension of the election or failure to
elect.
WHO CAN FILE?
1. THE COMELEC MOTU PROPIO
2. ANY INTERESTED PARTY UPON VERIFIED PETITION!!
THIS CAN BE DISTINGUISHED FROM FAILURE OF ELECTION WHERE
ONLY THE INTERESTED PARTY UPON VERIFIED COMPLAINT CAN
FILE!! THE COMELEC CANNOT MAKE IT MOTU PROPRIO
See, Cua v. COMELEC, 156 SCRA 582
Votes Required:

1. Division 2/1
2. En Banc -3/2
d. Election Protests:
An election protest (ELECTION CONTEST)
proposes to oust the winning candidate from office. It is strictly
a contest between the defeated and the winning candidates,
based on the grounds of electoral frauds and irregularities,
to determine who between them has actually obtained the
majority of the legal votes cast and is entitled to hold the
office. It can only be filed by a candidate who has duly filed a
certificate of candidacy and has been voted for in the
preceding elections. [Lokin v. COMELEC, June 22, 2010]

-it can be pursued only after one candidate has been


proclaimed by the appropriate Board of Canvassers.

TAKE NOTE THE DISTINCTION OF ELECTION PROTEST


AND QUO WARRANTO.. BOTH ARE REMEDIES THAT MAY
BE AVAILED ONLY AFTER PROCLAMATION!!
Nature: (OF ELECTION PROTEST)
1. It is neither criminal, nor civil, nor administrative but a
special statutory proceedings.
2. It does not involve only the personal interests of rival
candidates, but also public interests, as it involves the
determination of the will of the people [no abated by death,
[except Poe v. GMA] (HENCE DEATH DOES NOT RESULT TO
ABANDONMENT OF PROTEST WITH THE SINGLE EXCEPTION IN THE
CASE OF POE VS. GMA FOR THE REASON THAT THERE WAS NO VALID
SUBSTITUTION OF THE PERSON OF FPJ BY SUSAN ROCES.)
3. Rules regulating it are liberally construed so that technical
and formal objections may be disregarded to ascertain the
will of the people [Kahilan v. Tabalba, 230 SCRA 208]
A. Jurisdiction (OVER ELECTION PROTEST)
President/V-President PET 30/10-QW

Senators SET 15/10-QW

Congressmen HRET 15/15-QW

Reg/Prov/City Official COMELEC 10/10

Municipal Officials RTC 10/10

Barangay Officials MTC/MCTC 10/10


B. Appellate Jurisdiction
1. MTC and RTC to COMELEC (FROM MTC IS APPEALED
DIRECTLY TO COMELEC.. SAME WITH RTC DIRECT TO THE COMELEC)
RA 6679 which authorizes appeals from MTC to
RTC is unconstitutional [Flores v, COMELEC, 184
SCRA 848]
2. MTC to RTC
Cases heard by the MTC involving Kabataang
Barangay officials should be to the RTC. [Mercado
v. Board, 243 SCRA 423]
In all cases, appeals to the COMELEC is 5 days.
MR is prohibited.
3. COMELEC
Decisions of these agencies may be
reviewed by the Supreme Court on certiorari
within 30 days as provided in the Constitution.

SET/HRET-60 DAYS BASED ON GRAVE


ABUSE OF DISCRETION!!
Grounds for Election Protest:
1. Fraud
2. terrorism, (NOTE THAT YOU CANNOT RAISE TERRORISM IN A PRE-PROC
AS THE BOC HAS POWER TO DETERMINE THE SAME BUT IF YOU LOST, YOU CAN
FILE AN ELECTION PROTEST DEMANDING RECOUNT OR HOLDING OF NEW
ELECTIONS!!)

3. Illegal acts committed before, during or after


the casting and
4. counting of votes
In an election protest:
1. Can you raise issue to authenticity of
ballots? YES! YOU CAN RAISE IT .. YOU CAN EVEN DEMAND FOR RECOUNT!!
IF IT TURNS OUT THAT THE BALLOTS THERE ARE FAKE, YOU CAN EVEN DEMAND
TO EXCLUDE THEM FROM COUNTING

2. That unregistered voters were allowed to


vote? YES IT CAN BE DETERMINED!! BECAUSE ONLY REGISTERD
VOTERS CAN VOTE!! FOR INSTANCE, THIS CAN BE DEMONSTRATED AS
WHEN THERE ARE ONLY 200 REGISTERED VOTERS WHEN THERE ARE
ACTUALLY 499 VOTERS!!! HENCE, THERE ARE REALLY UNREGISTERED
VOTERS THERE, YOU CAN ANNUL THE RESULT THERE!!!

3. That disqualified people were allowed to


register? THIS IS NOT ALLOWED THIS TIME.. NOTE THAT THE LIST OF
VOTERS IS CONCLUSIVE!! YOU SHOULD HAVE FILED PETITION FOR
INCLUSION AND EXCLUSION PROCEEDINGS!! THIS CANNOT BE A GROUND
FOR ELECTION PROTEST!! OR ANNULMENT OF LIST OF VOTERS!!
Can there be execution pending appeal? YES!! UNDER
Good reasons, under Rule 39 of the Rules of Court,
not COMELEC Rules. Good reasons:
1. Term is about to end;
2. Public interest and
3. Filing of bond [required]
SUPPOSE I LOST THE ELECTION, AND I FILED AN ELECTION PROTEST BEFORE
THE COMELEC WHERE IT WAS RULED THAT I WON.. OBVIOUSLY YOU WILL
APPEAL THIS TIME I CAN FILE A PETITION FOR EXECUTION PENDING
APPEAL SO THAT I CAN HOLD THE POSITION BEING DECLARED THE
WINNER IN THE PROTEST!!

When to file? During period to file an appeal only.


Relampagos v. Cumba, 243 SCRA 690.. IF THE COMELEC
RENDERS THAT DECISION, YOU CAN ONLY FILE THE PETITION THERE!! YOU FILE IT
BEFORE THE TRIBUNAL WHICH RENDERED THE DECISION IN FAVOR OF YOU!!! YOU
CANNOT FILE IT AFTER THE LAPSE OF PERIOD TO APPEAL!!
PET Rules: Rule 14.
Election protest.
- The registered candidate for President or Vice-
President of the Philippines who received the
second or third highest number of votes may
contest the election of the President or Vice-
President, as the case may be, by filing a verified
election protest with the Clerk of the Presidential
Electoral Tribunal within thirty days after
the proclamation of the winner. (R14a)
THIS IS WHY SUSAN ROCES WAS NOT ALLOWED TO SUBSTITUTE FPJ IN
AN ELECTION PROTEST!!! THE PROPER PARTY SHOULD BE THE
REGISTERED CANDIDATE WHO RECEIVED THE SECOND OR THIRD
HIGHEST NUMBER OF VOTES!!
PET Rules: Rule 16.
Quo warranto.
- A verified petition for quo warranto contesting the
election of the President or Vice-President on the
ground of ineligibility or disloyalty to the Republic
of the Philippines may be filed by any registered voter
who has voted in the election concerned within ten
days after the proclamation of the winner. (R15a)
NOTE THAT ELECTION PROTEST CAN BE FILED ONLY BY A CANDIDATE
WHO RECEIVED THE SECOND OR THIRD HIGHEST NUMBER OF VOTES
WHILE QUO WARRANTO CAN BE FILED BY ANY REGISTERED VOTER
PROVIDED HE HAS VOTED IN THE ELECTION CONCERNED!!
ANY VOTER IS ALLOWED TO FILE QW BECAUSE THIS INVOLVES THE
QUALIFICATION OR ELIGIBILITY OF THE ELECTED OFFICIAL.. SO ANY
REGISTERED VOTER HAS INTEREST!! AS DISTINGUISHED IN ELECTION
PROTEST!!
SET Revised Rules
RULE 14.Election Protest. A verified petition contesting the
election of any Member of the Senate shall be filed by any candidate
who has duly filed a certificate of candidacy and been voted for the
office of Senator within fifteen (15) days after the proclamation of the
protestee. No joint election protest shall be admitted, but the Tribunal,
for good and sufficient reasons, may consolidate individual protests
and hear and decide them jointly. chanrobles virtual law library
RULE 15.Quo Warranto. A verified petition for quo warranto
contesting the election of a Member of the Senate on the ground of
ineligibility or disloyalty to the Republic of the Philippines shall be
filed by any voter within ten (10) days after the proclamation of the
respondent.
Quo Warranto-
A special civil action for quo warranto refers to
questions of disloyalty to the State, or of
ineligibility of the winning candidate. The
objective of the action is to unseat the ineligible
person from the office, but not to install the
petitioner in his place. Any voter may initiate the
action, which is, strictly speaking, not a contest
where the parties strive for supremacy. [Lokin v.
COMELEC, June 22, 2010] [3 other situations were
quo warranto is proper]
UNDER THE RULES ON SPECIAL PROCEEDINGS, QUO WARRANTO MAY BE FILED IN
THE FOLLOWING:
1. to unseat the ineligible person from the office
2. TO QUESTION THE EXISTENCE OF A DE FACTO LGU OR PUBLIC CORPORATION
3. TO QUESTION A DEFECTIVELY FORMED CORPORATION
4. TO CHALLENGE A PUBLIC OFFICAL WHO IS WITHOUT PROPER TITLE, ELECTIVE
OR APPOINTIVE! NOTE ALSO THAT IN PUBLIC APPOINTIVE OFFICE, QUO
WARRANTO MAY BE FILED ONLY A PERSON CLAIMING BETTER RIGHT TO THE
POSITION WHILE IN ELECTIVE OFFICE, IT MAY BE FILED BY ANY REGISTERED
VOTER
Quo Warranto vs. Election Protest DISTINCTION!!
1. As to ground, election protest pertains to
disputes connected with the conduct of election,
counting of votes, and canvass of votes, while QW
pertains to the eligibility of the winning candidate
sought to be disqualified; (IF THERE IS NO PROCLAMATION,
THE REMEDY IS DISQUALIFICATION)!
2. As to who can initiate, an election protest can be
filed only by a losing candidate, but a quo warranto
may be filed by a candidate or a voter;
3. As to effect, an election protest can result to
the proclamation of the protestant, but a quo
warrantO cannot result to proclamation of the
person who filed the case.
THESE ARE GROUNDS FOR ELECTION
PROTEST!!
-recount/canvass-
-vote-buying
-illegal election propaganda
Questions:
1. Can you file both? Luison v. Garcia, May
20, 1957 YES! EP AND QW CAN BE FILED SIMULTANEOUSLY BECAUSE
ASIDE FROM THE FACT THAT YOU CHEATED DURING THE ELECTIONS, YOU ARE
ALSO DISQUALIFIED TO HOLD SUCH OFFICE!!

2. Can you join them? De la Rosa v. Yonson,


52 Phils. 446 NO! YOU HAVE TO FILE THEM SEPARATELY!!
3. What happens if you join them? Pascal v.
Ramos, 81 Phil 30. YOU WILL BE ORDERED TO SPLIT THE TWO
DIFFERENT CAUSES OF ACTION!!
Periods:
The period to file a petition (10 DAYS) for
quo warranto or election protest is
suspended by:
1. a valid pre-proclamation controversy
2. petition to suspend or annul
proclamation.
Period: Frivaldo v. COMELEC,
The period (OF 10 DAYS FROM
PROCLAMATION) may not be observed where
the ground is:
1. arose after proclamation; or (THIS HAPPENS WHEN A
SENATOR IN THE MIDDLE OF HIS TERM ACQUIRED FOREIGN CITIZENSHIP.. HERE THE PERIOD
OBVIOUSLY DO NOT APPLY AND NOTE THAT THE REQUIREMENT OF CITIZENSHIP IS A
CONTINUING REQUIREMENT)

2. evidence is discovered late.(THIS HAPPENS WHEN YOU HAVE


BEEN ALIEN ALL ALONG BUT IT WAS ONLY DISCOVERED AFTER PROCLAMATION OR IN THE
MIDDLE OF YOUR TERM) THE REQUIREMENT OF CITIZENSHIP IS A CONTINUING REQUIREMENT

Limkaichong v. COMELEC, 583 SCRA 1 (2009)


(PERIOD OF 10 DAYS Does not apply to citizenship (AS
WELL AS RESIDENCY AS THESE ARE CONTINUING REQUIREMENTS).

Loong v. COMELEC, 216 SCRA 768 (1992)


DOES NOT APPLY TO OR not to disloyalty to the Republic
..HOWEVER, [THE PERIOD APPLIES TO age]- AFTER THE LAPSE OF 10 DAYS, YOU
CANNOT FILE IT ANYMORE!!
Effect of proclamation on petition for
disqualification:
1. All pending appeals with the Supreme
Court/COMELEC are dismissed if they involve
members of Congress or the President and
Vice-President; THE PRINCIPLE HERE IS THAT SET, HRET OR THE PET
IS THE SOLE JUDGE ON MATTERS RELATING TO THE QUALIFICATIONS OF
MEMBERS OF CONGRESS OR THE PRESIDENT OR VP AFTER HAVING BEEN
PROCLAIMED AS THE CASE MAY BE!! SUCH CASES SHALL HAVE TO BE DISMISSED
AND A NEW PETITION SHALL BE FILED WITH THE PROPER TRIBUNAL

2. Those before the COMELEC and the


Supreme Court involving local officials?
IN THE ABSENCE OF THE LAW PROVIDING A SOLE JUDGE ON SUCH
MATTERS RELATING TO DISQUALIFICATION OF A LOCAL ELECTIVE
OFFICIAL, IT IS BELIEVED THAT THE PENDING DISQUALIFICATION
CASE BEFORE THE COMELEC SHALL CONTINUE!!
Supreme Court Rules on Election Protests/Quo
Warranto before MTC and RTC
SEC. 10. COMELEC judgment in disqualification
case. - A decision of the Commission on Elections,
either in division or en banc, in a disqualification case
shall not bar the filing of a petition for quo warranto
based on the same ground, except when the
Supreme Court has affirmed the COMELEC
decision.

MEANING THE DECISION OF THE COMELEC DOES


NOT CONSTITUTE RES JUDICATA!! NOTE THE
EXCEPTION!!
4. ______________________ Despite lingering questions about
his Filipino citizenship and his one-year residence in the district,
Gabriel filed his certificate of candidacy for congressman before the
deadline set by law. His opponent, Vito, filed a case to disqualify him
before the Commission on Election. The COMELEC decided in
Gabriels favor, which decision became final. During the election,
Gabriel won. Vito filed a case before the House of Representatives
Electoral Tribunal raising the same issues of citizenship and
residency. The HRET should: [2 points]
a. Dismiss the case for lack of jurisdiction
b. Dismiss the case for forum shopping
c. Refer the case to the Supreme Court
d. Assume jurisdiction because it is the sole judge of such
contests
Fernandez v. HRET, 608 SCRA 733 (2009)
Effect of Disqualification: After Election
Gonzales v. COMELEC, 644 SCRA 761 (2011)
Ineligibility of the candidate receiving the highest
number of votes does not entitle the one getting
the second highest number of votes. Exception is
allowed if the two requisites are present:
1) the one who obtained the highest number of votes is
disqualified and
2) the electorate was fully aware of the fact so as to
bring such awareness within the realm of notoriety,
but would nonetheless cast their votes in favor of the
ineligible candidate. NOTORIOUS OR WIDELY KNOWN TO BE
DISUALIFIED AND YET ELECTORATES STILL VOTED FOR HIM!!

FOR EXAMPLE, WE KNOW PACQUIAO IS ONLY 32 YEARS OLD BUT HE RAN


FOR VICE PRESIDENT AND WON THIS TIME, IF HE IS DECLARED
DISQUALIFIED, THE ONE RECEIVING THE HIGHEST NUMBER OF VOTES IS
ENTITLED TO SUCH POSITION!!
Can one obtain damages in an election protest
or quo warranto?
1. Moral damages? [metal anguish, sleepless
nights, besmirched reputation] NEVER!!!
2. Actual damages? expenses, attorneys fees
in accordance with law YES HE IS ALLOWED WITH THIS
IN ACCORDANCE WITH THE CIVIL CODE!

Malaluan v. COMELEC, 254 SCRA 400 (1996)


Bar Question, 2006: No. 5
Differentiate an election protest from an
action for quo warranto. 2.5% REFER TO THE
DISTINCTION LAID DOWN BY THE AUTHORITY!!
Bar Question, 2001: No. XVII
Under the Omnibus Election Code, briefly
differentiate an election protest from a quo
warranto case, as to who can file the case,
and the respective grounds therefor.
1. As to ground, election protest pertains to disputes connected with the
conduct of election, counting of votes, and canvass of votes, while QW pertains
to the eligibility of the winning candidate sought to be disqualified; (IF THERE IS NO
PROCLAMATION, THE REMEDY IS DISQUALIFICATION)!
2. As to who can initiate, an election protest can be filed only by a losing
candidate, but a quo warranto may be filed by a candidate or a voter;
3. As to effect, an election protest can result to the proclamation of the
protestant, but a quo warrantO cannot result to proclamation of the person who
filed the case.
Bar Question, 1997, No. 17:

State how (a) pre-proclamation controversies,


on the one hand, and (b) election protests, on
the other hand, are initiated, heard and finally
resolved.
1. THE FORMER IS FILED BEFORE PROCLAMATION WHILE THE
LATTER MUST BE FILED AFTER PROCLAMATION!!
2. YOU FILE A PROCLAMATION BEFORE THE BOC OR THE COMELEC
AS SOON AS THE GROUND BECOMES APPARENT WHILE THE
LATTER MUST BE FILED BEFORE THE MTC, RTC COMELEC AS THE
CASE MAY BE
Bar Question, 2005, IX -
(2.) Manuel was elected Mayor of the Municipality of Tuba in the elections
of 1992, 1995 and 1998. He fully served his first two terms, and during his
third term, the municipality was converted into the component City of Tuba.
The said charter provided for a hold-over and so without interregnum
Manuel went on to serve as the Mayor of the City of Tuba. In the 2001
elections, Manuel filed his certificate of candidacy for City Mayor. He
disclosed, though, that he had already served for three consecutive terms
as elected Mayor when Tuba was still a municipality. He also stated in his
certificate of candidacy that he is running for the position of Mayor
for the first time now that Tuba is a city. Reyes, an adversary, ran
against Manuel and petitioned that he be disqualified because he had
already served for three consecutive terms as Mayor. The petition was not
timely acted upon, and Manuel was proclaimed the winner with 20,000
votes over the 10,000 votes received by Reyes as the only other candidate.
It was only after Manuel took his oath and assumed office that the
COMELEC ruled that he was disqualified for having ran and served for
three consecutive terms. (NOTE THAT THE DISQUALIFICATION CONTINUES THE
PROCLAMATION OF MANUEL DID NOT RENDER THE PETITION MOOT AND ACADEMIC)
(c) Assuming that Manuel is not an eligible candidate, rebut Reyes claim
that he should be proclaimed as winner having received the next higher
number of votes. (5%)HELD: IT HAS BEEN SETTLED THAT Ineligibility of the candidate receiving
the highest number of votes does not entitle the one getting the second highest number of votes. Exception is
allowed if the two requisites are present:
1) the one who obtained the highest number of votes is disqualified and
2) the electorate was fully aware of the fact so as to bring such awareness within the realm of notoriety, but would
nonetheless cast their votes in favor of the ineligible candidate
IN THE CASE AT BAR, THE DISQUALIFICATION OF MANUEL IS NOT REALLY THAT NOTORIOUS AS TO BE
CONSIDERED AN EXCEPTION TO THE GENERAL RULE!
Bar Question, 1996, No. 13:
A and B were the only candidates for mayor of Bagaa,
Bulacan, in the 1995 local elections. A obtained 10,000 votes
as against 3,000 votes of B. In the same elections, X got the
highest number of votes among the candidates for SB of the
same town. A died on the day before his proclamation.
(1) Who should the Board of Canvassers proclaim as elected
mayor, A, B or X. THE BOC SHOULD PROCLAIM A AS MAYOR THE RULE
IS THAT IF THE RESULTS HAS BEEN ALREADY DETERMINED AND THE WINNER DIES
BEFORE HE COULD BE PROCLAIMED THE BOC MUST PROCLAIM THE WINNER OR
THAT DEAD PERSON AND INDICATE THAT HE DIED
(2) Who is entitled to discharge the office of the mayor, B or
X? IT WILL BE NOW THE ELECTED VICE MAYOR WHO IS ENTITLED TO DISCHARGE
THE OFFICE OF THE MAYOR BY VIRTUE OF SUCCESSION!!
Bar Question, 2003, No. 8

In the municipal mayoralty elections in 1980,


the candidate who obtained the highest
number of votes was subsequently declared to
be disqualified as a candidate who obtained
the second highest number of votes to ask
and to be proclaimed winner of the elective
office? Reasons.
IT HAS BEEN SETTLED THAT Ineligibility of the candidate receiving the
highest number of votes does not entitle the one getting the second highest
number of votes. Exception is allowed if the two requisites are present:
1) the one who obtained the highest number of votes is disqualified and
2) the electorate was fully aware of the fact so as to bring such awareness
within the realm of notoriety, but would nonetheless cast their votes in
favor of the ineligible candidate
Bar Question, 2008: - X - The 1st Legislative District of
South Cotabato is composed of General Santos and three
municipalities including Polomolok. During the canvassing
proceedings before the District Board of Canvassers in
connection with the 2007 congressional election, candidate
MP objected to the certificate pf canvass for Polomolok
on the ground that it was obviously manufactured,
submitting as evidence the affidavit of a mayoralty
candidate of Polomolok. The certificate of canvass for
General Santos was likewise objected to by MP on the basis
of the confirmed report of the local NAMFREL that 10 election
returns from non-existent precincts were included in the
certificate. MP moved that the certificate of canvass for
General Santos be corrected to exclude the the result from the
non-existent precincts. The District Board of Canvassers
denied both objections and ruled to include the certificate of
canvass. May MP appeal the rulings to the COMELEC?
Explain. (6%)
NO! MP CANNOT APPEAL THE RULINGS: PRE-PROCLAMATION
CONTROVERSIES RELATING TO ELECTIONS RETURNS IS NOT ALLOWED
IN THE POSITIONS OF CONGRESSMAN, SENATOR, VP AND PRESIDENT..
Bar Question, 2011
37. Pre-proclamation controversies shall be
heard
A. summarily without need of trial.
THE PROCEEDINGS IS SUMMARY IN NATURE

B. through trial by commissioner.


C. ex parte.
D. through speedy arbitration.
Bar Question, 2001, No. 16
In an election protest involving the position of
Governor of the Province of Laguna, between A, the
protestee, and B the protestant, the First Division of
the COMELEC rendered a decision upholding Bs
protest.
Can A file a petition for certiorari with the Supreme
Court under Rule 65 of the Rules of Court from a
decision of the COMELEC First Division? If yes,
why? If not, what procedural step must he
undertake first?
NO! ALL DECISIONS OF THE COMELEC DIVISION IN ITS QUASI-JUDICIAL
FUNCTION MUST BE APPEALED THROUGH MOTION FOR
RECONSIDERATION BEFORE THE COMELEC EN BANC!! COMELEC EN
BANC HAS APPELLATE JURISDICTION TO THE DECISION OF COMELEC
DIVISION IN THE EXERCISE OF ITS QUASI-JUDICIAL FUNCTIONS! YOU
CANNOT GO TO SC WITHOUT FILING MR WITH COMELEC ENBANC
Bar Question, 1996, No. 14:
(a) As counsel for a protestant, where will you file
an election protest involving a contested elective
position in:
1. the barangay? MTC
2. the municipality RTC
3. the province COMELEC
4. the city COMELEC (NOTE THERE IS NO MORE DISTINCTION
W/N IT IS A INDEPENDENT COMPONENT CITY OR HIGHLY URBANIZED CITY)

5. the House of Representatives HRET


(b) Give 3 issues that can properly be raised
and brought in a pre-proclamation contest.
1. ILLEGAL COMPOSITIONS OF THE
BOARD AND
2. ILLEGAL PROCEEDINGS OF THE
BOARD!!
10. Prosecution of Election Offenses
NOTE AS TO WHEN CAN THEY BE
COMMITTED HAS NOT BEEN
UNIFORMED!
AS WHEN TRANSFER OF OFFICER,
CARRYING OF FIREARMS APPLIES TO
ELECTION PERIOD!!
When offenses may be committed?
1. election period
-transfer of officers
-carrying firearms without a permit
-suspension of officials
2. campaign period
-appointment/promotion of employees
-hiring of special policemen
-prohibition regarding release of funds
3. Election day
-carrying of deadly weapon inside polling
place
-drinking liquor

Penalties
-one year to six years (THE PENALTY IS
ALWAYS CORECTIONAL), except
election sabotage -
RA 9369: Example of Election Sabotage
"(2) Regardless of the elective office involved, when the
tampering, increase and/or decrease of votes committed
or the refusal to credit the correct votes or to deduct
tampered votes perpetrated , is a accomplished in a
single election document or in the transposition of the
figure / results from one election document to another
and involved in the said tampering increase and/or
decrease or refusal to credit correct votes or deduct
tampered votes exceed five thousand (5,000) votes, and
that the same adversely affects the true results of the
election ;
THE PENALTY USED TO BE DEATH
RIGHT NOW, THE PENALTY IS ONLY RECLUSION
PERPETUA THAT IS WHY GMA WAS ABLE TO POST
BAIL IN HER ELECTION SABOTAGE CASE!!
Who can Prosecute? (THIS IS THE OLD LAW)
COMELEC exclusive authority to conduct
preliminary investigation and prosecute, but
there is a continuing delegation of authority to
DOJ Prosectutors. [under the control and
supervision]
Office of Special Prosecutor? In relation to
office? People b. De Jesus, 120 SCRA 762
(1983)
CAN THE OFFICE OF THE PROSECUTOR CHARGE YOU OF AN
ELECTION OFFENSE IN RELATION TO YOUR OFFICE AND YOU HAVE
SALARY GRADE OF 27 OR ABOVE? HELD NO! FOR ELECTION
OFFENSES, IT HAS TO BE THE COMELEC WHO MUST PROSECUTE
OR THE DOJ PROSECUTORS DULY DELEGATED WITH AUTHORITY
BY THE FORMER!!
But see, RA No. 9369, SEC. 43. Section 265 of Batas
Pambansa Blg. 881 is hereby amended to read as
follow: (NEW LAW)!!
"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 prosecute
the same"
THE CHANGE IS THAT THE POWER TO PROSECUTE IS NO LONGER
EXCLUSIVE AUTHORITY OF THE COMELEC BUT CONCURRENT WITH THE
OTHER PROSECUTING ARMS OF THE GOVERNMENT
1. TO CONDUCT PRELIMINARY INVESTIGATION OF ALL ELECTION
OFFENSES UNDER BP 881 AND
2. PROSECUTE THE SAME
Which court has jurisdiction? What if salary
grade is 27 or above? People v. Delgado,
189 SCRA 716 (1990) GMA?
IT IS NOT SANDIGANBAYAN!! IN ALL CASES INVOLVING ELECTION OFFENSES FALL
WITHIN THE EXCLUSIVE JURISDICTION OF THE RTC BY VIRTUE OF THE DIRECT
PROVISIONS OF THE OMNIBUS ELECTION CODE!! THAT IS WHY GMA IN RELATION
TO HER ELECTION SABOTAGE CASE IS FILED AND PENDING BEFORE THE RTC!!
EVEN IF THE IMPOSABLE PENALTY OF ELECTION OFFENSES RANGES ONLY FROM
1 YEAR TO 6 YEARS, IT IS WITHIN THE EXCLUSIVE JURISDICTION OF THE RTC!!

Can one apply for probation? ONCE CONVICTED, YOU ARE


NOT ALLOWED PROBATION!!

Can one secure executive clemency? YOU MAY BE


GRANTED WITH PARDON PROVIDED THE COMELEC RECOMMENDS THE
SAME TO THE PRESIDENT! NOTE COMELEC CANNOT RECOMMEND
PROBATION IN ALL ELECTION CASES!!

What is the period of prescription? OEC, Sec.


267- NOTE VIOLATION OF ORDINANCES WILL PRESCRIBE IN 3 MONTHS AS
TO ELECTION OFFENSES, IT WILL PRESCRIBE WITHIN 5 YEARS!!
51. A candidate who commits vote buying
on Election Day itself shall be prosecuted
by the
A. COMELEC.
B. Secretary of Justice.
C. police and other law enforcement
agencies.
D. City or Provincial Prosecutor.

NOTE THAT THE POWER TO PROSECUTE ELECTION OFFENSE


OF THE COMELEC IS NOW CONCURRENT WITH THE
PROSECUTING ARMS OF THE GOVERNMENT!!
Thank you again JUDGE GIL DE LA BANDA!!!!!