ELECTION LAWS From the 2017 notes of atty.

VALENCIA

2017 BAR Examination Coverage for Election Laws BP Blg. 881 has undergone several amendments under the
1987 Constitution and among the most significant
A. Suffrage amendatory laws include –
B. Qualification and disqualification of voters
C. Registration of Voters  RA 6646 (January 5, 1988), the Electoral Reform
D. Inclusion and Exclusion Proceedings Law of 1987. Specifically Section 2 thereof re-
E. Political Parties enacted the OEC, when it provided that the
a. Jurisdiction of the COMELEC over political “first local elections under the new Constitution
parties and all subsequent elections and plebiscites
b. Registration shall be governed by this Act and by the
F. Candidacy provisions of the BP 881, otherwise known as
a. Qualification of candidates the OEC of the Philippines, and other election
b. Filing of certificates of candidacy laws not inconsistent with this Act.
i. Effect of filing  RA 6735 (August 4, 1989), An Act Providing for a
ii. Substitution of candidates System of Initiative and Referendum and
iii. Ministerial duty of COMELEC to Appropriating Funds Therefore;
receive certificate  RA 7160 (October 10, 1991), The Local
iv. Nuisance candidates Government Code of 1991 Provisions relating to
v. Petition to deny due course to or the Qualifications and Election of Local Elective
cancel certificates of candidacy Offices, the Recall of Local Elective Officials, and
vi. Effect of disqualification Local Initiative and Referendum (Sections 39-43,
vii. Withdrawal of candidates 69-75, 120-127);
G. Campaign  RA 7166 (November 26, 1991), An Act Providing
a. Premature campaigning for Synchronized National and Local Election
b. Prohibited contributions and for Electoral Reforms
c. Lawful and prohibited election propaganda  RA 7941 (March 3, 1995), An Act Providing for
d. Limitations on expenses the Election of Party-List Representatives
e. Statement of contributions and expenses through the Party-List System and Appropriating
H. Board of Election Inspectors and Board of Funds Therfor;
Canvassers  RA 8171 (October 23, 1995), An Providing for
a. Composition the Repatriation of Filipino Women Who Have
b. Powers Lost Their Philippine Citizenship by Marriage to
I. Remedies and jurisdiction in election law Aliens and of Natural-Born Filipinos;
a. Petition to deny due course to or cancel a  RA 8189 (June 11, 1996), An Act Providing for a
certificate of candidacy General Registration of Voters, Adopting a
b. Petition for disqualification System of Continuing Registration Prescribing
c. Petition to declare failure of elections the Procedures Thereof and Authorizing the
d. Pre-proclamation controversy Appropriation of Funds therefore;
e. Election Protest  RA 8295 (June 6, 1997) – An Act Providing for
f. Quo Warranto the Proclamation of a Lone Candidate for any
J. Prosecution of election offenses (excluding Penal Elective Office in a special Election, and for
Provisions) Other Purposes;
Include: OEC as amended and Automation Laws RA  RA 8436 (December 22, 1997), An Act
8436 as amended by RA 9369) Authorizing the Comelec to Use An Automated
System in the May 11, 1998 National and Local
Elections and in subsequent National and Local
BATAS PAMBANSA BLG. 881 OR THE OMNIBUS ELECTION Electoral Exercises. (Sec. 11 thereof impliedly
CODE OF THE PHILIPPINES (OEC) repealed Sec. 67 of BP 881 being inconsistent
with Sec. 11, which provides that elective
Batas Pambansa Blg. 881 otherwise known as the OEC of the officials running for any office other than the
Philippines which was enacted into law on December 3, 1985 one he/she is holding in a permanent capacity,
and took effect upon its approval (OEC, Section 283), is the except for Pres. And VP, shall be deemed
basic statutory election law of the Philippines. It codified all resigned only upon the start of the campaign
previous election laws which repealed PD 1296 otherwise period corresponding to the position for which
known as the “Election Code of 1978, as amended (OEC 282). he/she is running)
 RA 8524 (February 14, 1998), An Act Changing
the Term of Office of Barangay Officials and
Members of the SK from 3 years to 5 years

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

amending Sec. 43 of RA 7160, Local Government  The qualifications and elections of local elective
Code of 7160. officials;
 RA 9006 (February 12, 2001), Political  Disqualification of local elective officials
Advertising Ban and Fair Election Practices Act.  Recall of local elective officials
(Sec. 14 expressly repealed Sec. 67 & 85  Local Initiative and Referendum
(Political Ad Ban has been lifted), Sec. 10 & 11 of
RA 6646 and rendered ineffective the provision
of Sec. 11 of RA 8436 insofar as the applicability A. SUFFRAGE
of Sec. 11 on the matter is concerned.)
 RA 9164 (March 19, 2002), An Act Providing for THEORY OF POPULAR SOVEREIGNTY - Section 1, Article 11
Synchronized Barangay and SK Elections, of the Constitution: “The Philippines is a democratic and
Amending RA 7160, As Amended. republican state. Sovereignty resides in the people and all
 RA 9189 (February 13, 2003), An Act Providing government authority emanates from them.” A democratic
For a System of Overseas Absentee Voting By and republic government derives all its powers, directly or
Qualified Citizens of the Philippines Abroad; indirectly, from the people–who represents the sovereign
 RA 9225 (August 29, 2003), An Act Making the power of the state.
citizenship of Philippine Citizens who Acquire
Foreign Citizenship Permanent, Amending For In Angel G. Naval v. COMELEC and Nelson B. Julia (729 SCRA
the Purpose Commonwealth Act No. 63, As 299), then Associate Justice Reynato S. Puno explained the
Amended; character of a republican state and a public office, viz: A
 RA 9244 (February 19, 2004), An Act Eliminating republic is a representative government, a government run
the Preparatory Recall Assembly as a Mode of by and for the people. It is not a pure democracy where the
Instituting Recall of Elective Government people govern themselves directly. The essence of
Officials. republicanism is representation and renovation, the
 RA 9369 An Act which amended Republic Act selection by the citizenry of a corps of public functionaries
8436, entitled “an Act authorizing the who derive their mandate from the people and act on their
Commission on Elections to Use an automated behalf, serving for a limited period only, after which they are
Election System in the May 11, 1998 National replaced/not re-elected or retained/re-elected, at the option
and Local elections and in Subsequent National of their principal (sovereignty). Obviously, a republican
and Local electoral Exercises, to Encourage government is a responsible government whose officials hold
Transparency, Credibility, Fairness and Accuracy and discharge their position as a public trust and shall,
of Elections, Amending for the Purpose BP Blg. according to the Constitution, at all times be accountable to
881, as Amended, Republic Act 7166 and other the people they are sworn to serve. The purpose of a
related laws. republican government, it is almost needless to state, is the
 RA 9525 an Act Appropriating the Sum of Eleven promotion of the common welfare according to the will of
Million three Hundred One Million Seven the people themselves.
Hundred Ninety thousand Pesos
(Php11,301,790,000.000 As Supplemental This holding was made in connection with the issue of the 3-
budget for an AES and for other purposes. term limit rule in connection with the re-apportionment of
legislative district.
SIGNIFICANCE - The basic law on elections and these
legislations (amendments) are designed to improve the law Associated with a democratic process is the exercise of –
and to protect the integrity of the elections in order to
achieve the objective of holding an honest, orderly, peaceful, SUFFRAGE
free and credible elections (HOPE-FRECRE).  Is the right and obligation of qualified citizens to
vote in the election of certain national and local
APPLICABILITY – The OEC shall govern all elections of public officers of the government and in the decision of
officers and, to the extent appropriate, all referenda and public questions submitted to the people (involves
plebiscite (Section 2 OEC). This is further strengthened by other forms of popular intervention)
Sec. 2(1) of Article IX-C of the Constitution which empowers  It is not a natural right but is a right created by law.
the COMELEC, to “enforce and administer all laws and It is a privilege granted by the State to such
regulations relative to the conduct of an election, plebiscite, persons or classes as are most like to exercise it for
initiative, referendum and recall.” The COMELEC is mandated the public good. (Pp. of the Philippine Islands v.
to apply the OEC and all other statutes on the subject Corral 62 Phil 945 as quoted in Kabataan Party-
government election laws. (Section 36 of RA 7166). List vs. Comelec 777 SCRA 574). The case
pertained to the implementation of RA 10367
RA 7160, The Local Government Code of 1991, in so far as – which mandated the COMELEC to implement a
mandatory biometrics registration system for new

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

voters in order to establish a clean, complete, Sec. 1, Art. V of 1987 the Constitution provides, “Suffrage
permanent and updated list of voters through the may be exercised by all citizens of the Philippines, not
adoption of biometric technology. Likewise otherwise disqualified by law, who are at least 18 years of
registered voters whose biometrics have not been age, and who shall have resided in the Philippines for at least
captured shall submit themselves for validation one year and in the place wherein they propose to vote, for
and those who fail will result to their deactivation at least 6 months immediately preceding the election. No
or No Bio-No Boto (amendment to RA Section 28 literacy, property, or other substantive requirements shall be
of RA 8189). It is not a necessary accompaniment imposed on the exercise of suffrage. (RA 8189 Voters
of citizenship. It is granted to an individual only Registration Act)
upon the fulfillment of certain minimum conditions
deemed essential for the welfare of the common Suffrage may also be exercised by qualified Filipinos abroad.
good. (not otherwise disqualified by law/ those Article V, Section 2 of the 1987 Constitution further provides
possess the qualification and none of the that, “The Congress shall provide a system for securing the
disqualification) secrecy and sanctity of the ballot as well as a system for
 Not absolute as it is subject to existing substantive absentee voting by qualified Filipinos abroad.” Congress
and procedural requirements provided in the enacted R.A. 9189 “Overseas Absenting Voting Act of 2003”
Constitution, statutes and valid rules and now amended by the Overseas Absenting Voting Act of 2013.
regulations (qualifications and requirement of
registration). SCOPE OF SUFFRAGE: FORMS OF POPULAR INTERVENTION
 It is classified as political right, as well as a
bounden duty of every citizen enabling him to Sec. 2(1) of Article IX-C of the Constitution, the Comelec is
participate in the process of government to assure vested with the power to “enforce and administer all laws
that it truly derives its powers solely from the and regulations relative to the conduct of election, plebiscite,
consent of the governed (Pungutan v. Abubakar initiative, referendum and recall”. (This pertains to the
43 SCRA 1 (1972). Administrative/Executive Power – )
 Means by which people express their sovereign
judgment. (Nolasco v. Comelec 275 SCRA 763). The fundamental election law is enshrined in the
 Suffrage as a duty is in the nature of a public trust Constitution. The OEC or BP 881 is the basic statutory
and constitutes a voter a representative of the election law of the Philippines that has undergone several
whole people. This duty requires that the amendments under the 1987 Constitution. These legislative
privileged bestowed should be exercised not amendments (most significant are: RA 6646 The Electoral
exclusively for the benefit of the citizen or citizens Reforms Law of 1987, RA 7166 the Act providing for the
proferring it but in good faith and with intelligent Synchronized National and Local Elections, RA 8189 The
zeal for the general benefit and welfare of the Voters Registration Act, RA 9189 Overseas Absentee Voting
State. (Cipriano Abanil v. Justice of the Peace Law, RA 9006 The Fair Elections Law, RA 9369 The Automated
Court of Bacolod, Negros Occidental et. al. 70 Phil. Election Law, among others) were designed to improve the
28 (1940)). law (OEC) and to protect the integrity of the electoral process
 As to its applicability: Suffrage applies not only to in order to achieve the objective of holding an HONEST,
elections, but may also extend to initiatives, ORDERLY, PEACEFUL, FREE and CREDIBLE ELECTIONS. (HOPE-
referenda, plebiscite and recall. FRECRE).
 Suffrage also includes the right of the voter to
verify whether the vote-counting machines Notwithstanding these legislative enactments, we can
property recorded their vote. The SC rules that it is confidently say that the OEC remains the basic law on
not only a statutory right; it is one that enables elections that shall govern all elections of public officers, and,
their individual participation in governance as to the extent appropriate, all referenda and plebiscite
sovereign. (Bagumbayan-VNP Movement, Inc. and (Section 2, of RA 6646 The Electoral Reforms Law which re-
Richard J. Gordon, as Chairman vs. Comelec (787 enacted the OEC).
SCRA 1). (Feature in the PCOS machine is the
Voter-Verified Paper Audit Trail (VVPAT), 1) Election – is the means by which the people
functionality is in the form of a printed receipt and choose, through the use of the ballot, their
a touch screen reflecting the votes in the voting- officials for definite and fixed periods and to
counting machine. Comelec decided not to whom they entrust, for the time being as their
implement it as it will add 5-7 minutes of voting representatives, the exercise of powers of
time and may be used for vote buying. Procedure government (Garchitorena v. Crescini 39 Phil.
is that receipt can be read and thereafter 258 (1918)).
deposited in a box).
In ordinary dialect or understanding, the Court
in Carlos v. Angeles, 346 SCRA 571 (2000) held

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

that elections refers to the conduct of the poles 1. special elections should be held not be later
(pre election, proper and post - elaborate) – than thirty (30) days after the cessation of the
listing of votes, holding of electoral campaign, cause of the postponement or suspension of the
act of casting and receiving the ballots from the election or the failure to elect;
voters, counting them, and canvassing of the
election returns and proclamation of 2. special elections should be reasonably close to
candidates. . .it refers to the entire and the date of the election not held, suspended or
complete electoral process. which resulted in the failure to elect. (Lucero v.
Comelec 234 SCRA 280 expound).
The essence of elections is the plurality of votes (which is
determined not by the number of registered voters but 3. Manual Elections – Manual/mechanical
the voters who actually voted). A public office is filled casting/voting, counting, and canvassing stages
only by those who receive the highest number of votes which involves the following –
cast in the election for that office which is the basic tenet
in all republican form of government. (Penera v. Comelec a. Use of paper “write-in” ballots during the casting
599 SCRA 609; Rulloda v. Comelec 395 SCRA 535; Sunga stage;
v. Comelec 288 SCRA 76). b. The “direct reading and manual tallying of votes”
in multiple copies of election returns (ER); and
Kinds of Election c. The manual addition of results in Statement of
Votes (SOVs) and the Certificates of Canvass (COCs)
1. Regular election – refers to an election participated
in by those who possess the right of suffrage and not 4. Automated Election System (AES) – a system using
disqualified by law and who are registered voters. appropriate technology which has been
demonstrated in the voting, counting, consolidating,
2. Special elections – election not regularly held but canvassing, and transmission of election result, and
which is conducted other electoral process. (Sec. 2, RA 9369, The
Automated Election System Law, As Amended)
 to supply a vacancy in a particular office
before the expiration of the full term for
2) Plebiscite – an electoral process by which an
which the incumbent was elected. Sec. 4 of
initiative on the Constitution is approved or
RA 7166 provides that, “in case a
rejected by the people (Sec. 3 R.A. 6735 “The
permanent vacancy shall occur in the
Initiative and Referendum Act). Generally
Senate or House of Representative at least
associated with the ratification process.
one (1) year before the expiration of the
Plebiscite is required –
term, the Comelec shall call and hold a
special elections to fill the vacancy not
a. Section 4, Article XVII of the Constitution,
earlier than 60 days nor longer than 90 days
with reference to the voting to determine
after the occurrence of the vacancy.
whether the voters in the country are in
 Article VI, Section 9, Constitution provides
favor of or against the ratification of the
that in case of such vacancy in the Senate, Constitution or an amendment thereto and
the special elections shall be held
b. Sec. 10, Art. X, in connection with the
simultaneously with the next succeeding voting to determine whether the voters in
regular elections. the political units affected agree to a
 Article VII, Sec. 10 of the Constitution, in proposed creation, division, merger,
case a vacancy occurs in the offices of the abolition or boundary change of a political
President and Vice-President, with the unit.
limitation that no special elections can be
called if the vacancy occurs within 18 Padilla Jr. v. Comelec 214 SCRA 735, the Comelec resolved to
months before the date of the next approve the conduct of the plebiscite in the area or units
presidential elections. affected for the proposed Municipality of Tulay-na-Lupa and
 In cases were a postponement and failure the remaining areas of the mother Municipality of Labo,
of elections are declared by the Comelec in Camarines Norte, Majority of the electorates in the units
accordance with Sections 5,6,7 of BP 881). affected rejected the creation of Tulay-na-Lupa.
Lucero v. Comelec 234 SCRA 280 (1994);
Borja v. Comelec 260 SCRA 604 (1996). Petitioner Gov. of Camarines Norte in a Special Civil Action for
Certiorari, seek to set aside the Plebiscite asserting that it was
In fixing the date for special elections the Comelec a complete failure and that the results obtained were invalid
should see to it that: and illegal because the Plebiscite as mandated by Comelec

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

Res. No. 2312 should have been conducted only in the petition for certiorari and mandamus was filed by petitioners
political unit or units affected (which is the 12 barangays and Buac and Bautista assailing the October 28, 2002 en banc
should not have included the mother unit of the Municipality resolution of the Comelec which held that it has no
of Labo.) jurisdiction over controversies involving the conduct of
plebiscite and the annulment of its results.
HELD: With the approval and ratification of the 1987
Constitution, more specifically, Art. X, Section 10, the
The facts show that in April 1988, a plebiscite was held in
creation, division, merger, abolition or alteration of the
Taguig for the ratification of the Taguig Cityhood Law (RA No.
boundaries of any political unit shall be subject to the
8487) proposing the conversion of Taguig from a municipality
approval by a majority of the votes cast in a Plebiscite in the
into a city. Without completing the canvass of 64 other
‘POLITICAL UNITS AFFECTED” was held to mean that
election returns, the Plebiscite Board of Canvassers (PBOC)
residents of the political entity who would be economically
declared that the “NO” votes won and that the people
dislocated by the separation of a portion thereof have a right
rejected the conversion of Taguig to a city. The PBOC was
to vote in the said Plebiscite or the plurality of political units
however ordered by the Comelec en banc to reconvene and
which would participate in the Plebiscite.
complete the canvass which the board did and in due time
issued an Order proclaiming that the negative votes
The Court reiterated its ruling in Tan v. Comelec 142 SCRA
prevailed.
727 (1986), that “in the conduct of a Plebiscite, it is
imperative that all the constituents of the mother and
Petitioners filed with the Comelec a petition to annul the
daughter units affected shall be included.
results of the plebiscite with a prayer for revision and recount
of the ballots. Cayetano intervened and moved to dismiss the
Sanidad v. Comelec 181 SCRA 529, the Supreme Court
petition on the ground of lack of jurisdiction of the Comelec.
declared as unconstitutional the restriction imposed by
He claimed that a plebiscite cannot be the subject of an
Comelec on media relative to discussing on air and print the
election protest and that the jurisdiction to hear a complaint
features of the plebiscite issues in the creation of the
involving the conduct of a plebiscite is lodged with the RTC.
autonomous region for the Cordilleras and held that
plebiscite are matters of public concern and importance and
the peoples right to be informed and to be able to freely and Comelec 2nd division initially gave due course to the petition
intelligently make a decision would be best served by access ruling that it has jurisdiction over the case. It treated the
to an unabridged discussion of the issues. petition as akin to an election protest considering that the
same allegations of fraud and irregularities in the casting and
City of Pasig v. Comelec/Municipality of Cainta Province of
counting of ballots and preparation of returns are the same
Rizal 314 SCRA 179 (1999), the issue raised was the propriety
grounds for assailing the results of an election. It then
of the suspension of the plebiscite proceedings pending the
ordered the Taguig ballot boxes to be brought to its Manila
decision of the boundary dispute between the Municipality
Office and created revision committees to revise and recount
of Cainta and the City of Pasig. The City of Pasig passed an
the plebiscite ballots.
Ordinance creating barangays Karangalan and Napico. The
Municipality of Cainta moved to suspend or cancel the
Intervenor Cayetano, in an unverified motion, moved for
respective plebiscite due to the pending case before the RTC
reconsideration of the Comelec Order insisting that it has no
of Antipolo for the settlement of the boundary dispute and
jurisdiction to hear and decide a petition contesting the
that the said activities await the decision of the RTC on the
results of a plebiscite.
matter.
In a complete turnaround, the Comelec 2nd division issued an
That Comelec suspended the holding of the plebiscite for the
Order granting the Motion for Reconsideration. It dismissed
creation of Brgy. Karangalan but rendered the creation of
the petition to annul the results of the plebiscite and ruled
Napico as moot as the same has already been ratified in the
that Comelec has no jurisdiction over said case as it involves
plebiscite held for the purpose. The SC held that the creation
an exercise of QJ powers not contemplated under Section
of Napico cannot be considered as moot and it is most proper
2(2), Article IX-C of the Constitution.
that the plebiscite be declared null and void in view of the
pending boundary dispute between Pasig and Cainta which
On appeal, the Comelec en banc affirmed the ruling of its 2nd
presents a prejudicial question and must be decided first
division. It held that the Comelec cannot use its power to
before the plebiscite for the proposed barangays be
enforce and administer all laws relative to plebiscites as this
conducted.
power is purely administrative or executive and not QJ in
nature. It concluded that the jurisdiction over the petition to
Jurisdiction over controversies involving Plebiscite Issues
annul the Taguig plebiscite results is lodged with the RTC
under Section 19(6) of BP 129 which provides that the RTC
Ma. Salvacion Buac/Antonio Bautista v. Comelec/Alan Peter
shall have exclusive original jurisdiction in cases not within
Cayetano and some Intervenors 421 SCRA 92 (2004), a

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

the exclusive jurisdiction of any court or body exercising petition of at least 12% of the total number of registered
judicial or QJ functions. Hence, the petition before the SC. voters, of which every legislative district must be
represented by at least 3% of the registered voters
The SC held that the key to the case is its nature, which therein”.
involves the determination of whether the electorate of
Taguig voted in favor of or against the conversion of the
Section 32, Article VI of the Constitution provides that
municipality of Taguig. The invocation of judicial power to
“Congress shall, as early as possible, provide for a system of
settle disputes involving the conduct of a plebiscite is
initiative and referendum and the exceptions therefrom,
misplaced. Judicial power as defined under Section 1, Article
where the people can directly propose and enact laws or
VIII of the Constitution as the duty of the court of justice to
approve or reject any act or law or part thereof passed by
settle actual controversies involving rights which are legally
Congress or local legislative body after the registration of a
demandable and enforceable and to determine whether or
petition thereof signed by at least 10% of the total number of
not there has been grave abuse of discretion amounting to
registered voters, of which every legislative district must be
lack or excess of jurisdiction on the part of any branch or
represented by at least 3% of the registered voters thereof.”
instrumentality of the government.
RA 7160 or the Local Government Code of 1991 also
This case assailing the regularity of the conduct of the Taguig
provides for a “local initiative” defined as the “legal process
plebiscite does not fit the kind of a case calling for the
whereby the registered voters of a local government unit may
exercise of judicial power. There is no plaintiff or defendant
directly propose, enact, or amend any ordinance. Sec. 126
in the case for it merely involves the ascertainment of the
thereof provides for a “local referendum” defined as the
vote of the electorate on whether they approve or
“legal process whereby the RV of the local government units
disapprove the conversion of their municipality into a highly
may approve, amend or reject any ordinance enacted by the
urbanized city.
sanggunian.”
In referring to Article IX-C, Section 2(1), the SC said that the
Classes of Initiative – 1) On the Constitution; 2) On Statutes;
said provision is explicit that Comelec has power to “enforce
3) On Local Legislation. Indirect Initiative is exercised by the
and administer all laws and regulations relative to the
people through a proposition sent to Congress or the local
conduct of an election, plebiscite, initiative, referendum and
legislative body for action.
recall. To enforce means to cause to take effect or to cause
the performance of such act or acts necessary to bring into
Classes of Referendum – 1) On Statutes; 2) On Local Laws.
actual effect or operation, a plan or measure which entails all
the necessary and incidental power for it to achieve the
Santiago, et. al. v. Comelec, et. al., 336 SCRA 843, the
holding of honest, orderly, peaceful, free and credible
controversy brought to the Supreme Court by way of a
elections (HOPE FRECRE). The SC was surprised that for the
petition for prohibition under Rule 65 of the Rules of Court is
first time, Comelec yielded its historic jurisdiction over a
“the right of the people to directly propose amendments to
motion for reconsideration which was even filed out of time,
the Constitution through the system of Initiative under
thus rendering it without jurisdiction to entertain the same.
Section 2 of Article XVII of the 1987 Constitution”.

INITIATIVE – are lawmaking powers that belong to the The Supreme Court in ruling in Santiago vs. Comelec declared
people and have been described as the “people power” RA 6735 as inadequate to implement the initiative clause on
features of our Constitution (Asked in the 2000 BAR). proposals to amend the Constitution.

Initiative under RA 6735 is defined as the power of the Atty. Jesus Delfin filed a petition with the Comelec to amend
people to propose amendments to the Constitution or to the constitution, specifically to lift the term limits of elective
propose and enact legislation through an election called officials, by people’s initiative. Atty. Delfin asked the Comelec
for the purpose. for an order: (1) to fix the time and dates for signature
gathering all over the country (2) to cause the necessary
REFERENDUM – power of the electorate to approve or publications of said Order and the said petition in newspapers
reject a piece of legislation through an election called for of general and local circulation and (3) instruct the municipal
the purpose. (Sec. 2©, R.A. 6735). election registrars in all regions in the Philippines to assist
petitioners and volunteers in establishing signing station at
Statutory demarcation between Initiative and the time and on the dates designated for the purpose.
Referendum:
The Comelec issued an Order granting the petition. Santiago
filed this special civil action for prohibition raising among
Section 2, Article XVII of the Constitution provides that
other grounds that RA 6735 does not provide for people’s
“Amendments to this Constitution may likewise be
initiative to amend the constitution considering that the same
directly proposed by the people through initiative upon a
is still pending with the Senate of which she is the author.

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

The petition of Atty. Delfin was not validly initiated as it failed amend the Constitution. The Comelec ruling prompted
to comply with the signature requirement for initiating an Lambino and Aumentado to bring their case before the
initiative. The Comelec never acquired jurisdiction over the Supreme Court on the following issues -
petition as jurisdiction is acquired only after its filing – the
petition being the initiatory pleading. (1) Whether the initiative petition of the Lambino group
complied with the provisions of Section 2, Article XVII of the
The SC gave due course to the Petition on the legal premise Constitution.
that the Constitution recognizes only two (2) methods of
proposing amendments to the Constitution, viz (1) by (2)Whether the Court should revisit its ruling in Santiago vs.
Congress upon a vote of ¾ of all its members and (2) by Comelec declaring RA 6735 “incomplete and inadequate or
constitutional convention. wanting in essential terms and conditions” to implement the
initiative clause to amend the Constitution.
The SC interpreted Sec. 2 of RA 6735 which provides that “the
power of the people under a system of initiative and The Supreme Court upheld the Comelec’s ruling on the
referendum to directly propose, enact, approved or reject, in petition for people’s initiative on October 25, 2006 with a
whole or in part the Constitution, laws, ordinance or close 8-7 vote. As ruled:
resolutions passed by any legislative body upon compliance
with the requirements of this Act, is hereby affirmed,  The Lambino Group miserably failed to comply with
recognized and guaranteed.” It held that the inclusion of the the basic requirement of the Constitution for the
word “constitution” here is neither germane nor relevant to conduct of people’s initiative. The Constitution
said action which exclusively relates to initiative and require that the amendment must be “directly
referendum on national and local laws, ordinances and proposed by the people through initiative upon a
resolution. Therefore, the people are not accorded the petition.”
power to “directly propose, enact, approved or reject, in  Lambino’s group failed to include the full text of the
whole or in part the Constitution, through the system of proposed changes in the signature sheets –a fatal
initiative. omission, according to the Supreme Court ruling,
because it means a majority of the 6.3M people who
The SC further declared that Comelec cannot validly signed the signature sheets could not have known
promulgate rules and regulations to implement the exercise the nature and effect of the proposed changes. For
of the right of the people to directly propose amendments to the petition to be valid, two essential requisites must
the Constitution through the system of initiative. The power be complied with, namely: (a) the people must
of Comelec to issue rules and regulations (QJ power) is author, and thus sign, the entire proposal; no agent
limited only to what is provided under – or representative can sign on their behalf; and (b) as
an initiative upon a petition, the proposed
(a) Section 2 of Article IX-C of the Constitution and amendments must be embodied in the petition
(b) by a law where subordinate legislation is itself.
authorized and which satisfied the “completeness”  A people’s initiative to change the Constitution
and the “sufficient standard” tests. applies only to an amendment of the Constitution
and not to its revision. Only Congress or a
Raul Lambino, et. al. vs. Comelec 505 SCRA 160 (2006), the constitutional convention may propose revisions to
issue on initiative to propose amendments to the 1987 the Constitution. A people’s initiative may propose
Constitution was again at issue. FACTS: Raul Lambino of only amendments to the Constitution.
Sigaw ng Bayan and Erico Aumentado of the Union of Local  The SC declared that “A popular clamor, even one
Authorities of the Philippines (ULAP) filed a petition for backed by 6.3M signatures, cannot justify a
people’s initiative before the Commission on Elections on deviation from the specific modes prescribed in the
August 26, 2006, after months of gathering signatures all over Constitution itself.”
the country. Lambino claimed that the petition is backed by
6.3M registered voters. constituting at least 12% of all The rationale for the second requisite is that the signature
registered voters, with each legislative district represented by requirement would be rendered meaningless if the person
at least 3% of the registered voters. They further claimed affixing his signature has not first seen and understood what
that the provincial and city Comelec officials had already it is that he is signing. Further, and more importantly, loose
verified the 6.3M signatures interpretation of the subscription requirement can pose a
significant potential for fraud. On-compliance with the above
The Comelec denied the petition, reasoning that a lack of mentioned requirement is fatal to the initiative petition. For
enabling law keeps them from entertaining such petitions. It sure, the great majority of the 6.3M people who signed the
invoked the 1997 Supreme Court ruling in Santiago vs. signature sheets did not see the full text of the proposed
Comelec (336 SCRA 843), where it declared RA 6735 changes before signing, as the proposed amendments were
inadequate to implement the initiative clause on proposals to not stated in the signature sheets. They were not apprised of

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

the nature and effect of the proposed amendments, among affirmation or reversal of the same will not change the
which are substantial changes as follows: outcome of the case. The Court must avoid revisiting a ruling
involving the constitutionality of a statute if the case before
1) the term limits on members of the legislature the Court can be resolved on some grounds.
will be lifted and thus member of the Parliament
may be re-elected indefinitely; In the resolution on the motion for reconsideration, the Court
2) The Interim Parliament whose membership maintaining its 8-7 vote, denied with finality the motions for
comprised of present members of Congress can reconsideration of its October 25, 2006 decision dismissing
decide when to call the parliamentary elections. the said petition to amend the 1987 Constitution through a
Thus, leaving them the absolute discretion to people’s initiative. . Ten justices however reiterated their
determine their term limits. earlier opinions that RA 6735 is sufficient and adequate as an
3) That within 45 days from the ratification of enabling law for people’s initiative, effectively abandoning
proposed changes, the interim Parliament may Santiago v. Comelec. The Court upheld the sovereign power
further propose revision or amendments to the of the people as the highest form of sovereignty and deserves
Constitution. the highest respect. It is time to let the people’s voice be
heard once again as it was 20 years ago. And should this voice
Furthermore, a people’s initiative to change the Constitution demand a change in the Constitution, the SC should not be
applies only to an amendment to the Constitution and not one to stand in its way.
revision. Article XVII of the Constitution speaks of three
modes of proposing amendments to the Constitution: a) by Subic Bay Metropolitan Authority v. Comelec 252 SCRA 492
direct congressional action (3/4 votes of all its members), b) (1996), an action for certiorari and prohibition was brought to
through a constitutional convention, and c) through a the SC seeking to nullify the ruling of the Comelec and
people’s initiative. Resolution No. 2848 denying petitioner’s plea to stop the
holding of a local initiative and referendum on the
The first and second modes, as provided in Section 1 of proposition to recall Pambayang Kapasyahan Blg. 10, Serye
Article XVII, apply to both amendment and revision, but the 1993 of the SB of Morong Bataan.
rd
3 mode applies only to amendments. The distinction
between the first two modes and the third was intentional as In this case, the Sangguniang Bayan of Morong, Bataan on
shown by the deliberations of the Constitutional Commission. April 1993, passed Pambayang Kapasyahan Blg. 10, Serye
1993, expressing therein its absolute concurrence to join the
There can be no dispute that a people’s initiative can only Subic Special Economic Zone (SSEZ) as required by Sec. 12 of
propose amendments to the Constitution since the RA 7227 (Bases Conversion and Development Act of 1992).
Constitution itself limits initiatives to amendments. There On September 5, 1993, the SB submitted the Kapasyahan to
can be no deviation from the constitutionally prescribed the Office of the President. On May 24, 1993, respondent
modes of revising the Constitution. A popular clamor, even Garcia, et. al. filed a petition with the SB of Morong to annul
one backed by 6.3M signatures, cannot justify a deviation PK Blg. 10, Serye 1993 and therein proposed for amendments
from the specific modes prescribed in the Constitution itself. to the said law. The SB acted upon the petition and
The Lambino’s group proposed changes constituted not just promulgated PK Blg. 18, requesting Congress to amend
an amendment but a revision, because of the change in the certain provisions of RA 7227 and informed respondents that
form of government from Presidential to Parliamentary, and the other matters in the proposed amendments were already
the shift from a bicameral to a unicameral legislature. submitted to the Office of the President.

DISTINCTION BETWEEN REVISION AND AMENDMENT Not satisfied and within 30 days from submission of their
petition, respondent resorted to their power of initiative
Revision broadly implies a change that alters a basic principle under the LGC of 1991. On June 18, 1996 Comelec issued
in the constitution, like altering the principle of separation of Resolution No. 2845 adopting a calendar of activities for local
power or the system of checks and balances. There is also referendum to annul or repeal Kapasyahan Bldg. 10.
revision if the change alters the substantial entirety of the
Constitution. Petitioner SBMA seeks to nullify the Order of Comelec
denying petitioner’s plea to stop the holding of a local
On the other hand, amendment broadly refers to a change initiative and referendum on the proposition to recall the
that adds, reduces, deletes, without altering the basic Kapasyahan as it was proceeding with a local initiative that
principle involved. Revision generally affects several proposes an amendment of a national law. ISSUE:
provisions of the constitution, while amendment generally
affects only the specific provision being amended.  whether Comelec committed grave abuse
of discretion in promulgating and
On the second pivotal issue of revisiting the ruling of the implementing its Res. No. 2842 which
Court in Santiago vs. Comelec, the Court held that an

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

govern the conduct of the referendum The mode of initiating recall against a public elective official is
proposing to annul or repeal PK Blg. 10 and now limited to a petition commenced only by the registered
 whether the questioned local initiative voters in the local unit concerned. Section 70 and 71 of RA
covers a subject within the powers of the 7160 is now amended by RA 9244, otherwise known as An
people of Morong to enact (whether such Act Eliminating the Preparatory Recall Assembly as a Mode
initiative seeks the amendment of a of Instituting Recall of Elective Local Government Officials.
national law.
Section 70 of RA 7160 now reads as follows: “The recall of
In this case, the SC was compelled to distinguish Initiative any elective provincial, city, municipal or barangay official
from Referendum. To begin with, the process started by shall be commenced by a petition of a registered voter in the
Garcia et. al., was an Initiative but respondent Comelec made LGU concerned and supported by the registered voters in
preparations for a referendum. In the body of the Comelec the LGU concerned during the election in which the local
Resolution No. 2842, the word “referendum” is repeated at official sought to be recalled was elected subject to the
least 27 times, but initiative is not mentioned at all. The following percentage requirements:
Comelec labeled the exercise as a referendum, the counting  At least 25% in the case of an LGU with a voting
of votes was entrusted to a referendum committee, the population of not more than 20,000
documents were called referendum returns and so forth. As  At least 20% in the case of LGUs with a voting
distinguished, initiative is a process of law making by the population of at least 20,000 but not more than
people themselves without the participation and against the 75,000: Provided, that in no case shall the required
wishes of their elected representatives while referendum petitioners be less than 5,000.
consists merely with the electorate approving or rejecting  At least 15% in the case of local government units
what has been drawn up or enacted by the legislative body by with a voting population of at least 75,000 but not
simply indicating yes or no in the ballot. more than 300,000: Provided however, that in no
case shall the required number of petitioners be less
In initiative, there is a need for the Comelec to supervise the than 15,000; and
process closely, it’s authority therein extending not only to  At least 10% in the case of local government units
the counting and canvassing of votes but also to seeing to it with a voting population of over 300,000 thousand:
that the matter or act submitted to the people is in the Provided however, that in no case shall the required
proper form and language so it may be easily understood petitioners be less than 45,000.
and voted upon by the electorate. Care in this activity must
be exercise that “no petition embracing more than one DATE OF RECALL – Upon the filing of a valid petition for
subject shall be submitted to the electorate, although two or recall with the appropriate local office of the Comelec, the
more propositions may be submitted in an initiative. “ Comelec or its duly authorized representative shall set the
date of the election or recall, which shall not be later than 30
As to the second issue, SBMA insists that the creation of the days upon the completion of the procedure outlined in the
SSEZ is now a fait accompli for the benefit of the entire nation preceding article, in the case of the barangay, city or
and Morong cannot unilaterally withdraw its concurrence or municipal officials, and 45 days in the case of provincial
impose new conditions for such concurrence as this would officials.
effectively render nugatory the creation of the SSEZ. The SC
agreed with the contention of Garcia that the position of The official sought to be recalled shall automatically be
SBMA is premature and conjectural because at this point the considered as duly registered candidate or candidates to the
resolution is just a proposal. If the people should reject it pertinent positions and like other candidates, shall be entitled
during the referendum, then there is nothing to declare as to be voted upon.” (Sec. 71)
illegal. A writ of prohibition cannot issue upon a mere
conjecture or possibility as courts may decide only actual EFFECTIVITY OF RECALL – recall shall become effective only
controversies and not hypothetical questions or cases. upon the election and proclamation of a successor in the
person of the candidate who received the highest number of
3) RECALL – is the termination of official relationship of votes cast during the election in recall. Should the official
a local elective public official for loss of confidence by the sought to be recalled receive the highest number of votes,
people prior to the end of his term of office (Sec. 69, R.A. confidence in him is thereby affirmed and he shall continue in
7160 LGC). office. (Sec. 72).

In Angobung v. Comelec 269 SCRA 246 (1997), the LIMITATIONS ON RECALL – an elective official may be subject
Supreme Court ruled that recall is the mode of removal of recall elections only ONCE during his term of office
of a public officer by the people before the end of his exclusively on the ground of LACK OF CONFIDENCE. The
term of office which shall be exercised by the registered recall cannot be undertaken within one (1) year from the date
voters of a local government unit to which the local of the official’s assumption of office or within one (1) year
elective official subject of such recall belongs. immediately preceding a regular election. (Sec. 74)

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

In Paras v. Comelec 264 SCRA 49, Paras, incumbent punong WHO MAY REGISTER (RA 8189, (An Act Providing for the
brgy sought to bar the recall proceedings against him citing General Registration of Voters providing for a System of
Sec. 74 (B) of RA 7160 that it was barred by the scheduled SK Continuing Registration which took effect on June 11, 1996)
elections. The SC settled the issue and held that the SK
elections is not considered a “regular local elections” for Registration of voters is a means of determining who possess
purposes of recall under Sec. 74. The term regular local the qualifications as a voter and regulating the exercise of the
elections is construed as one referring to an election where right of suffrage.
the office held by the local elective official sought to be
recalled will be contested and be filled up by the electorate. Registration does not confer the right to vote; it is but a
It is confined to the regular elections of elective national and condition precedent to the exercise of the right.
local officials.
How is Registration done – Under RA 8189, registration
refers to the ACT of accomplishing and filing of a sworn
REGISTRATION OF VOTERS
application for registration (Voters Registration Record VRR)
by a qualified voter before the election officer of the city or
Article V Section 1. Suffrage may be exercised by all citizens municipality wherein he resides and including the VRR in the
of the Philippines NOT otherwise disqualified by law, who are book of RV upon approval by the Election Registration Board
at least 18 years of age who shall have resided in the (Sec. 3(a) RA 8189).
Philippines for at least one (1) year and in the place wherein
they propose to vote for at least six (6) months in the As stated in Section 2 thereof, RA 8189 was passed in order to
immediately preceding the elections. No literacy, property or “systemitaize the present method of registration in order to
other substantive requirements shall be imposed on the establish a clean, complete, permanent and updated list of
exercise of suffrage. voters. To complement RA 8189 in the light of the advances
in modern technology, RA 10367, or the assailed Biometrics
Section 2. The Congress shall provide for a system of Law, was signed into law in February 2013. It built on the
securing the secrecy and sanctity of the ballot as well as a policy considerations behind RA 8189 as it institutionalized
system of absentee voting by qualified Filipinos abroad (RA biometrics validation as part of the registration process. As
9189 OAV) defined in the said law, “Biometrics refers to a quantitative
analysis that provides a positive identification of an individual
The Congress shall also design a procedure for the disabled such as voice, photograph, fingerprint signature, iris, and/or
and illiterates to vote without the assistance of other such other identifiable features.” (Kabataan Party List, et. al.
persons. Until then, they shall be allowed to vote under vs. Comelec (777 SCRA 574).
existing laws and such rules as the Commission on Elections
may promulgate to protect the secrecy of the ballot. Procedure for Biometric Registration – The RV is required to:
a. personally appear before the Office of the EO;
RA 10366 now provides accessible Polling Places for Persons b. present a competent evidence of identity; and
with Disabilities (PWDS and Senior Citizens and also provides c. have his photo, signature and fingerprints recorded.
for, among others, assistance in the accomplishment of
registration forms. The law was in line with the objective of It is, in effect, a manner of updating one’s registration for
Sec. 29 of the “Magna Carta for Persons with Disability” (RA those already registered under RA 8189, or a first-time
No. 7277) which provides that “polling places should be made registration for new registrants. The re-registration process is
accessible to disabled persons during national and local amply justified by the fact that the government is adopting a
elections.” novel technology like biometrics in order to address the bane
of electoral fraud. While registrants may be inconvenienced
The Comelec shall likewise keep an updated record of PWDs by waiting in long lines or by not being accommodated on
and SC registered voters, indicating the types of disability and certain days due to heavy volume of work, these are typical
the assistance they need. (Sec. 6, RA 10366). In designing the burdens of voting that are remedies by bureaucratic
ballot, Comelec shall ensure reasonable accommodation to improvements to be implemented by the COMELEC as an
PWDs and SC to enable them to accomplish the ballots by administrative institution.
themselves (Sec. 10)
REGISTRATION IS EXTENDED TO: DOMESTIC AND OVERSEAS
Comelec, in coordination with the National Council on VOTERS
Disability Affairs (NCDA), the Commission on Human Rights
(CHR), and PWD and Senior Citizens organization shall FOR DOMESTIC VOTERS – GOVERNED BY RA 8189
organize, design, and implement sensitivity training programs (The Voters Registration Act)
for person performing electoral duties to familiarize them of
the needs of the PWDs and SC. (Sec. 12) I Who may Register

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

reside in a fixed place, but also personal presence in

Section 9 – Who may Register – All citizens of the Philippines that place, coupled with conduct indicative of such
NOT otherwise disqualified by law who are at least 18 years intention. (Nuval V. Guray, 52 Phil. 645 (1928).
of age, who shall have resided in the Philippines for at least (b) Registration of a voter in a place other than his
one (1) year, and in the place wherein they propose to vote, residence of origin is not sufficient to constitute
for at least six (6) months immediately preceding the abandonment or loss of such residence. This finds
elections. justification in the natural desire of every person to
return to the place of his birth. (Faypon v. Quirino
Any person who temporarily resides in another city, 96 Phil. 294 (1954))
municipality or country solely by reason of his occupation, (c) Domicile of origin is not easily lost. To successfully
profession, employment in private or public service, effect the change of domicile, one must
educational activities, work in the military or naval demonstrate: (1) an actual removal or an actual
reservations, within the Philippines, service in the AFP, or change of domicile, (2) a bona fide intention of
confinement or detention in government institution in abandoning the former place of residence and
accordance with law, shall NOT be deemed to have lost his establishing a new one; and (3) act which
original residence. correspond with the purpose. (Romuladez-Marcos
v. Comelec 248 SCRA1995))
Any person who, on the day of registration may not have (d) While voting is not conclusive of residence, it does
reached the required age or period of residence but, who on give rise to a strong presumption of residence. The
the day of election shall possess such qualifications, may fact that a party continuously voted on a particular
register as a voter.” locality is a strong factor in assisting to determine
the status of his domicile. (Domino v. Comelec 330
(Sec. 9 (repealed Sections 116 and 117 of the OEC). Sec. 9 SCRA 546 (1999))
clarified when the residency and age requirements should be (e) It is not required that a person should have a house
attained) – Salient amendments: in order to establish his domicile. (Delos Reyes v.
Solidum, 61 Phil. 893)
ILLITIERATE AND DISABLED VOTERS – Illiterates or disabled
are referred to as a persons who cannot by themselves Meynard Sabili v. Comelec/Florencio Librea 670 SCRA 670
prepare an application for registration because of their (2012) – The Court have held that “absence from residence to
physical disability and/or inability to read and write. (Section pursue studies or practice a profession or registration as a
3 (e)) voter other than the place where one is elected, does not
constitute loss of residence”. Section 117 of the OEC
Section 14. Procedure for illiterate applicants (those who provides that “transfer of residence to any other place by
cannot read and write) – assisted by the election officer or reason of one’s occupation, profession employment in
any member of an accredited citizens arm. The election private and public service, educational activities work force,
officer shall place such illiterate person under oath, ask him the constabulary or national police force, or confinement or
the questions and record the answers given in order to detention in government institutions in accordance with law”
accomplish the application form in the presence of the is not deemed as loss of residence.
majority of the members of the Board. The accomplished
form shall be subscribed by the applicant in the presence of The Court ruled that there is nothing wrong in an individual
the Board by means of thumbmark or some other customary changing residences so he could run for an elective post, for
mark and it shall be subscribed and attested by the majority as long as he is able to prove with reasonable certainty that
of the members of the Board. he has effected a change of residence for election law
purposes for the period required by law.
Procedure for disabled voters – the application for
registration of a physically disabled person (ex. blind, no II Who are disqualified
hands, senior citizen, mute) may be prepared by any
relative within the 4th civil degree of consanguinity or Sec. 11– Disqualifications: (Section 11 of R.A. 8189 repealed
affinity or by the election officer or any member of an Sec. 118 of the OEC)
accredited citizen’s arm using the data supplied by the  Any person who has been sentenced by final
applicant. judgment to suffer imprisonment for not less than
one (1) year.
NOTE: Common to both procedures, the fact of illiteracy and  Any person who has been adjudged by final
disability shall be so indicated in the application. judgment by competent court or tribunal of having
committed any crime involving disloyalty to the duly
Cases on Residence requirement: constituted government such as rebellion, sedition,
(a) The term “residence” is synonymous with violation of the anti-subversion and firearms law, or
“domicile” which imports not only intention to

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

any crime against national security in accordance (c) a person can have but one domicile at a time.
with law. (d)
 Insane or incompetent as declared by a competent The Comelec concluded that Jalosjos has not come to settle
authority. his domicile in Ipil since he was merely been staying at his
brother’s house. But the SC ruled that this circumstance
WHEN DISABILITY REMOVED alone cannot support such conclusion. Indeed, the Court has
repeatedly held that a candidate is not required to have a
 Plenary pardon or amnesty – those sentenced by house in a community to establish his residence or domicile
final judgment. Article IX-C, Section 5 provides that in a particular place. It is sufficient that he should live there
the President cannot, without the favorable even if it be in a rented house or in the house of a friend or
recommendation of the Comelec grant pardon, relative. To insist that the candidate own the house where he
amnesty, parole or suspension of sentence in cases lives would make property a qualification for public office.
involving violation of election laws and violation of What matters is that Jalosjos has proved two things: actual
election rules and regulations. physical presence in Ipil and an intention of making it his
 Expiration of five (5) years after service of sentence domicile.
 Official declaration by the proper authority that the
insanity or incompetency no longer exist. Mitra vs. Commission on Elections, Antonio Gonzales and
Orlando Balbon, Jr. 622 SCRA 744 (July 2010) - In this case,
Double Registrants – Two kinds of double registrants: (1) following the conversion of Puerto Princesa (Mitra’s domicile
those registrants who are found to be registered in two (2) or of origin) from a component city to a highly urbanized city
more districts/cities/municipalities, what would prevail? ….. whose residents can no longer vote for provincial officials,
the latest registration shall prevail…. As this is deemed to be Mitra abandoned his domicile in Puerto Princesa and
more in consonance with the intent of the concerned acquired a new one in Aborlan which is within the LGU where
registered votes. Accordingly, they shall be allowed to vote he intended to run. Mitra bought the old Maligaya Feedmill
only in the district/city/municipality of their latest and used the second floor as his residence.
registration.
In considering the residency issue, the Comelec disqualified
This is distinguished from (2) double/multiple registrants who Mitra for the reason that Mitra’s residence is not the
are found to be registered within the same residence contemplated by law considering that he did not
district/city/municipality…. What would prevail?... the renovate or improve the structure. The SC held that the
original registration shall prevail over subsequent dwelling where a person permanently intends to return to
registrations. (Comelec Res. 7893, 07 May 2007. See also Sec. and to remain – his or her capacity or inclination to decorate
261 (y(5)) of the OEC (Prohibited Acts) which provides “Any the place, or the lack of it, IS IMMATERIAL. Comelec gravely
person who, being a registered voter, registers anew without abused its discretion when it determined the fitness of a
filing an application for cancellation of his previous dwelling as a person’s residence based solely on very
registration” shall be guilty of an election offense). personal and subjective assessment standards when the law
is replete with standards that can be used. Comelec used
RESIDENCY REQUIREMENT wrong considerations in arriving at the conclusion that
Mitra’s residence is not the residence contemplated by law.
Romeo A. Jalosjos v. Comelec Dan Erasmo, Sr. 670 SCRA 572
(2012) Asistio vs. Aguirre 619 SCRA 518 – Residence as used in the
law prescribing the qualifications for suffrage and for elective
Residence – The Local Government Code requires a candidate office, is DOCTRINALLY SETTLED to mean ‘domicile”,
seeking the position of provincial governor to be a resident of importing not only an intention to reside in a fixed place but
the province for at least (1) year before the election. For also personal presence in that place, coupled with conduct
purposes of the election laws, the requirement of residence is indicative of such intention inferable from a person’s acts,
synonymous with domicile, meaning that a person must not utterances and activities.
only intend to reside in a particular place but must also have
personal presence in such place coupled with conduct Requisites when new domicile is acquired by choice
indicative of such intention. There is no hard and fast rule to
determine a candidate’s compliance with residency Domicile is not easily lost. To successfully effect a transfer,
requirement since the question of residence is a question of one must demonstrate:
intention. Still, jurisprudence had laid down the following
guidelines: (1) an actual removal or change of domicile;
(a) every person has a domicile or residence (2) bonafide intention of abandoning the former place of
somewhere; residence and establishing a new one; and
(b) where once established, that domicile remains until (3) acts which correspond to said purpose.
he acquires a new one; and

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

Same ruling in earlier case of Romualdez-Marcos v. Comelec, year to conform with the 120 days prohibitive period
248 SCRA 300. before election day.

HOW TO REGISTER Section. 21 – Publication of Action on Application for

Registration
Section 8 – System of Continuing Registration of
Voters/Creation of Election Registration Boards SECTION 12. Change of Residence to another City or
 A qualified voter personally files an application for Municipality – Any registered voter who has transferred
registration DAILY with the office of the election residence to another city or municipality may apply with the
officer during regular office hours. The ERB are EO of his new residence for the transfer of his registration
authorized to act on all applications for registration. records. The application for transfer of registration shall be
subject to the requirements of notice and hearing and the
LIMITATION: No registration shall be conducted during the approval of the ERB in accordance with this Act. Upon
period starting 120 days before a regular elections and 90 approval of the application for transfer, and after notice of
days before a special elections. such approval to the EO of the former residence of the voter,
said EO shall transmit by registered mail the voter’s
Sec. 15 – Election Registration Board – There shall be in each registration record to the EO of the voter’s new residence.
city and municipality as many as ERB’s as there are election
officers therein. Section 13. Change of Address in the Same City or
Municipality –Any voter who has changed his address in the
Composition – Election Officer (EO) as chairman and as same city or municipality shall immediately notify the EO in
members, the public school official most senior in rank and writing. If the change of address involves a change in
the local civil registrar (LCR), or in his absence, the city or precinct, the Board shall transfer his registration record to
municipal treasurer (MT). the precinct book of voters of his new precinct and notify the
voter of his new precinct. All changes of address shall be
In case of disqualification of the EO, the Commission shall reported to the office of the provincial election supervisor
designate as acting EO who shall serve as chairman of the and the Commission in Manila.
ERB. In cases of the non-availability of the LCR or the MT,
Comelec shall designate any other appointive civil service Sec. 27 – DEACTIVATION – is a process wherein the
official from the same locality as substitute. registration record of a voter is removed by the ERB from the
corresponding precinct book of voters and places the same
Restrictions to appointment – No member of the board shall in an inactive file properly marked and dated in indelible ink
be related to each other or to any incumbent city or and after entering the cause for deactivation which are as
municipal elective official within the 4th civil degree of follows:
consanguinity or affinity. If in succeeding elections, any of  Those who are disqualified by virtue of a final
the newly elected city or municipal officials is related to a judgment, insane and incompetent persons as
member of the board within the same degree, such member officially declared.
is automatically disqualified in order to preserve the integrity  Any person who failed to vote in the two (2)
of the ERB. successive preceding regular elections as shown by
his voting records.
Every registered party and such organizations as may be  Any person whose registration has been ordered
authorized by the Comelec shall be entitled to a watcher in excluded by the court.
every registration board.  Any person who has lost his Filipino citizenship.

Sec. 17 – Procedure for hearing of applications. For purposes of the above – the Clerks of Court of the MTC,
 Date of hearing posted in the city or municipal MTCC, RTC and SB shall furnish the EO of the city or
bulletin board and EO office at least 1 week before municipality concerned at the end of each month a certified
date of hearing list of persons who are disqualified by virtue of a final
 If objected to, EO shall receive evidence. Physical judgment, with their addresses.
presence of applicant in this case is mandatory to
rebut evidence presented in opposition thereto For those who lost their citizenship, insanity and
 If no objection to application, physical appearance incompetency, the Comelec may request a certified list of
not required and will be duly informed in writing such persons from the government agencies concerned.
 Applications for registration shall be heard and
processed on a quarterly basis. Board shall convene Sec. 28 – REACTIVATION – is a process whereby a voter
on the 3rd day of Monday of April, July, October and whose registration records has been deactivated files with
January of every calendar year except in an election the election officer a sworn application for reactivation of

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

his registration in the form of an affidavit by stating therein Canicosa v. Comelec 282 SCRA 512 (1997). The question of
that the grounds for the deactivation no longer exist. inclusion or exclusion from the list of voters involves the right
to vote which is not within the power and authority of the
PERIOD TO FILE – Any time but not later than 120 days before Comelec to rule upon. The determination of whether one has
a regular election and 90 days before a special election. the right to vote is a justiciable issue properly cognizable by
Upon approval, the Board shall retrieve the registration our regular courts.
records from the inactive file and include the same in the
corresponding precinct book of voters. WHERE TO APPEAL – Decisions of the Municipal or
REQUIREMENT: Local heads or representatives of political Metropolitan Trial Courts may be appealed by the aggrieved
parties shall be properly notified of the approved party to the Regional Trial Court within five (5) from receipt
applications. of notice thereof. Otherwise, said decision shall become final
and executory. Regional Trial Court shall decide the appeal
Sec. 29 – CANCELLATION – is a process wherein the Board within ten (10) days from the time it is received and the
cancels the registration records of those who have died as Regional Trial Court decision shall immediately become final
certified by the local civil registrar who shall submit each and executory. No motion for reconsideration shall be
month a certified list of persons who died during the previous entertained.
month to the election officer of the place where the
deceased is registered. Domino v. Comelec 310 SCRA 546 (1999). Except for the right
to remain in the list of voters or for being excluded thereform
PETITION FOR INCLUSION OR EXCLUSION. Remedies of for the particular election in relation to which the
persons whose application for reactivation, inclusion or proceedings had been held, a decision in an exclusion
correction has been disapproved or those who intend to proceeding, even if final and unappealable does not acquire
exclude a voter from the list of voters. the nature of res judicata. Thus, a decision in an exclusion
proceeding would neither be conclusive on the voters
Panlaqui v. Comelec 613 SCRA 573 – Voters’ political status, nor bar subsequent proceedings on his right
inclusion/exclusion proceedings essentially involve the issue to be registered as a voter in any other election.
of whether a voter shall be included in or excluded from the (Disqualified now for lack of residency…is not res judicata)
list of voters based on the qualifications required by law and
the facts presented to show possession of these Sec. 34 – Petition for Inclusion of Voters in the list – WHO
qualifications. As distinguished from the procedure in MAY FILE: any person whose application for registration –
certificate of candidacies (petition to deny due course or
cancel a certificate of candidacy) on the other hand, the  Has been disapproved by the Board; or
denial/cancellation proceedings involve the issue of whether  Whose name has been stricken out from the list;
there is a false representation of a material fact (Sec. 78).  Whose name was not included in the precinct list of
voters
Sec. 33 - JURISDICTION – The Municipal and Metropolitan  Who has been included therein with a wrong or
Trial Courts shall have original jurisdiction over all cases of misspelled name (after the Board disapproves its
inclusion and exclusion of voters in their respective cities or application for reinstatement or correction of name)
municipalities. (By express provision of Article IX-C, Section may file with the court.
2 (3) of the Constitution, the Comelec shall decide all
questions affecting elections, except the right to vote. This PERIOD TO FILE: Any time except 105 days prior to a regular
question is a justiciable issue which finds redress in the election or 75 days prior to a special election. The petition
judiciary. (Pungutan v. Comelec 43 SCRA 1 (1972). should be supported by a certificate of disapproval of his
application and proof of service of notice upon the Board.
Again – in Panlaqui vs. Comelec 613 SCRA 573 - It is not MTC shall decide within fifteen (15) days after it’s filing.
within the province of the RTC in a voter’s
inclusion/exclusion proceedings to take cognizance of and If the decision is for the inclusion of voters in the permanent
determine the presence of a false representation of a list of voters, the Board shall place the application for
material fact. It has no jurisdiction to try the issues of registration previously disapproved in the corresponding BV
whether the misrepresentation relates to material fact and and indicate in the application for registration the date of the
whether there was an intention to deceive the electorate in order of inclusion and the court which issued the same.
terms of one’s qualifications for public office. The finding
that Velasco was not qualified to vote due to lack of Section 35 – Petition for Exclusion of Voters from the list –
residency requirement does not translate into a finding of a WHO MAY FILE: any registered voter, representative of a
deliberate attempt to mislead, misinform or hide a fact political party or the Election Officer.
which would otherwise render him ineligible.
PERIOD TO FILE: Any time except 100 days prior to a regular
election or 65 days prior to a special election. Supporting

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

documents shall be proof of notice to the Board and to the allowed to vote in their respective place of work (Sec. 12, RA
challenged voter. MTC shall decide within ten (10) days. 7166).

If the decision is for exclusion, the Board, shall remove the RA No. 10380, otherwise known as the “Local Absentee
voters registration record from the corresponding BV, enter Voting for Media Act”, now allow media practitioners to vote
the order of exclusion therein. on specified days earlier than Election Day so that that even if
on Election Day, they are assigned to cover election events
Akbayan v. Comelec March 26, 2001 – The petition for away from their place of registration as voters, they would
exclusion is a necessary component to registration since it is nonetheless have the opportunity to cast their votes.
a safety mechanism that gives a measure of protection
against flying voters, non-qualified registrants, and the like. Limitation: Those entitled to avail of local absentee voting
The prohibitive period, on the other hand, serves as the shall only be allowed to vote for President, VP, Senators, and
purpose of securing the voters substantive right to be Party-List Representative
included in the list of voters.
Grounds for disapproval of the Application for Local
The bone of contention of petitioners in this case is the Absentee Voting
Petition of Akbayan with the Comelec praying for a 2-day 1) The applicant is not a RV or his registration records
special registration of new voters for the May 14, 2001. have been deactivated.
Akbayan postured that there are around 5M Filipinos of 2) It was filed out of time;
voting age who failed to to register before the registration 3) It was not sworn to or otherwise not under oath by
deadline and this would undermine their constitution right to any person authorized to administer oath;
vote and disenfranchise them. Comelec denied the petition 4) It was only photocopied/faxed;
on the grounds of operational impossibility. 5) The Certification portion of the application form is
not duly accomplished.
The SC ruled that the right of suffrage is not absolute, as in
the enjoyment of all other rights, it is subject to existing OVERSEAS ABSENTEE VOTING (OAV) – RA 9189 Absentee
substantive and procedural requirements embodied in our Voters Act of 2003
Constitution, statute and other repositories of law.
Under RA 9189, Filipino citizens who are overseas workers,
Procedural limitation – must undergo the process of immigrants or permanent residents in other countries may
registration, in addition to the maximum requirements set by vote in Philippine national elections when they are away from
the Constitution under Section 1, Article V, the act of the country on the day of the elections; Prior to the
registration being an indispensable precondition and amendment, it further provided that in the case of
essential to the right of suffrage and election process. immigrants or permanent residents, they are required to file
Referring to Section 8 of RA 8189, the law is explicit that “no a sworn statement that they will resume actual physical
registration shall however be conducted during the period permanent residence within three (3) years from approval of
starting 120 days before a regular election and 90 days their registration. (Sec. 5(d))
before a special election.”
A. Scope of OAV – Definition: Absentee voters refers
Sec. 35 of RA 8189 on the hand speaks of the prohibitive to the process by which qualified citizens of the
period within which to file a sworn petition for the exclusion Philippines abroad exercise their right to vote.
of voters from the permanent list of voters. Thus if the (Sec. 3(a))
special registration of voters will be conducted, then the B. Coverage – All citizens of the Philippines abroad
prohibitive period for filing petitions for exclusion must who are not disqualified by law, at least 18 years of
likewise be adjusted to a later date, if not, then no one can age on election day, may vote for President, VP,
challenge the voters list which is violative of the principles of Senators and Party List Representatives (Sec. 4)
due process and would open the registration process to
abuse and seriously compromise the integrity of the voter’s Section 5 – Disqualification:
list and that of the entire election. (a) Those who have lost their Filipino citizenship in
accordance with Philippine laws;
ABSENTEE VOTING (b) Those who have expressly renounced their
Philippine citizenship and who have pledged
Local Absentee Voting – In local absentee voting, public allegiance to a foreign country;
officials and employees, in the performance of their election (c) Those who have committed and are convicted
duties, stationed in places other than the place where they by a final judgment by a court or tribunal of an
are registered voters of (e.g. members of the PNP, AFP, offense punishable by imprisonment of not less
offices of the Comelec, school teachers, among others) are than one (1) year, including those who have
committed and been found guilty of Disloyalty

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

as defined under Article 137 of the Revised other foreign establishments before the closing of voting on
Penal Code, such as disability not having election day shall be counted (Sec. 16.7 and Sec. 18.3).
removed by plenary pardon or amnesty;
Provided, however, That any person b) The counting shall be conducted on site and shall
disqualified to vote upon the expiration of five be synchronized with the start of counting in the Philippines
(5) years after service of sentence; Provided (Sec. 18.1).
further, That the Commission may take
cognizance of final judgments issued by foreign c. The Special Board of Election Inspectors (SBEI)
courts or tribunals only on the basis of shall composed of a chairman and two (2) members
reciprocity and subject to the formalities and  The ambassador, consul general or
processes prescribed by the Rules of Court on career public officer designated by
execution of judgments; the Comelec shall be the chairman.
(d) An immigrant or a permanent resident who is  In the absence of government
recognized as such in the host country, unless officers, two Filipino citizens
he/she executes, upon registration, an affidavit qualified to vote under this Acts
prepared for the purpose by the Commission shall be deputized as members
declaring that he/she shall resume actual (Sec. 18.3)
physical permanent residence in the Philippines  Immediately after the counting,
not later than three (3) years from approval of the SBEI shall transmit by facsimile
his/her registration under this Act. or electronic mail the result to the
a. Such affidavit shall also state that Comelec and the accredited major
he/she has not applied for citizenship political parties.
in another country.
b. Failure to return shall be caused for the 5. Canvassing of OAV – A Special Board of
removal of the name of the immigrant Canvassers (SBOC) composed of a lawyer preferably
or permanent resident from the of the Comelec as chairman, a senior career officers
National Registry of Absentee Voters from any government agency maintaining a post
and his/her permanent disqualification abroad and, in the absence of another government
to vote in absentia; officer, a citizen of the Philippines qualified to vote
(e) Any citizen of the Philippines abroad previously under this Act, shall be constituted to canvass the
declared insane or incompetent by competent election returns.
authority in the Philippines or abroad, as
verified by the Philippine embassies, consulates The SBOC shall transmit by facsimile, electronic mail
or foreign service establishments concerned, or any other safe and reliable means of transmission,
unless such competent authority subsequently the certificate of canvass and the statements of
certifies that such person is no longer insane or votes to the Comelec and the major accredited
incompetent. parties.

Macalintal v. Comelec 405 SCRA 614 (2003) – The execution The certificates of canvass and the statements of
of the affidavit itself is not the enabling or enfranchising act. votes shall be the primary basis for the national
The affidavit required in Section 5(d) is not only proof of the canvass. (Sec. 18.4)
intention of the immigrant or permanent resident to go back
and resume residency in the Philippines, but more Overseas Voting Act of 2013 – The President on May 27,
significantly, it serves as an explicit expression that he had 2013 signed into law RA 10590, OAV 2013, amending the
not in fact abandoned his domicile of origin. The affidavit is Overseas Voting Act of 2003. With the passage of the law,
required of immigrants and permanent residents abroad Filipino immigrants abroad will no longer need to execute an
because by their status in the host countries, they are affidavit stating that they will return to the Philippines within
presumed to have relinquished their intent to return to this 3 years before they are allowed in absentia.
country; thus, without the affidavit, the presumption of
abandonment of Philippine domicile shall remain. In the landmark case of Nicolas-Lewis vs. Comelec, dual
citizens were refused by Comelec to register and vote in the
3. Casting of Ballots in OAV – The overseas voter 2004 Philippine elections, the Supreme Court ruled in 2006
shall cast his ballot within 30 days before election day or 60 that “there is no provision in the dual citizenship law, RA
days before election day in the case of seafarers. (Sec. 16.3) 9225 (Citizenship Retention and Reacquisition Act of 2003 –
requiring duals to actually establish residence and physically
4. Counting of Ballots of OAV – a) Only ballots cast stay in the Philippines first before they can exercise their right
and mailed ballots received by embassies, consulates and to vote.”

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

The ruling established a precedent that dual citizens can save for the residency requirement exacted of an ordinary
register and vote without establishing residence in the conditions, are qualified to vote as ruled in Makalintal vs.
Philippines. A provision in the amended law is inserted to Comelec 405 SCRA 614.
emphasize that dual citizens who reacquired or retained their
Philippine citizenship under RA 9225 can exercise their right POLITICAL PARTIES, PARTY LIST AND CITIZENS ARM
of suffrage.
Article IX-C, Sec. 1 (5), authorizes the Comelec under the
The amended law also mandates the creation of the Resident Constitution to “Register, after sufficient publication,
Election Registration Boards (RERB). The specific provision is political parties, organizations, or coalitions which, in
a new insertion institutionalizing the overseas voting system addition to other requirements, must present their platform
by creating an office within the Comelec exclusively for or program of government; and accredit citizens’ arms of the
overseas voting. Commission on Elections.

The amendments also empowers the Comelec to attain the Section 60 of the OEC/Section 1, Rule 32 of the Comelec
most effective and innovative way of using advance Rules of Procedure provides that any group pursuing the
technology in enfranchising Filipinos overseas without same political ideals may register with the Comelec.
compromising the secrecy and sanctity of the electoral
process. HOW? by filing a verified petition with its Law Department
duly verified by its President and Secretary-General, or any
Loida Nicolas-Lewis, et. al. vs. Comelec G.R. No. 162759,
official duly authorized to do so under its Constitutions and
August 6, 2006. - Petitioners are dual citizens having retained
by-laws.
or reacquired Philippine Citizenship under RA 9225 or the
Citizenship Retention and Reacquisition Act of 2003. As
Before Comelec takes action, the Comelec shall first verify,
such, they sought registration and certification as overseas
through its field offices, the status and capacity of the
absentee voters under RA 9189 or the Overseas Absentee
petitioner and the veracity of the allegations in the petition.
Voting Act of 2003, in order to vote in the May 2004
(Sec. 4, Rule 32). After the verification process, the Petition
elections. However, the Philippine embassy in the US advised
will be published with the Notice of Hearing.
them that per Comelec letter dated September 23, 2003, they
have yet no residence requirement as prescribed by the
Once registered the political party is issued a Certificate of
Constitution. Petitioners sought a clarification from the
Registration (Sec. 7) (1) is conferred juridical personality for
Comelec which thereafter, expressed the opinion that dual
election related purposes (2) public is informed of the party’s
citizens under RA 9225 cannot exercise the right of suffrage
existence and ideals (3) it identifies the party and its officers
under the Overseas Absentee Voting Law because said law
for purposes of regulation by the Comelec. For purposes of
was not enacted for them, hence, they are considered
the electoral process, an organization need not be a political
regular voters who have to meet requirements of residency,
party.
among others.
Limitations on Registration –
ISSUE: Whether or not petitioners and others who might
 It is a religious sect or denomination or
have meanwhile retained and/or reacquired Philippine
association, organized for religious purposes.
citizenship pursuant to RA 9225 may vote as absentee voter
Registration of religious sects are prohibited for
under RA 9189.
the purpose of the electoral process which is made
in the spirit of separation of church and state and
HELD: Section 1 of Article V of the Philippine Constitution
intended to prevent churches from wielding
prescribed residency requirement as a general eligibility
political power. Does not extend to organizations
factor for the right to vote. On the other hand, Section 2
with religious affiliations or to political parties
thereof, authorizes congress to devise a system wherein an
which derive their principles from religious beliefs.
absentee may vote, implying that a non-resident may, as an
 Those who seek to achieve their goals through
exception to the residency prescription in the preceding
unlawful means
section, be allowed to vote.
 Those which refuse to adhere to the Constitution
There is no provision in the dual citizenship law (RA 9225),  Those which are supported by any foreign
requiring “duals” to actually establish residence and government (Sec. 2(5) Article IX-C)
physically stay in the Philippines first before they can exercise
their right to vote. On the contrary, RA 9225, in implicit Cancellation of Registration (Sec. 8) –Upon verified
acknowledgement that “duals” are most likely non-residents, complaint of any interested party, or motu propio by the
grants under Section 5(1) the same right of suffrage as Commission, the registration of any political party, coalition
granted to an absentee voter under RA 9189 which aims to of political parties or organizations under the party-list
enfranchise as much as possible all overseas Filipinos, who, system may be cancelled after due notice and hearing on the
following grounds:

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

 (a) Acceptance by the political party, coalition of the expulsion of a sitting party-list representative from the
political parties, or organizations or any of its HR, on one hand and from his party-list organization on the
candidates, of financial contributions from foreign other. The case involves two rival factions of the same party-
governments and/or their agencies for activities list organization Ating Koop headed by Atty. Lico who
related to elections. represents the organization in the HR and the other group by
 (b) Violation of laws, rules or regulations relating to Amparo Rimas (respondents – Rimas Group. Based on the
elections, plebiscites, referenda or initiative. Constitution and By laws, its highest policy making body is the
 © Untruthful statements in its petition for National Convention. The Central Committee takes over
registration when the National Convention is not in session. In the 2010
 (d) The said political party, coalition of political elections Ating Koop earned a seat in the HR and Lico took his
parties or organization has become a religious sect oath of office and assumed office.
or denomination, is pursuing its goals thru violence
or other unlawful means, is refusing to adhere to or A term sharing agreement was signed by the nominees where
uphold the Constitution of the Philippines, or is Lico was to serve as party rep for the 1st year of the 3-year
receiving support from any foreign government; tem. In a subsequent convention which was controlled by
 (e) Failure to comply with applicable laws, rules or the Rimas group, Atty. Lico was resolved to be expelled for
regulations of the Commission certain acts in violation of its rules and regulations. It was
 (f) Failure to field official candidates in the last two filed with Comelec which upheld the validity of the expulsion
preceding elections or failure of their candidates to with a declaration that to the Rimas group. Comelec made
obtain at least five (5) per centum of the votes cast reference to the Lokin case where its said that when the
in the last two preceding elections. resolution of an intra-party controversy is necessary or
incidental to the performance of the constitutionally-granted
Jurisdiction of Comelec over Inter-Party Disputes/Power to functions of the Comelec, it can step in and exercise
Register Political Parties jurisdiction over the intra-party matter. Hence, the SC the
argument of Lico that Comelec has no jurisdiction. However,
Samson Alcantara, et. al. vs. Comelec 696 SCRA 547 (2013) – the Lokin involved nominees and not incumbent members of
Under the Constitution, the Comelec is empowered to Congress. Hence, Comelec no longer has jurisdiction.
register political parties. In the exercise of its power to
register political parties, the Comelec necessarily possesses As regards the issue on which group legitimately represents
the power to pass upon the question of who, among the Ating Koop (the elections held in Cebu in a meeting by Lico’s
legitimate officers of the part-list group, are entitled to group and the meeting by the Rimas group in Paranaque)
exercise the right and privileges granted to a party-list group were Comelec recognized the Rimas group, the SC ruled that
under the law. The Comelec’s jurisdiction on this point is Comelec committed grave abuse of discretion since the
well-settled and is not here disputed. amendments to the Constitution and By laws of Ating Koop
were not registered with the Comelec. Neither elections were
Luis Lokin Jr./Teresita Planas v. Comelec/CIBAC 674 SCRA valid.
538 (2012)
NATURE OF A PARTY-LIST ORGANIZATION
In Atienza v. Comelec (612 SCRA 961 (2010), it was expressly
settled that the Comelec possessed the authority to resolve A party-list organization owes its existence to the State and
intra-party disputes as a necessary tributary of its the latter’s approval must be obtained through its agent, the
constitutionally mandated power to enforce election laws Comelec. The SC made reference to its ruling in Dayao V.
and register political parties. The Court, therein cited Kalaw Comelec (689 SCRA 412), where it declared that it is the
v. Comelec and Palmares v. Comelec which uniformly upheld State, acting through the Comelec, that breathes life to a
the Comelec’s jurisdiction over intra-party disputes: As ruled party-list organization. The State, through the Comelec is a
in Kalaw v. Comelec, the Comelec’s powers and functions party to the principal contract entered into by the party-list
under Section 2, Article IX-C of the Constitution, “include the organization and its members – the Constitution and By-
ascertainment of the identity of the political party and its Laws- such that any amendment to these contracts would
legitimate officers responsible for the acts.” The Court also constitute a novation requiring the consent of all the parties
declared in another case that the Comelec’s power to register involved. Hence, amended to the bylaws of the party list
political parties necessarily involved the determination of the organization should become effective only upon approval by
persons who must act on its behalf. Thus, the Comelec may the Comelec. (similar to the requirement of filing the
resolve an intra-party leadership dispute, in a proper case amended bylaws and subsequent conformity of the SEC
brought before it, as an incident of its power to register under the corporation law. (this will be cross referenced to
political parties. the case of Reye vs. Comelec in 708 SCRA 197 in a Petition to
Deny Due Course a Certificate of Candidacy under Section 78
In Lico vs. Comelec 771 SCRA 596 (2015) – the pivotal issue of the OEC).
submitted with the SC of the jurisdiction of the Comelec over

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

Liberal Party vs. Commission on Elections 620 SCRA 393 Pending resolution, a Certificate of Nomination of Sen.
(May 6, 2010), the SC distinguished REGISTRATION from Panfilo Lacson as LDP candidate for President was filed with
ACCREDITATION of a political party. the Comelec which was signed by Rep. Aquino as LDP
Secretary General.
The root of this petition before the SC is the Nationalista
Party-Nationalista Party Coalition (NP-NPC) petition before Comelec issued a Resolution granting the petition with LEGAL
the COMELEC for registration as a coalition and accreditation EQUITY for both Petitioner and Oppositor (Angara Wind and
as the dominant minority party. The Comelec En Banc Aquino Wing).
approved the registration of NP-NPC as a coalition, but
Comelec did NOT rule on the accreditation aspect. Hence, ISSUE: Whether or not Comelec gravely abused its discretion
the Petition before the SC that Comelec gravely abused its in issuing the subject Resolution.
discretion. The SC ruled that the registration of a coalition
and the accreditation of a dominant minority party are two RULING – the only issue is simply “Who as between the
separate matters that are substantively distinct from each Party Chairman and the Secretary General has the authority
other. to sign certificates of candidacy of the official candidates of
 Section 2(5), Article IX-C and Rule 32 of the CRP the party.
regulate the registration of political parties,
organizations or coalition of political parties. Yes. Comelec acted with grave abuse of discretion. While it
Accreditation as a dominant party is governed by has jurisdiction to rule upon questions of party identity and
Comelec Resolution No. 8752, Section 1 of which leadership as an incident to its enforcement powers. It well
states that the petition for accreditation shall be within its competence to inquire into which party officer has
filed with the Clerk of the Commission who shall authority to sign and endorse certificate of candidacy of
docket it as an SPP (means Special Proceedings (DM) party’s nominees. And to resolve the issue raised, the
case. This was the manner the NP-NPC was Comelec need only to turn to the Party Constitution and
docketed. election laws. The Comelec Resolution is INDECISION in the
 Registration of political parties is a special guise of equity. It chose not to because of its irrational fear
proceeding assigned to a Division for handling of treading, as Aquino contends, on “unchartered” territories
under the CRP. No similar clear cut rules is available but which have long been chartered by jurisprudence.
to a petition for accreditation as a dominant party.
 Registration must first take place before a request Comelec divided the LDP into wings both having authority to
for accreditation can be made. Accreditation is the nominate candidates for every elective position.
next natural step to follow after registration. Consequently, Comelec planted seeds of confusion among
the electorate who are apt to be confounded by two
When the Comelec En Banc, resolved the registration of the candidates from a single political party. This was not only a
NP- NPC the case is terminated and ripe for review by the SC disservice to the opposition but to the voting public as well as
via a Petition for Certiorari. The issue with respect to its Resolution facilitated, rather than forestalled, the division
accreditation is a separate issue which is treated in a separate of the minority party.
proceedings. As ruled, a Motion for Reconsideration of a
Resolution of the Comelec En Banc is a prohibited pleading Agapay ng Indigenous Peoples Rights Alliance (A-IPRA) v.
(Sec. 1(d) Rule 13). The remedy available to a party is a Comelec 696 SCRA 563 – the Supreme Court reiterated its
petition for certiorari with the SC pursuant to Article IX-A, ruling in Laban that “the ascertainment of the identity of a
Sec. 7 and Rule 65 of the Rules of Court. political party and its legitimate officers is a matter that is
well within its authority. The source of this authority is not
Laban ng Demokratikong Pilipino, represented by its other than the fundamental law itself, which vests upon the
Chairman Edgardo J. Angara v. Comelec, et. al. 423 SCRA Comelec the power and function to enforce and administer
665, (the Comelec misapplied equity in this case). LDP all laws and regulations relative to the conduct of election.”
informed the Comelec by way of Manifestation that only the
Party Chairman or his authorized representative may endorse Damasen vs. Tumamao 613 SCRA 49 (2010) – the discretion
the COC of the party’s official candidates; that Rep. Butch of accepting members to a political party is a right and a
Aquino was on “indefinite force leave” and in the meantime privilege, a purely internal matter, which the Court cannot
Ambassador Enrique Zaldivar was designated Acting meddle in. The reason behind the right given to a political
Secretary General. party to nominate a replacement where a permanent vacancy
occurs in the Sanggunian is to maintain the party
Aquino in a comment alleged that the Party Chairman does representation as willed by the people in the election (Sec. 45
not have the authority to impose disciplinary sanctions on the (b) of RA 7160 Rule on Succession and as held in Navarro v.
Secretary General and that the Manifestation filed has no CA 672 SCRA 355 (2010). Damasen was not a bonafide
basis praying that Comelec disregards the same. Comelec member. Tumamao was husband of the VM who died).
issued an order requiring the parties to file verified petition.

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

PARTY LIST 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
R.A. 7941, otherwise known as An Act Providing for the
“marginalized and underrepresented” sector.
Election of Party-List Representatives through the Part-List
3. Political parties can participate in partly-list elections
System. The party-list system is a mechanism of the
provided they register under the party-list system
proportional representation in the election of representatives
and do not field candidates in legislative district
to the HR from national, regional and sectoral parties or
elections. A political party, whether major or not,
organizations or coalitions thereof, registered with the
that field candidates in legislative district elections
Comelec, to enable Filipinos belonging to the marginalized
can participate in party-list elections only through its
and underrepresented sectors to contribute legislation that
sectoral wing that can separately register under the
would benefit them. (Sec. 2)
party-list system. The sectoral wing is by itself an
independent sectoral party, and is linked to a
Party-list representation shall constitute 20% of the total
political party through a coalition.
number of representatives by selection or election from the
4. Sectoral parties or organizations may either be
labor, peasant, urban poor, indigenous cultural minorities,
“marginalized and underrepresented” or lacking in
women, youth and such other sectors as may be provided by
“well-defined political constituencies.” It is enough
law, except the religious sector (Sec. 11 and Art. V, Sec. 5(2)
that their principal advocacy pertains to the special
1987 Constitution)
interests and concerns in their sector. The sectors
that are “marginalized and underrepresented”
NOTE: The party-list system is composed of three (3) different
include labor, peasant, fisherfolk, urban poor,
groups:
indigenous cultural communities, handicapped,
(1) national parties or organizations;
veterans, and overseas workers. The sectors that
(2) regional parties or organizations; and
lack “well-defined political constituencies” include
(3) sectoral parties or organization.
professionals, the elderly, women and the youth.
5. A majority of the members of the sectoral parties or
National and regional parties or organization are different
organization that represent the “marginalized and
from sectoral parties or organizations. The former need not
underrepresented” must belong to the “M and U”
be organized along sectoral lines and not represent any
sector they represent. Similarly, a majority of the
particular sector nor should they be marginalized and
members of sectoral parties or organization that lack
underrepresented.
“well-defined constituencies” must belong to the
sector they represent. The nominees of sectoral
Atong Paglaum, Inc. vs. Comelec G.R. Nos. 694 SCRA 477
parties or organizations that represent the “M and
(2013), the Supreme Court ruled – “Sec. 5(1), Art. VI of the
U” or that represent those who lack “well-defined
Constitution is crystal clear that there shall be “a party-list
constituencies”, either must belong to their
system of registered national, regional and sectoral parties or
respective sectors, or must have a track record or
organization. “The commas after the words national, and
advocacy for their respective sectors. The nominees
regional, separate national and regional parties from sectoral
of national and regional parties or organizations
parties. Had the framers of the 1987 Constitution intended
must be bona fide members of such parties or
national and regional parties to be at the same time sectoral,
organizations.
they would have stated “national and regional sectoral
6. National, regional and sectoral parties or
parties.” They did not, precisely because it was never their
organizations shall not be disqualified if some of
intention to make the party-list system exclusively sectoral.
their nominees are disqualified, provided that they
have at least one nominee who remains qualified.
What the framers intended, and what they expressly wrote in
Section 5(1), could not be any clearer: the party-list system is
COCOFED v. Commission on Elections 703 SCRA 165 –
composed of 3-different groups, and the sectoral parties
Section 4 and 5 of RA 7941 distinguished. Section 4 of RA
belong to only one of the 3 groups.”
7941, a party-list group already registered “need not register
anew” for purposes of every subsequent election, but only
In this case, the Court laid down new parameters to be
needs to file a manifestation of intent to participate with the
observed by the Comelec in screening parties, organizations
Comelec. Section 5 on the other hand provides, that an
or associations seeking registration and/or accreditation
applicant for registration has to file with the Comelec, not
under the party-list system, viz:
later than 90 days before the election, a verified petition
1. Three different groups may participate in the party
stating its desire to participate in the party-list system as a
list system: (1) national parties, (2) regional parties
national, regional or sectoral party or organization or a
or organizations, and (3) sectoral parties or
coalition of such parties or organization. The applicant is
organizations.
required to submit its constitution, by-laws, platform of
government, list of officers, coalition agreement and other

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

relevant information as the Comelec may required. Aside

from these, the law requires the publication of the applicant’s Lokin, Jr. vs. Commission on elections 621 SCRA 385 (June
petition in at least 2 national newspapers of general 22, 2010), the SC ruled that Comelec cannot issue rules and
circulation. The Comelec then resolves the petition, regulations that provide a ground for the substitution of a
determining whether the applicant has complied with all the party-list nominee NOT written in R.A.7941.
necessary requirements.
Sec. 8 provides – “Nomination of Party-List Representatives.
Abang Lingkod Party-List (Abang Lingkod) vs. Commission on Each registered party, organization or coalition shall submit
Elections 708 SCRA 133 (2013). In this case following the to the Comelec not later than 45 days before the election a
guidelines set forth in the Atong Paglaum case, the Court list of names, not less than five (5), from which party-list
remanded to the Comelec the cases of previously registered representatives shall be chosen in case it obtains the
party-list groups, including that of Abang Lingkod, to required number of votes.
determine whether they are qualified under the party-list
system pursuant to the new parameters laid down by the A person may be nominated in one (1) list only. Only
Court, and in the affirmative, be allowed to participate in the persons who have given their consent in writing may be
May 2013 party-list elections. named in the list. The list shall not include any candidate for
any elective office or a person who has lost his bid for an
Facts of the case show that Abang Lingkod is a sectoral elective office in the immediately preceding election. NO
organization that presents the interests of peasant farmers change of names or alteration of the order of nominees
and fisherfolks, and was registered under the party-list shall be allowed after the same shall have been submitted
system on December 22, 2009. It participated in the May to the Comelec except in cases (1) where the nominee dies,
2010 elections, but failed to obtain the number of votes or (2) withdraws in writing his nomination, (3) becomes
needed for a seat in the HR. On May 31, 2012, AL manifested incapacitated in which case the name of the substitute
before the Comelec its intent to participate in the May 2013 nominee shall be placed last in the list. Incumbent sectoral
elections. representatives in the HR who are nominated in the party-
list system shall not be considered resigned.”
On August 2012, Comelec issued Resolution No. 9513 that
required previously register PLG that have filed their CIBAC (Citizens’ Battle Against Corruption) thru its President
respective Manifestations of Intent, to undergo summary Emmanuel Villanueva manifested their intent to participate in
evidentiary hearing for purposes of determining their the May 14, 2007 synchronized national and local elections
continuing compliance with the requirements under RA 7941 and submitted their list of 5 nominees (Villanueva, Lokin
and the guidelines set forth in Ang Bagong Bayani-OFW Labor (herein petitioner), Cruz-Gonzales, Tugna and Galang). The
Party v. Comelec case. Comelec cancelled the registration of list was later published in the newspapers of general
Abang Lingkod pointing out that it failed to establish its circulation. Before the elections, Villanueva filed a certificate
TRACK RECORD in uplifting the cause of the M and U, that it of nomination, substitution and amendment of the list of
merely offered photographs of some alleged activities it nominees whereby it withdrew the nominations of Lokin,
conducted after the May 2010 elections, some of the Tugna and Galang and substituted Borje. The amended list
photographs were edited and superimposed to make it included Villanueva, Cruz-Gonzales and Borje. Subsequently,
appear that AL participated in the activities which constitutes Villanueva transmitted to Comelec the signed petitions of
untruthful/unlawful statements in its petition that can serve more than 81% if the CIBAC members in order to confirm the
as ground for the cancellation of its registration. Further withdrawal of the nominations of Lokin, Tugna and Galang.
Comelec opined that AL failed to show that its nominees are
themselves M and U or that they have been involved in Based on the Party-List Canvas Report, it showed that CIBAC
activities aimed at improving the plight of the M and U was entitled to a second seat, hence, the counsel of CIBAC
sectors it claims to represent. filed with the Comelec sitting as National Board of
Canvassers, a request to proclaim Lokin as the 2nd nominee
Among the issues raised is the insistence of Comelec in which was opposed by Villanueva and Cruz-Gonzales. Since
requiring party-list groups to present evidence showing that Comelec failed to act on the filing of the certificate of
they have a track record in representing the M and U. The nomination, substitution and amendment of the list of
Court held that in Atong Paglaum, there is no mention that nominees and the petitions of the more than 81% of CIBAC
sectoral organizations intending to participate in the PL members, Villanueva filed a petition to confirm the said
elections are still required to present a track record. It is certificate with the Comelec which was docketed as E.M. No.
sufficient that the ideals represented by the sectoral 07-054. In the meantime, Comelec as NBC partially
organizations are geared towards the cause of the sector/s proclaimed several party lists as having won which included
which they represent. Since the track record is no longer a Cibac.
requirement, a group’s misrepresentation as to it track record
cannot be used as a ground to deny or cancel its registration The Secretary General of CIBAC informed the Secretary
– it is no longer material to its qualification under the PLS. General of the HR to formally swear Lokin into office but

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

which was denied in view of the pendency of E.M. No. 07-054 same parties, because they were based on different causes of
which approved the withdrawal of the nominations of Lokin action and the reliefs they sought were different.
et. al. and the substitution of Borje. Cruz-Gonzales was
proclaimed as the official second nominee. Comelec gravely abused its discretion in promulgating
Section 13 of Res. No. 7804 as it expanded the exceptions
Lokin brought before the SC via Mandamus to compel under Sec. 8 of RA 7941 Section 8 enumerates only 3
respondent Comelec to proclaim him as the official second instances in which the party-list organization can substitute
nominee of CIBAC. Also, in another petition, Lokin assailed another person in place of the nominee. The enumeration is
Sec. 13 of Resolution No. 7804 (Rules and Regulations exclusive.
Governing the filing of Manifestation of Intent to Participate
and submission of Names of Nominees under the Party-List) Cocofed Case – As early as February 8, 2012, Comelec had
and its resolution in E.M. No. 07-054. informed, through its Resolution No. 9359, all registered
parties who wished to participate in the May 2013 party-list
The Comelec asserts that a petition for certiorari is an elections that they shall file with the Comelec a Manifestation
inappropriate recourse in law due to the proclamation of of Intent to Participate in the party list election together with
Cruz-Gonzales as representative and her assumption of that its list of at least 5 nominees, no later than May 31, 2012.
office; that Lokin’s proper recourse was an electoral protest Under Sec. 6(5) of RA 7941, violation of or failure to comply
filed in the HRET, therefore, the Court has no jurisdiction over with laws, rules and regulations relating to elections is a
the matter being raised by Lokin. CIBAC posits that Lokin is ground for the cancellation of registration. Cocofed failed to
guilty of forum shopping for filing a petition for mandamus submit a list of 5 nominees (submitted only 2 nominees)
and a petition for certiorari, considering that both petitions despite ample opportunity to do so before the elections,
ultimately seek to have him proclaimed as the second which is a violation imputable to the party under said
nominee of CIBAC. provision.

ISSUE: a) Whether or not the Court has jurisdiction over the Pursuant to Section 8 of RA 7941, the Court cannot leave to
controversy. the party the discretion to determine the number of
nominees it would submit. The submission of the list is a
The Court has jurisdiction. The controversy involving Lokin is statutory requirement for the registration of party-list groups
neither an EP nor an action for QW, for it concerns a very and the submission of this list is part of a registered party’s
peculiar situation in which Lokin is seeking to be seated as continuing compliance with the law to maintain its
second nominee of CIBAC. Although an EP may properly be registration.
available to one part-list organization seeking to unseat
another party-list organization to determine which between A party-list group’s previous registration with the Comelec
the defeated and the winning party-list organizations actually confers no vested right to the maintenance of its registration.
obtained the majority of the legal votes, Lokin’s case is not In order to maintain a party in a continuing compliance
one in which a nominee of a particular party-list organization status, the party must prove not only its continued
thereby wants to unseat another nominee of the same party possession of the requisite qualifications but, equally, must
list. Neither does an action for QW lie, considering that the show its compliance with the basic requirements of the law.
case does not involve the ineligibility and disloyalty of Cruz-
Gonzales to the RP, or some other case of disqualification. Alliance for Nationalism and Democracy (ANAD) v. Comelec
705 SCRA 340 (2013) – the Supreme Court reiterated. .
Lokin has correctly brought this special civil action for compliance with Section 8 of RA 7941 is essential as the said
certiorari against the Comelec to seek the review of its provision is a safeguard against arbitrariness. Section 8 rids a
resolution in accordance with Section 7 of Article IX-A of the party-list organization of the prerogative to substitute and
1987 Constitution, notwithstanding the oath and assumption replace its nominees, or even to switch the order of the
of office by Cruz-Gonzales. The constitutional mandate is nominees, after submission of the list to Comelec.
now implemented by Rule 64 of the 1997 Rules of Procedure,
which provides for the review of the judgments, final orders Abayhon vs. HRET et. al 612 SCRA 375/Palparan Jr. vs. HRET
or resolution of the Comelec and the Commission on Audit. et. al. – These two cases were consolidated and jointly
As Rule 64 states, the mode of review is by a petition for resolved as it both concerns the authority of the HRET to pass
certiorari in accordance with Rule 65 to be filed in the SC upon the eligibilities of the nominees of the party-list groups
within the limited period of 30 days. The Court has original that won seats in the lower house of Congress.
and exclusive jurisdiction over Lokins certiorari and for
mandamus. Abayhon is the 1st nominee of the Aangat Tayo party-list that
won a seat in the HR during the 2007 elections. Palparan on
Both actions, certiorari and mandamus did not violate the the other hand was the 1st nominee of Bantay party-list. A
rule against forum shopping even if the actions involved the petition for QW was filed with HRET against the party-list
groups and its nominee claiming that it was not eligible for a

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

party-list since it did not represent the marginalized and registered national, regional and sectoral parties or
underrepresented sectors. Abayhon is the spouse of an organizations or coalitions thereof, which will enable Filipino
incumbent congressional district representative and likewise citizens belonging to the marginalized and UR sectors x x x x
does not belong to the UR and marginalized. Petitioners also to become members of the HR “.
claim that Abayhon lost her bid as party-list rep called An
Waray in the immediately preceding elections of May 10, The Court held that initially, the authority to determine the
2004. Palparan also was alleged to have committed various qualifications of a party-list nominee belongs to the
human rights violations against the marginalized sectors organization and to choose five from among the aspiring
(Bantay represents the victims of communist rebels, CAFGU, nominees to comply with the law. But where an allegation is
security guards and former rebels.) made that the party or organization had chosen and allowed
a disqualified nominee to become its party-list rep in the
Abayhon and Palparan postures that the Comelec already lower house and enjoy the secured tenure that goes with the
confirmed the status of the party list as a national multi- position, the resolution of the dispute is taken out of its hand.
sectoral party-list organization, that HRET had no jurisdiction Hence, pursuant to Section 17 of Article VI, the HRET being
over the petitioner for QW since the petitioners collaterally the sole judge of all contests relating to, among other things,
attacked the registration of the party-list organization, a the qualifications of the members of the HR, the HRET has
matter that fell within the jurisdiction of the Comelec. That it jurisdiction to hear and pass upon their qualifications. The
was the party-list that was taking a seat in the HR and not HRET was correct in dismissing the QW and retaining
them, being only its nominees. All questions involving their authority to rule on the qualifications.
eligibility as nominee, were internal concerns of the
organization. The HRET dismissed the petition against the Philippine Guardians Brotherhood, Inc. (PGBI) v. Comelec
party-list but upheld its jurisdiction over nominees who both 619 SCRA 585 (DELISTING)– The Comelec may motu propio
filed a MR which was denied. Hence, this special civil action OR upon verified complaint of any interested party, remove,
for certiorari alleging that the HRET gravely abused its or cancel, after due notice and hearing, the registration of
discretion. any national, regional or sectoral party, organization or
coalition IF It: (a) fails to participate in the last 2 preceding
The Court made reference to Sec. 5(1) of Article VI (which elections; OR (b) fails to obtain at least 2% of the votes casts
identifies who the “members” of that House are. The HR under the party-list system in the 2 preceding elections for
shall be composed of not more than 250 members, unless the constituency in which it was registered (Section 6 RA
otherwise fixed by law, who shall be elected from legislative 7941).
districts apportioned among the provinces, cities, and the
Metropolitan Manila area in accordance with the number of The word “OR” is a disjunctive term signifying disassociation
their respective inhabitants, and on the basis of a uniform and independence of one thing from the other things
and progressive ration, and those who, as provided by law, enumerated. A party list group or organization that failed to
shall be elected through a party-list system of registered garner 2% in a prior election and immediately thereafter did
national, regional and sectoral parties or organizations. not participate in the preceding election – is something that is
not covered by Section 6(8) of RA 7941. From this
Clearly the “members” of the HR are two kinds. . .1) those perspective, it may be an unintended gap in the law and as
who shall be elected from legislative districts and 2) “those such is a matter for Congress to address. This case abandoned
who shall be elected through a party-list system”. From the the Minero vs. Comelec G.R. No. 177548 May 10, 2007.
point of view of the Constitution, it is the party-list rep who
are “elected” into office, NOT their parties or organizations. Philippine Guardians Brotherhood, Inc. v. Comelec 646 SCRA
These representatives are elected, however, through that 63 (2011) - Comelec removed PGBT in the list of qualified
peculiar party-list system that the Constitution authorized parties vying for a seat under the party-list system of
and that Congress by law established where the voters cast representation in violation of the status quo order of the
their votes for the organizations or parties to which such Supreme Court. An equally important aspect of a democratic
party-list reps belong. electoral exercise is the right of free choice of the electorates
on who shall govern them – the party-list system affords
Once elected, both the district reps and the party-list reps are them this choice, as it gives the marginalized and
treated in like manners. They have the same deliberative underrepresented sectors the opportunity to participate in
rights, salaries, and emoluments. They can participate in the governance. Comelec was cited for contempt by the Court.
making of laws that will directly benefit their legislative
districts or sectors. They are also subject to the same term Effect of removal by Comelec of PGBI in the list: As it was the
limitations of 3 years for a max of 3 consecutive terms. The Comelec itself which prevented PGBI from participating in the
party list system act itself recognizes party list nominees as 10 May 2010 party-list elections when it deleted PGBI, with
members of the HR (Sec. 2, RA 7941 Declaration of Policy – grave abuse of discretion, from the list of accredited party-list
The State shall promote proportional representation in the groups or organizations and, thereafter, refused to return it
election of reps in the HR through a party-list system of to the list despite the Court’s directive, PGBI should, at the

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

very least, be deemed to have participated in the 10 May Respecting Section 15 of RA 7941, the Court likewise found
2010 no textual support for HRET’s ratiocination that the provision
did not apply to Villanueva’s shift of affiliation from CIBAC’s
Amores vs. HRET et. al 622 SCRA 593 (2010) – Amores via a youth sector to its overseas Filipino workers and their families
petition for QW with the HRET questioned the legality of the sector as there was no resultant change in party list
assumption of office of Emmanuel Joel Villanueva as rep of affiliation. Section 15 reads “ Change of Affiliation: Effect –
CIBAC. It was alleged among other things, that Villanueva Any elected party list rep who changes his political party or
assumed office without a formal proclamation by the sectoral affiliation during his term of office shall forfeit his
Comelec, disqualified to be a nominee of the youth sector of seat; Provided, That if he changes his political party or
CIBAC since at the time of the filing of his certificates of sectoral affiliation within 6 months before an election, he
nomination and acceptance, he was already 31 years old or shall not be eligible for nomination as party-list rep under
beyond the age limit of 30 pursuant to Section 9 of RA 7941 his new party or organization.
and that his change of affiliation from CIBAC’s youth sector to
its overseas Filipino workers and their families sector was not The wordings of Section 15 is clear as it covers changes in
effected at least 6 months prior to the May 14, 2007 elections both political party and sectoral affiliation and which may
so as to be qualified to represent the new sector under occur within the same party since multi-sectoral party-list org
Section 15 of RA 7941. are qualified to participate in the Philippine party-list system.
A nominee who changes his sectoral affiliation within the
The HRET dismissed the petition as it found the petition to be same party will only be eligible for nomination under the new
filed beyond the 10 days reglementary period, that the age sectoral affiliation if the change has been effected at least 6
qualification for youth sectoral nominees under Section 9 of months before the elections. Sec. 9 and 15 apply to
RA 7941 applied only to those nominated as such during the Villanueva.
first 3 congressional terms after the ratification of the
Constitution or until 1998, unless a sectoral party is As regards the contention that Villanueva is the 1st nominee
thereafter registered exclusively as representing the youth of CIBAC, whose victory was later upheld, is NO moment. A
sector, which CIBAC, a multi sectoral organization, is not. As party-list org’s ranking of its nominees is a mere indication of
regards the shift of affiliation, it was held that Section 15 did preference , their qualifications according to law are a
not apply as there was no resultant change in party list different matter.
affiliation.
Ang Ladlad LGBT Party v. Comelec 618 SCRA 32 – Ladlad is an
ISSUES: (1) whether the petition for QW was dismissible for organization composed of men and women who identify
having been filed unseasonably; and (2) whether Section 9 themselves as lesbians, gays, bisexuals or transgendered
and 15 of RA 7941 apply to Villanueva. individuals. They applied for registration with Comelec in
2006 and its accreditation was denied on the ground that the
As to the first issue, the SC found grave abuse of discretion on organization had no substantial membership. Ladlad in 2009
the part of HRET. The Court overlooked the technicality of again filed a petition for registration which was dismissed by
timeliness and rules on the merits since the challenge goes Comelec on moral grounds (Bible and Koran).
into Villanueva’s qualifications, it may be filed at anytime
during his term. Also date of proclamation was not clear. As The SC ruled that moral disapproval is not a sufficient
to the second and more substantial issue, the Court made governmental interest to justify exclusion of homosexuals
reference to Section 9 of RA 7941 which provides that in from participation to the party list system. The Constitution
case of a nominee of the youth sector, he must at least be provides in Sec. 5, Art. III that “No law shall be made
25 but not more than 30 years of age on the day of the respecting an establishment of religion, or prohibiting the
election. The youth sectoral rep who attains the age of 30 free exercise thereof.” At bottom, what our non-
during his term shall be allowed to continue in office until establishment clause calls for is “government neutrality in
the expiration of his term. religious matters.” Clearly, “governmental reliance on
religious justification is inconsistent with this policy of
The Court did not find any textual support on the neutrality.” Hence, the Court finds that it was grave violation
interpretation of HRET that Section 9 applied only to those of the non-establishment clause for the Comelec to utilize the
nominated during the first 3 congressional terms after the Bible and the Koran to justify the exclusion of ang Ladlad.
ratification of the Constitution or until 1998. A cardinal rule
in statutory construction is that when the law is clear and In sum, the crucial element is not whether a sector is
free from any doubt or ambiguity, there is no room for specifically enumerated, but whether a particular
construction or interpretation. Only room for application. organization complies with the requirements of the
The distinction is nowhere found in the law. When the law Constitution and RA 7941. The SC found that Ladlad has
does not distinguish, we must not distinguish. sufficiently demonstrated its compliance with the legal
requirements for accreditation.

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

Veterans Federation Party v. Comelec 342 SCRA 244, the SC The SC ruled that the party-list organizations or parties must
provided for the four unique parameters of the Filipino Party- factually and truly represent the marginalized and
list System which are as follows – underrepresented constituencies mentioned in Section 5 of
 The 20% allocation – the combined number of all RA 7941 and the persons nominated by the party-list
party-list congressmen shall not exceed 20% of the candidate-organization must be “Filipino citizens belonging to
total membership of the HR, including those under the marginalized and underrepresented sectors,
the party-list; organizations and parties.”
 The 2% threshold – only those parties garnering a
minimum of 2% of the total valid votes cast for the In remanding the case to Comelec the SC laid down the
party-list system are “qualified” to have a seat in the following guidelines –
HR;
 The 3-seat limit – each qualified party, regardless of  First, the PP, sector or organization must
the number of votes it actually obtained, is entitled represent the marginalized and underrepresented
to a maximum three seats, that is, one qualifying and groups identified in Section 5 of RA 7941. In other
two additional seats; words, it must show – through the Constitution,
 The proportional representation – the additional articles of incorporation, by-laws, history, platform
seats which a qualified party is entitled to shall be of government and track record – that it
computed “in proportion to their total number of represents and seeks to uplift marginalized and
votes. underrepresented sectors.

In this case, following the May11, 1998 national elections  Second, while major political parties are expressly
which is the first election for party-list representation, the allowed by RA 7941 and the Constitution to
Comelec en banc proclaimed 14 parties and organizations participate, they must comply with the declared
which had obtained at least 2% of the total number of votes statutory policy enabling Filipino citizens
cast for the party-list system which constitute a total of 25 belonging to the M and U to be elected to the HR.
nominees short of the 52 party-list representatives who
should actually sit in the house. The PAG-ASA files with the  Third, religious sector may not be represented in
Comelec a Petition to proclaim the full number of party-list the party-list system. In view of the objections
representative provided by the Constitution. They alleged directed against the registration of Ang Buhay
that the filling up of the 20% membership of party list Hayaang Humabong, which is allegedly a religious
representative in the House, as provided under the group, the Court notes the express constitutional
Constitution, was mandatory. Nine other party list provision that the religious sector may not be
organizations filed their respective motions to intervene represented in the party-list system.
seeking the same relief as that sought by PAG-ASA on Furthermore, the Constitution provides that
substantially the same grounds. “religious denominations and sects shall not be
registered.” The prohibition was explained by a
The Comelec, contrary to its rules and regulations governing member of the Constitutional Commission in this
the said elections, instead proclaimed the other 38 party-list wise “The prohibition is on any religious
organization notwithstanding its not having garnered the organization registering as a political party. I do
required 2% votes. RULING: Sec. 5(2) of Article VI which not see any prohibition here against a priest
states that the sectoral representation shall constitute the running as a candidate. This is not prohibited here;
20% is not “mandatory” as it merely provides a ceiling for it is the registration of a religious sect as a political
party-list in congress. And, obtaining absolute proportional party.”
representation is restricted by the 3-seat per party limit to a
maximum of two additional slots. Comelec was held to have  Fourth, it must not be disqualified under the
abused its discretion in disregarding an act of Congress. ground enumerated under Section 6 of RA 7941
(not a religious sect or denomination or
The 8-point guidelines for screening party-list participants association organized for religious purposes,
advocates violence or unlawful means to seek its
In Bagong Bayani Labor Party v. Comelec 359 SCRA 698 goal; a foreign party or organization; receives
(2001) (also reiterated the ruling in Veterans), at issue is the support from any foreign government, fails to
Omnibus Resolution of the Comelec which approved the comply with laws rules or regulations relating to
participation of 154 organizations and parties and which the elections, declared untruthful statement in its
SC remanded to the Comelec for the latter to determine petition, it has ceased to exist for at least one (1)
evidentiary hearings, whether the 154 parties and year, it fails to participate in the last 2 preceding
organizations allowed to participate in the party-list elections elections or failed to obtain at least 2% of the
complied with the requirements of the law. votes cast under the party list system in the 2

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

preceding elections for the constituency in which it articles of incorporation, bylaws, history, platform of
was registered) government and track record – that it represents and seeks to
uplift marginalized and underrepresented sectors. Verily,
 Fifth, the party or organization must not be an majority of its membership should belong to the marginalized
adjunct of, or a project organized or an entity and underrepresented.
funded or assisted by the government (referring
to MAD of Richard Gomez). It must be Bantay Republic Act or BA-RA 7941 vs. G.R. No. 177271, May
independent of the government. The participants 4, 2007, 523 SCRA 1 - Petitioners reacting on an emerging
of the government or it officials in the affairs of a public perception that the individuals behind the party-list
party-list candidate is not only illegal and unfair to groups do not, as they should, actually represent the poor
other parties, but also deleterious to the objective and marginalized sectors. Petitioners, wrote a letter to the
of the law; to enable citizens belonging to Comelec requesting that the complete list of the nominees of
marginalized and underrepresented sectors and all parties who have been accredited pursuant to Comelec
organizations to be elected to the House of Resolution No. 7804 prescribing rules and regulations to
Representatives. govern the filing of manifestation of intent to participate and
submission of names of nominees under the party-list system
 Sixth, the party must not only comply with the of representation in connection with the May 14, 2007
requirements of the law, its nominees must elections be published. The Comelec vehemently did not
likewise do so. Section 9 of RA 7941 reads – accede to the request of the petitioners, it based its refusal to
“qualifications of Party-List Nominees – No person disclose the names of the nominees of subject party-list
shall be nominated as party-list representative groups on Section 7 of RA 7941 (more specifically the last
unless he is a natural born citizen of the sentence which states: “the names of the party-list nominees
Philippines, a RV, a resident of the Philippines for a shall not be shown on the certified list.”.
period of not less than 1 year immediately
preceding the day of the election, able to read and The Comelec believe that the party list elections must not be
write, a bona-fide member of the party or personality oriented. Abalos said under RA 7941, the people
organization which he seeks to represent for at are to vote for sectoral parties, organizations, or coalitions
least 90 days preceding the day of the elections not for their nominees.
and is at least 25 years of age on the day of the
election. ISSUE: Whether or not the disclosure of the names of the
nominees are covered by the Right of Public to information.
 Seventh and Eight not only the candidate party
must represent the M and U sectors, so also must HELD: The Comelec has a constitutional duty to disclose and
its nominees must likewise be able to contribute release the names of the nominees of the party list groups.
to the formulation and enactment of appropriate No national security or like concerns is involved in the
legislation that will benefit the nation as a whole. disclosure of the names of the nominees of the party-list
groups in question. The last sentence of Section 7 is limited
AKLAT (Assosasyon Para sa Kaunlaran Ng Lipunan at in scope and duration, meaning, that it extends only to the
Adhikain Para sa Tao, Inc.) vs. Comelec, G.R. No. 162203, 14 certified list which the same provision requires to be posted
April 2004, came up with a ruling on the “Window-Dressing” in the polling places on election day. To stretch the coverage
of party-list participant. In this case, Comelec found that of the prohibition to the absolute nothing in RA 7941 that
significantly, Aklat and A.K.L.A.T. have substantially the same prohibits the Comelec from disclosing or even publishing
incorporators. In fact 4 of Aklat’s 6 incorporators are also through mediums other than the “Certified list” the names of
incorporators of A.K.L.A.T.. This substantial similarity is hard the party-list nominees. The Comelec obviously misread the
to ignore and bolsters the conclusion that the supposed re- limited non-disclosure aspect of the provision as an absolute
organization undertaken by Aklat is plain window-dressing as bar to public disclosure before the May 2007 elections. The
it has not really changed its character as a business interest of need for voters to be informed about matters that have a
persons in the book publishing industry. bearing on their choice. The ideal cannot be achieved in a
system of blind voting, as veritably advocated in the assailed
The Court observed that Aklat’s articles of incorporation and resolution of the Comelec.
document entitled The Facts About Aklat which were
attached to its petition for re-qualification contain general NEW FORMULA IN THE ALLOCATION OF SEATS FOR PARTY-
averments that it supposedly represents marginalized groups LIST REPRESENTATIVES
such as the youth, indigenous communities, urban poor and
farmers/fisherfolks. These general statements do not Banat et. al. vs. Comelec G.R. 178271/12972 586 SCRA 210
measure up to the first guideline set by the Bagon Bayani (2009) – Aksyon Magsasaka-Partido Tinig Masa (AKMA-
case for screening party-list participants. Sec. 5 of RA 7941 PTM) v. Comelec 758 SCRA 2015. After the VFP v. Comelec,
provides that “it must show – through its constitution, G.R. No. 136781, 136786 and 136795, 06 October 2000,

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

ruling of the Supreme Court and the controversial application As regards a Party-List system, a “candidate” also refers to
of the “Panganiban Formula” by the Abalos Commission, “any registered national, regional, or sectoral party,
Party-list participants in Banat et al., filed separate organization or coalition thereof that has filed a
complaints against the Comelec on the proper allocation of manifestation to participate under the part-list system which
seats in the party-list system. On 23 April 2009, the Supreme has not withdrawn or which has not be disqualified before
Court declared the 2% threshold clause in relation to the the start of the campaign period.” (RA 7941).
distribution of the additional seats of RA 7941
unconstitutional. Comelec Resolution No. 9615 adopted a broader definition
of the term “candidate” for the 13 May 2013 Elections to
Following Section 5, Article VI, par. 2 of the 1987 include party-list in include all the above-definitions.
Constitution, 20% of all seats in the HR is reserved for Qualifications
sectoral representatives elected in the party list system. This
formula is now called the “Carpio formula.” For President and Vice-President – No person may be elected
President unless he is a natural-born citizen of the
Under the Banat and Bayan Muna cases (G.R. No. 179271 and Philippines, a registered voter, able to read and write, at least
G.R. No. 179295, 21 April 2009), the SC laid down the latest 40 years of age on the day of the election, and a resident of
formula in the allocation of seats for party-list participants: the Philippines for at least 10 years immediately preceding
such election.
1) The parties, organizations and coalitions shall be ranked
from the highest to the lowest based on the number of votes There shall be a Vice-President who shall have the same
they garnered during the elections. qualifications and term of office and be elected with, and in
the same manner, as the President. He may be removed
2) The parties, organizations and coalitions receiving at least from office in the same manner as the President (Article VII,
2% of the total votes cast for the party-list system shall be Section 2 and 3, Constitution)
entitled to one guaranteed seat each.
For Senator – No person shall be a Senator unless he is a
3) Those garnering sufficient number of votes, according to natural-born citizen of the Philippines and, on the day of
the ranking above-mentioned in paragraph no. 1 hereof, shall election, is at least 35 years of age, able to read and write, a
be entitled to additional seats in proportion to their total registered voter, and a resident of the Philippines for not less
number of votes until all the additional seats are allocated. than 2 years immediately preceding the elections. (Article VI,
(2% cap no longer considered in the second round since the Section 3, Constitution)
2% cap was declared unconstitutional in the Banat Case.)
For Members of the House of Representatives – No person
4) Each party, organization, or coalition shall be entitled to shall be a Member of the HR unless he is natural-born citizen
not more than 3 seats. of the Philippines, and, on the day of election, is at least 25
years of age, able to read and write, and except the party list
Banat abandoned the matter of computation held in the representatives, a registered voter in the district in which he
Veterans Party case considering that the intention was to fill shall elected, and a resident thereof for a period of not less
the 20% seats in the HR. than on year immediately preceding the election. (Article VI,
Section 6, Constitution)

ELIGIBILITY OF CANDIDATES For Party-List Nominees – No person shall be nominated as

party-list representative unless he is a natural born-citizen of
Candidate defined: The term “candidate” refers to any person the Philippines, a registered voter, a resident of the
aspiring or seeking an elective public office, who has filed a Philippines for a period of not less than one (1) year
certificate of candidacy by himself or through an accredited immediately preceding the day of the election, able to read
political party, aggroupment, or coalition of parties. (Sec. 79, to read and write, a bona fide member of the party or
OEC) organization which he seeks to represent for at least 90 days
preceding the day of the election and is at least 25 years of
The terms “candidate” under the Automated Election System age on the day of the election.
(AES) in 2010, refers to “any person aspiring for or seeking an
elective public office who has filed his COC and who has not In case of a nominee of the youth sector, he must at least be
died or withdrawn or otherwise disqualified before the start 25 but not more than 30 years of age on the day of the
of the campaign period for which he filed his COC. Provided, election. Any youth sectoral representative who attains the
that, unlawful acts or omissions applicable to a candidate age of 30 during his term shall be allowed to continue in
shall take effect only upon the start of the aforesaid office until the expiration of his term. (RA 7941).
campaign period.” (Comelec Reso. No. 8678).

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

Bengzon III v. HRET 357 SCRA 545 (2001) – Repatriation the constitutional provision defining the qualification or
results in the recovery of the original nationality. This means eligibility requirements for one aspiring to run for and serve
that a naturalized Filipino who lost his citizenship will be as senator. Getting elected would be of little value if one
restored to his prior status as a naturalized Filipino citizen.. cannot assume office for non-compliance with the drug-
On the other hand, if he was originally a natural-born citizen testing requirement.
before he lost his Philippine citizenship, he will be restored to
his former status as a natural-born Filipino.
CERTIFICATE OF CANDIDACY
Local Government Officials – An elective local official must
be a citizen of the Philippines; a registered voter in the 1. Under the Manual Elections – The COC of candidacy shall
barangay, municipality, city or province or, in the case of a be filed on any day from the commencement of the election
member of the sangguniang panlalawigan, sangguniang period but not later than the day before the beginning of the
panlungsod or sangguniang bayan, the district where he campaign period; Provided, that in cases of postponement or
intends to be elected; a resident therein for at least one (1) failure of election under Section 5 and 6 of the OEC, no
year immediately preceding the day of the election; able to additional COC shall be accepted except in cases of
read and write Filipino or any other local language or dialect. substitution of candidates as provided un Section 77. (Section
75, OEC)
Common to All Offices - Voluntary renunciation of the office COC must be filed not later than the day before the
for any length of time shall not be considered as an date for the beginning of the campaign period. (Sec. 7, RA
interruption in the continuity of the service for the full term 7166)
for which they were elected.
2. Under the AES –RA 9369 provides – “For this purpose, the
RA No. 9165 (Comprehensive Dangerous Drugs Act of 2002) Commission shall set the deadline for the filing of
Section 36(g) provides that “all candidates for public office COC/petition of registration/manifestation to participate in
whether appointed or elected both in the national and local the election. Any person who files his COC within this period
government shall undergo mandatory drug tests. Comelec shall only be considered as a candidate at the start of the
issued Resolution No. 6486 on 23 December 2003 campaign period for which he filed his COC; Provided that,
implementing 9165. Publication of the results will be unlawful acts or omissions applicable to a candidate shall
published. But the resolution does not indicate whether or effect only upon the start of the aforesaid campaign period.
not candidates who test positive for drugs will be allowed to Xxxx “. This provision repealed Section 11 of RA 8436
assume office if they win.) provides “for this purpose, the deadline for filing of
COC/petition for registration/manifestation to participate in
Social Justice Society v. Dangerous Drugs Board, G.R. No. the election shall not be later than 120 days before the
157870, 03 November 2008 – Sec. 36(g) of RA 965 and elections.
Comelec Resolution No. 6486 was challenged as the same
illegally impose an additional qualification on candidates for Section 73, BP 881/Omnibus Elections Code (OEC) , par. (1)
senator. Senator Pimentel point out that, subject to the – Certificate of Candidacy – No person shall be eligible for
provision on nuisance candidates, a candidate for senator any elective office unless he files a sworn certificate of
needs only to meet the qualification laid down in Section 3, candidacy within the period fixed therein.
Art. VI of the Constitution, to wit: (1) citizenship; (2) voter
registration; (3) literacy; (4) age and (5) residency. Beyond Sinaca v. Mula 315 SCRA 266, it is the nature of a formal
these stated qualification requirements, candidates for manifestation to the whole world of the candidate’s political
senator need not possess any other qualification to run for creed or lack of political creed.
senator and be voted upon and elected as member of the
Senate. Coquilla v. Comelec G.R. No. 139801, 31 May 2000 – A
certificate which did not indicate the position for which the
As ruled, Sec. 36(h) of RA 9165, as sought to be implemented candidate is running may be corrected. The SC ruling on the
by Comelec assailed Resolution, effectively enlarges the effectiveness of the amended COC filed to correct the defect
qualification requirements enumerated in Sec. 3, Art. VI of declared that the filing of an amended COC even after the
the Constitution. As couched, said Sec. 36(g) unmistakably deadline but before the election was substantial compliance
requires a candidate for senator to be certified illegal drug- with the law which cured the defect.
clean, obviously a pre-condition to the validity of a certificate
of candidacy for senator or, with like effect, a condition sine Section 73 (3) BP 881 (Effect of filing multiple certificates of
qua non to be voted upon and, if proper, be proclaimed as candidacy)– No person shall be eligible for more than one
senator-elect. Viewed in its proper context, the office to be filed in the same election (requirement to run for
implementing Comelec Resolution add another qualification elective office), and if he files his certificate of candidacy for
layer to what the 1987 Constitution, as the minimum, more than one office, he shall not be eligible for any of them.
required for membership in the Senate. Sec. 36(h) infringed

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

Section 74 of BP 881 requires, among others, that a Sec. 66 BP 881/OEC. An appointive official is considered
candidate shall use in a COC the name by which he has been resigned upon the filing of his/her certificate of candidacy.
baptized, unless the candidate has changed his name through The forfeiture is automatic and the operative act is the
court-approved proceedings, and that he may include one moment of filing which shall render the appointive official
nickname or stage name by which he is generally or popularly resigned (Nicolasora v. CSC 1990 case and PNOC v. NLRC,
known in the locality. (Villafuerte vs. Comelec 717 SCRA 312) May 31, 1993), where the provision of Sec. 66 is applicable
also to GOCC and can constitute as a just cause for
Withdrawal of Certificate of Candidacy - However, before termination of employment in addition to those set forth in
the expiration of the period for the filing of the certificates of the Labor Code.
candidacy, the person who has filed more than one certificate
of candidacy may submit a written declaration under oath the Section 66 has already been repealed by RA 9369 to wit –
office for which he desires to be eligible and cancel the “Section 13. Section 11 of RA 8436 is hereby amended to
certificate of candidacy for the other office or offices. read as follows: “Any person holding a public office or
position, including active members of the AFP, and officers
Pilar v. Comelec 245 SCRA 759 (1995) – The withdrawal of a and employees in GOCC, shall be considered ipso facto
certificate of candidacy does not extinguish one’s liability for resigned from his/her office and must vacate the same at
the administrative fine imposed by Section 14 of R.A. No. the start of the day of the filing of his/her certificate of
7166, which requires every candidate to file a true statement candidacy.
of all contributions and expenditures in connection with the
elections. Sec. 67 OEC – An elective official running for a position other
than the one he is holding in a permanent capacity, except for
Villanueva v. Comelec 122 SCRA 636 (1983) – the withdrawal President and Vice-President, is deemed resigned upon the
of a certificate of candidacy not made under oath produces filing of his certificate of candidacy. Section 67 has been
no legal effect; for all intents and purposes, the withdrawing repealed by Section 14 of RA 9006 (The Fair Elections Law), a
candidate remains a candidate. candidate holding an elective position whether national or
local running for office other than the one he is holding in a
Go v. Comelec 357 SCRA 739 (2001) – Where affidavit of permanent capaci is considered resigned only upon the
withdrawal filed. There is nothing that mandates that the expiration of his term..
affidavit of withdrawal must be filed with the same office
where the certificate of candidacy to be withdrawn was filed. Sinaca v. Mula 315 SCRA 266 (1999) – The provision of the
election law regarding certificates of candidacy, such as
Thus, it can be filed directly with the main office of the signing and swearing on the same, as well as the information
Comelec, the office of the regional election supervisor required to be stated therein, are considered mandatory
concerned, the office of the provincial election supervisor of prior to the elections. Thereafter, they are regarded as
the province to which the municipality involved belongs, or merely directory.
the office of the municipal election officer of the said
municipality. Quinto v. Comelec G.R. No. 189698, 22 February 2010 – the
Court ruled that substantial distinctions exists between
elective official and appointive officials. The former occupy
EFFECTS: FILING OF CERTIFICATE OF CANDIDACY their office by virtue of the mandate of the electorate. They
are elected to an office for a definite term and may be
In Talaga v. Comelec/Alcala 683 SCRA 197 (2012), the High removed therefrom only upon stringent conditions. On the
Court provided for the rationale for the filing of CoC within a other hand, appointive officials hold their office by virtue of
prescribed period – The evident purposes of the requirement their designation thereto by an appointing authority. Some
for the filing of CoCs and in fixing the time limit for filing them appointive officials hold their tenure while other serve at the
are, namely; (a) to enable the voters to know, at least 60 days pleasure of the appointing authority.
prior to the regular election, the candidates from among
whom they are to make the choice; and (b) to avoid
confusion and inconvenience in the tabulation of the votes SUBSTITUTION OF CANDIDACY
cast.
Section 77 BP 881. Candidates in case of death,
If the law does not confine to the duly-registered candidates disqualification or withdrawal of another. After the last day
the choice of the voters, there may be as many persons voted for the filing of certificates of candidacy, an official candidate
for as there are voters, and votes may be cast even for of a registered or accredited political party dies, withdraws or
unknown or factitious persons as a mark to identify the votes is disqualified for any cause, only a person belonging to, and
in favor of a candidate for another office in the same election. 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

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

political party concerned may file his certificate of candidacy final before the May 10, 20014 elections. Considering that no
for the office affected in accordance with the preceding substitution of Cayat was made, Thomas R. Pelileng, Sr. his
sections not later than mid-day of the date of the election. rival remained the only candidate for the mayoralty post in
If the death, withdrawal or disqualification should occur Buguias, Benguet. (Cayat v. Comelec 522 SCRA 23 (2007)).
between the day before the election and mid-day of election
day, said certificate may be filed with the board of election In contrast, after Barbara Ruby substituted Ramon, the May
inspectors in the political subdivisions where he is a 10, 2010 elections proceeded with her being regarded by the
candidate or, in the case of candidates to be voted for by the electorate of Lucena City as a bona fide candidate. To the
entire electorate of the country, with the Commission. electorate, she became a contender for the same position
vied for by Castillo, such that she stood on the same footing
A valid certificate of candidacy is an indispensable requisite as Castillo. Such standing as a candidate negated Castillo’s
in case of substitution of a disqualified candidate under Sec. claim of being the candidate who obtained the highest
77. Under said provision, the candidate who dies, withdraws number of votes, and being consequently entitled to assume
or is disqualified must be an official candidate of a registered the office of Mayor. The Court stressed that the existence of
or accredited political party and the substitute candidate a valid CoC is a condition sine qua non for a valid
must be of the same political party as the original candidate substitution. While Barbara won, although disqualified
and must be duly nominated as such by the political party. because of invalid substitution, the law of succession will
apply by operation of law.
Rulloda vs. Comelec G.R. No. 154198 January 20, 2003 – The
absence of a specific provision governing substitution of Effect of Substitution of Candidates after Official Ballots
candidates in barangay elections cannot be inferred as a Have Been Printed in AES - in case of valid substitution after
prohibition against said substitution. Such a restrictive the official ballots have been printed, the votes cast for the
construction cannot be read into the law where the same is substituted candidates shall be considered votes for the
not written. Indeed, there is more reason to allow substitutes.” (Sec. 12 RA 8436, 22 December 1997)
substitution of candidates where no political parties are
involved than when political considerations or party Section 12 of RA 9006, 12 February 2001 provides – in case
affiliations reign, a fact that must have been subsumed by of valid substitutions after the official ballots have been
law. printed, the votes cast for the substituted candidates shall be
considered as stray votes but shall not invalidate the whole
Miranda v. Abaya, G.R. No. 136351 July 28, 1999 – ballot. For this purpose, the official ballot shall provide
Substitution is not allowed if certificate of the candidate to be spaces where the voters may write the name of the
substituted was cancelled, because he was running for the 4th substitute candidates if they are voting for the latter;
consecutive term. A person without a valid COC cannot be Provided, however, that if the substitute candidate has the
considered a candidate in much the same way as any person same family name, this provision shall not apply.
who has not filed any COC at all cannot, by any stretch of the
imagination, be a candidate at all. Since Section 12 of RA 8436 has not been amended nor
repealed by RA 9369, it can be assumed that the votes cast
Talaga v. Comelec & Castillo and Castillo v. Comelec & for the substituted candidates shall be considered votes for
Talaga, 683 SCRA 197 (2012) – In this case, Ramon was the substitutes in an AES for the reason that the counting
disqualified having been found to be ineligible for the machine will not read any unwarranted marks on the official
position of Mayor of Lucena City which disqualification ballot such as writing the name of the substitute candidate.
became final prior to the May 10, 2010 elections. Barbara
Ruby filed her CoC in substitution of Ramon. Castillo was the
opponent who filed a disqualification case against Barbara RESIDENCY REQUIREMENT
Ruby on the ground that the substitution was not valid in
view of the ineligibility of Ramon, Ramon did not voluntarily Svetlana P. Jalosjos vs. Comelec/Tupag/Estrellada 699 SCRA
withdraw his CoC before the elections in accordance with 507 (2013) – The SC stressed that to be an actual and physical
Section 73 and that she was not an additional candidate for resident of a locality, one must have a dwelling place where
the position of Mayor because her filing of her CoC was one resides no matter how modest and regardless of
beyond the period fixed by law. Comelec declared the ownership. The fact that the residential structure where
substitution of Barbara Ruby as invalid on May 20, 2011. petitioner intends to reside was still under construction on
the lot she purchased means that she has not yet established
Barbara Ruby garnered the highest number of votes while actual and physical residence in the barangay, contrary to the
Castillo garnered second. Castillo contends that since the declaration of her witnesses that she has been an actual and
disqualification of Ramon was final prior to the election he physical resident of Brgy. Tugas since 2008.
should be declared winner. Castillo made reference to case
of Cayat. In this case, Rev. Fr. Nardo B. Cayat, the petitioner Meynard Sabili v. Comelec/Florencio Librea 670 SCRA 664
in Cayat, was disqualified and his disqualification became (2012). It is not required that a candidate should have his

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

own house in order to establish his residence or domicile in a rather to “domicile” or legal residence, that is, “the place
place. It is enough that he should live in the locality even in a where the party actually or constructively has his permanent
rented house or that of a friend or relative. What is of central home, where he, no matter where he may be found at any
concern then is that the person identified and established a given time, eventually intends to return and remain (animus
place in the said City where he intended to live in and return manendi)”. A domicile of origin is acquired by every person
to for an indefinite period of time. at birth. It is usually the place where the child’s parents
reside and continues until the same is abandoned by
Jalosjos v. Comelec 683 SCRA 1 24 April 2012 – Jalosjos came acquisition of a new domicile (by choice.)
to the Philippines in November 2008 to live with his brother
in Zamboanga Sibugay. It is evident that Jalosjos did so with Romualdez-Marcos v. Comelec 248 SCRA 30 (1995). “it is the
intent to change his domicile for good. He left Australia, gave fact of residence, not a statement in the certificate of
up his Australian citizenship, and renounced his allegiance to candidacy which ought to be decisive in determining whether
that country. In addition, he reacquired his old citizenship by or not an individual has satisfied the constitutions residency
taking an oath of allegiance to the Republic of the Philippines, qualification requirement. The said statement becomes
resulting in his being issued a Certificate of Reacquisition of material only when there is or appears to be a deliberate
Philippine Citizenship by the BID. By his acts, Jalosjos attempt to mislead, misinform or hide a fact which would
forfeited his legal right to live in Australia, clearly proving that otherwise render the candidate ineligible.
he gave up his domicile there. And he has since lived
Perez v. Comelec 317 SCRA 640, the qualifications of Rodolfo
nowhere else except in Ipil, Zamboanga Sibugay.
Aguinaldo former governor of Cagayan was at issue when he
filed his certificate of candidacy as member of the HR for the
Mitra vs. Commission on Elections, Antonio Gonzales and
3rd district of Cagayan in the 11 May 1998 elections. The
Orlando Balbon, Jr. 622 SCRA 744 (July 2010). In considering
Court reiterated the meaning of residence as “the place
the residency issue, the dwelling where a person
where the party actually or constructively has his permanent
permanently intends to return to and to remain – his or her
home” where he, no matter where he may be found at any
capacity or inclination to decorate the place, or the lack of it,
given time, eventually intends to return and remain, while
IS IMMATERIAL. Comelec gravely abused its discretion when
domicile, is that to which the Constitution refers when it
it determined the fitness of a dwelling as a person’s
speaks of residence for the purpose of election law. And, the
residence based solely on very personal and subjective
fact that a person is a RV in one district is not proof that he is
assessment standards when the law is replete with
not domiciled in another district.
standards that can be used. Comelec used wrong
considerations in arriving at the conclusion that Mitra’s
Torayno Sr., vs. Comelec 337 SCRA 574, the issue in this case
residence is not the residence contemplated by law.
is the residence qualification of Vicente Emano who filed his
certificate of candidacy for Mayor of Cagayan de Oro. Court
Asistio v. Trindad Pe-Aguirre, G.R. No. 191124, 27 April 2010
explained that the purpose of the residence as required by
– the High Court said – “Domicile is not easily lost. To
Constitution and the law as a qualification for seeking and
successfully effect a transfer thereof, one must demonstrate:
holding public office, is to give candidates the opportunity to
(1) an actual removal or change of domicile; (2) a bona fide
be familiar with the needs, difficulties and aspiration,
intention of abandoning the former place of residence and
potentials for growth and all matters vital to the welfare of
establishing a new one; and (3) acts which corresponding
their constituencies. On the part of the electorate, to
with that purpose. There must be animus manendi coupled
evaluate the candidate’s qualification s and fitness for the job
with animus non revetendi. This purpose to remain in or at
they aspire for. In this case Emano, cannot be deemed to be a
the domicile of choice must for for an indefinite period of
stranger or newcomer when he ran for and was
time; the change of residence must be voluntary; and the
overwhelmingly voted as city mayor having garnered a
residence at the place chosen for the new domicile must be
margin of 30K votes.
actual.
Papandayan, Jr. vs. Comelec 381 SCRA 133. Domicile
Limbona v. Comelec, G.R. No. 181970, June 25, 2008 – There
connotes a fixed permanent residence to which when absent
is no hard and fast rule to determine a candidate’s
for business or pleasure, or for like reasons, one intends to
compliance with residency requirement since the question of
return. The requirements in order to acquire a new domicile
residence is a question of intention.
by choice are: (a) an intention to remain there; (b) residence
or bodily presence in the new locality; and (c) an intention to
Coquilla vs. Comelec 385 SCRA 607 – A former Filipino citizen
abandon the old domicile.
cannot be considered a resident of the Philippines and in the
locality he intends to be elected prior to his reacquisition of
Philippine citizenship.

The “term residence” is to be understood NOT in its common

acceptation as referring to “dwelling” or “habitation”, but

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

ACTIONS TO CHALLENGE CANDIDACY OF A CANDIDATE OR  the act of giving material consideration or money
DISQUALIFY CANDIDATE should be for the purpose of influencing, inducing or
corrupting the voters or public officials performing
1) Sec. 12 of the OEC – electoral functions.
 any person who has been declared by
competent authority insane or incompetent NOTE: All the offenses mentioned in Section 68 refer to
(when we say incompetence, the same may election offenses under the OEC, not to violations of other
refer not only to mental illness, disease or penal laws. There is absolutely nothing in the language of
physical disability but also to other causes which Section 68 that would justify including violation of the 3-term
may include minority or lack of residence limit rule, or conviction by final judgment of the crime of
requirement) falsification under the Revised Penal Code, as one of the
 any person who has been sentenced by final ground or offenses covered under Section 68. (Aratea vs.
judgment for subversion, insurrection, rebellion Commission on Elections 683 SCRA 105).
 for any offense for which carries a penalty of
more than 18 months 3) Sec. 69 – Petition to Abate a Nuisance Candidate – the
 for a crime involving moral turpitude Comelec, may motu propio or upon verified petition of an
interested party, refuse to give due course to or cancel a
The disqualification is removed by certificate of candidacy if it is shown that it is filed in
 plenary pardon or granted amnesty contemplation of a nuisance candidate or cancel the same if
 upon declaration by a competent authority already filed. This is an exception to the ministerial duty of
that said insanity or incompetence had the Comelec and its officers to receive a certificate of
been removed candidacy under Section 76 of the OEC.
 expiration of a period of 5 years from his
service of sentence unless of course within WHO IS A NUISANCE CANDIDATE
the same period he again becomes
disqualified.  one who files his certificate to put the election
process in mockery or disrepute
2) Sec. 68 of the OEC  contemplates the likelihood of confusion which the
 those guilty of giving money or material similarity of surnames of two (2) candidates may
consideration to influence, induce or corrupt voters generate. (in the appreciation of ballots, when two
or public official performing electoral functions; candidates with the same name or surname and only
 those who have committed terrorism to enhance his the name or surname is written, will be considered
candidacy stray vote and will not be counted for either of the
 those who have spend in the election campaign candidate unless one of the candidate with the same
more than that required by law (Php10/RV/Php5.00) name or surname is an incumbent – equity of the
incumbent rule)
Period to file – A petition to disqualify a candidate based on  by other circumstances or acts which clearly
Sec. 68, as would validly cancel any votes cast for him as demonstrate that the candidate has no bonafide
“stray votes” if granted, should be filed before the day of the intention to run for office, thus would prevent the
elections. This will enable the substitute candidacy to be filed faithful determination of the true will of the people.
thus giving the electorate a choice of alternative candidates. (Bautista vs. Comelec 298 SCRA 480)

NOTE: Section 68 deals with a petition to disqualify a WHO CAN FILE – a petition to declare a candidate a nuisance
candidate for other violation of the election code as specified candidate shall be filed by any registered candidate for the
in said section, and against a candidate who is a permanent same office within 5 days from the last day of the filing of
resident or immigrant of a foreign country. That section does the certificate of candidacy. (As amended by Section 5 of RA
not specify a period within which to file the petition. 6646

In Codilla vs. De Venecia 393 SCRA 634, it was held that the
Rev. Elly Chavez Pumatong v. Comelec, G.R. No. 161872 13
power of Comelec to disqualify candidates is limited to the
April 2004 – The rationale behind the prohibition against
enumerations mentioned in Section 68 of the OEC. Elements
nuisance candidates and the disqualification of candidates
to be proved are as follows:
who have not evinced a bona fide intention to run for office is
easy to divine. The State has a compelling interest to ensure
 the candidate, personally or through his instructions,
that its electoral exercises are rational;, objective and orderly.
must have given money or other material
Towards this end, the State takes into account the practical
consideration and
considerations in conducting elections. Inevitably, the greater
the number of candidates, the greater the opportunities for

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

logistical confusion, not to mention the increased allocation candidates to be deleted from list of official candidates if the
of time and resources in preparation for the election. These official ballots still carry their name?
practical difficulties should, of course, never attempt the
State from the conduct of a mandated electoral exercise. At The Court holds that the rule in Resolution No. 4116
the same time, remedial actions should be available to considering the votes cast for a nuisance candidate declared
alleviate these logistical hardships, whenever necessary and as such in a final judgment, particularly where such nuisance
proper. Ultimately, a disorderly election is not merely a candidate has the same surname as that of the legitimate
textbook example of inefficiency, but a rot that erodes faith candidate, not stray but counted in favor of the latter,
in our democratic institutions. remains a good law. As earlier discuss, a petition to cancel or
deny a CoC under Section 69 of the OEC should be
Martinez III vs. HRET 610 SCRA 53 (January 2010) – distinguished from a petition to disqualify under Section 68.
Proceedings in cases of nuisance candidates require prompt Hence, the legal effect of such cancellation of a CoC of a
disposition. The declaration of a duly registered candidate as nuisance candidate cannot be equated with a candidate
nuisance candidate results in the cancellation of his COC. In disqualified on grounds provided in the OEC and the Local
this case, Celestino Martinez and private respondent Benhur Government Code.
Salimbangon were among the candidate for member of the
HR in the 4th District of Cebu. Celestino Martinez filed a The possibility of confusion in names of candidates if the
petition to abate Edelito C. Martinez as nuisance candidate names of nuisance candidates remained in the ballot on
which was decided one month after the elections. election day, cannot be discounted or eliminated, even under
Salimbangon was proclaimed winner with 67,277 votes the automated voting system especially considering that
against Martinez 67,173 votes or a difference of 104 votes. voters who mistakenly shaded the oval beside the name of
Martinez filed an Election Protest Ad Cautelam based on 300 the nuisance candidate instead of the bonafide candidate
ballots more less with only “Martinez” or “C. Martinez” they intended to vote for could no longer ask for replacement
written on the line which was considered stray on the ground ballots to correct the same.
that there was another congressional candidate who had the
same surname. The Comelec and HRET considered the votes Joseph Timbol v. Comelec 751 SCRA 456 – On October 5,
nd
stray. 2012 Timbol filed a CoC for member of the SP of the 2
District of Caloocan City. On January 15, 2013 he received a
ISSUE: What then is the legal effect of declaring a nuisance Subpeona from the Comelec Election Officer ordering him to
candidate as such in a final judgment AFTER the elections? appear before the Comelec Office for a clarificatory hearing in
Should ballots containing only the similar surname of two (2) connection with his CoC. Timbol argued that he was not a
candidates be considered as stray votes in favor of the bona nuisance candidate having ranked 8th in the last elections and
fide candidate? that, he has sufficient resources to sustain his campaign.

The votes should be counted in favor of the bonafide He pointed out that notwithstanding the clarificatory hearing,
candidate. The SC ruled that Martinez should not be his name was already among those listed as nuisance
prejudiced by the Comelec’s inefficiency and lethargy. candidate in the Comelec website. The Election Officer
recommended that his CoC be given due course and that his
Dela Cruz v. Comelec G.R. No. 192221, 13 November 2012 - name be removed in the said list. His name was however not
(Should the votes cast for such nuisance candidate be removed from the list. Comelec contends that the petition is
considered stray or counted in favor of the bona fide moot and academic considering that the 2013 elections had
candidate?) – In an automated election, the Supreme Court, already been conducted; that even assuming the petition is
likewise ruled not to consider the votes cast for a nuisance moot and academic, it maintained that it did not gravely
candidate as stray but to count them in favor of the bona fide abused its discretion as he was given the opportunity to be
candidate. heard during the clarificatory hearing and that the inclusion
of the CoC of Timbol was denied considering that the ballots
“As far as Comelec is concerned, the confusion caused by had already started to be printed.
similarity of surnames of candidates for the same position
and putting the electoral process in mockery or disrepute, Whether moot and academic: A case is moot and academic if
had already been rectified by the new voting system where it “ceases to present a justiciable controversy because of
the voter simply shades the oval corresponding to the name supervening events so that a declaration thereon would be of
of their chosen candidate. However, as shown in this case, no practical use or value. When a case is moot and academic,
Comelec issued Resolution No. 8844 on May 1, 2010, 9 days the SC general declines jurisdiction over it. Exceptions: The
before the elections, with sufficient time to delete the names SC has taken cognizance of moot and academic cases when
of disqualified candidates not just from the Certified List of (1) there was grave violation of the Constitution; (2) the case
Candidates, but also from the Official Ballot. Indeed, what involved a situation of exceptional character and was of
use will it serve if Comelec orders the names of disqualified paramount public interest, (3) the issues raised required the
formulation of controlling principles to guide the Bench, the

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

Bar and the public; and (4) the case was capable of repetition 12 and 68 of the OEC, or Section 40 of the LGC. On the other
yet evading review. hand, a petition to deny due course to or cancel a CoC under
Sec. 78, can only be grounded on a statement of a material
RULING: while case is moot and academic, does not preclude representation in the said certificate that is false. The
from setting forth “controlling and authoritative doctrines” to petitions also have different effects. While a person who is
be observed by Comelec in motu propio denying due course disqualified under Section 68 is merely prohibited to continue
to or cancelling CoC of alleged nuisance. This motu propio as a candidate, the person whose certificate is cancelled or
authority is always subject to the alleged nuisance denied due course under Section 78 is not treated as a
candidate’s opportunity to be heard. – an essential element candidate at all, as if he/she never filed a CoC. Thus in
of due process. Miranda v. Abaya, this Court made the distinction that a
candidate who is disqualified under Section 68 can validly be
4) Sec. 78 OEC – Petition to Deny due Course or to Cancel a substituted under Section 77, but a person whose CoC has
Certificate of Candidacy. “A verified petition seeking to deny been denied due course or cancelled under Section 78 cannot
due course or to cancel a certificate of candidacy may be filed be substituted because he/she is never considered a
by the person exclusively on the ground that any material candidate.” (also ruled in Fermin v. Comelec 574 SCRA 782)
representation contained therein as required under Section
74 (contents of the COC) of the OEC is false. The petition Mayor Barbara Ruby Talaga vs. Comele/Alcala 683 SCRA 197
may be filed at any time not later than 25 days from the time (2012) – The High Court reiterated, that a Section 78 petition
of the filing of the certificate of candidacy and shall be should not be interchanged or confused with a Section 68
decided, after due notice and hearing, not later than 15 days petition. The remedies under the two sections are different
before election.” eventualities. A person who is disqualified under Section 68
is prohibited to continue as a candidate, but a person whose
WHO MAY FILE – by any person through a verified petition CoC is cancelled or denied due course under Section 78 is not
considered as a candidate at all because his status is that of a
ON WHAT GROUNDS – the candidate made material person who has not filed a CoC. Miranda v. Abaya 311 SCRA
misrepresentation in his certificate of candidacy. Section 78 617 (1999), has clarified that candidate who is disqualified
deals “exclusively” with a petition to deny due course to a under Section 68 can be validly substituted pursuant to
COC on the ground that a material representation in the Section 77 because he remains a candidate until disqualified;
contents of the certificate under Sec. 74, is false. (pertains to but a person whose CoC has been denied due course or
a candidate’s eligibility or qualification such as citizenship, cancelled under Section 78 cannot be substituted because he
residence or status as a registered voter Maruhom vs. is not considered a candidate.
Comelec 594 SCRA 108)
Munder vs. Comelec 659 SCRA 254 (2011) - “Jurisprudence
PERIOD TO FILE – Within 25 days from the last day for the has clearly established the doctrine that a petition for
filing of the certificate of candidacy. disqualification and a petition to deny due course to or to
cancel a certificate of candidacy, are two distinct remedies to
JURISDICTION – Comelec sitting in a division. prevent a candidate from entering an electoral race. Both
remedies prescribe distinct period to file the corresponding
Hayudini v. Comelec 723 SCRA 223 – The Court ruled that the petition, on which the jurisdiction of the Commission on
false representation in Section 78 must pertain to a material Elections over the case is dependent.”
fact, not to a mere innocuous mistake. A candidate who  Munder filed CoC as mayor of
falsifies a material fact cannot run; if he runs and is elected, Bubong, Lanao del Sur on 26 November
he cannot serve; in both cases. He or she can be prosecuted 2009
for violation of the election laws. These facts pertain to a  Last day for filing of CoC was on 30
candidate’s qualification for election office, such as his or her November 2009
citizenship and residence. Similarly, the candidate’s status as  Under Comelec Rec. No. 8698, a petition to
a registered voter falls under this classification as it is a legal deny due course to or to cancel a CoC must
requirement which must be reflected in the CoC. The reason be filed within 5 days from last day of the
for this is obvious: the candidate, if he or she wins, will work filing of the Coc but not later than 25 days
for and represent the local government under which he or from the filing.
she is running. Even the will of the people, as expressed  Atty. Sarip who also filed a CoC for the same
through the ballot cannot cure the vice of ineligibility, position
especially if they mistakenly believed, as in the instant case,  Atty. Sarip on 13 April 2010 filed a Petition
that the candidate was qualified. for Disqualification with Comelec on the
ground that Munder was not a RV of
Sergio G. Amora, Jr. vs. Comelec and Arnielo S. Olandria Bubong and that his CoC was not
640 SCRA 473 (2011) - To emphasize, a petition for accomplished in full.
disqualification on the one hand, can be premised on Section

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

 Sarip anchored the disqualification on the  Munder alleged that Sarip should have
Certification of the EO that there was no instead filed a petition for QW after his
Alfais T. Munder born on 07 May 1987 but proclamation.
there was another Munder Alfais Tocalo
residing in Bubon whose date of birth was ISSUES: 1) May a petition filed as a Petition for
07 May 1984 registering for the first time in Disqualification properly invoke, as a ground, that the
2003 and hence, was only 18 years old at candidate sought to be disqualified was not a RV and thus not
the time of the said filing. Hence Sarip be barred by the earlier prescriptive period applicable to
alleged that the Munder on record with Petition to Deny Due Course to or to Cancel CoC?
Comelec is not Munder who was running
for Mayor. 2) Did Comelec gravely abuse its discretion in concluding that
 Munder overwhelmingly won in the the Alfais Munder in the voter’s list is not the same as Alfais
elections with Sarip training second. The Munder the candidate?
MBC proclaimed Munder on 15 May 2010.
 Munder in his Answer denied any 3) Does Sarip have the right to be installed as Mayor for
misrepresentation, dishonesty and mockery having placed second in the electoral contest?
of justice; that these were not grounds for
disqualification of a candidate under Comelec agreed with Munder as to the nature of the petition
Comelec Resolution NO. 8696. That Sarip filed by Sarip (ground: dishonesty in declaring that Munder
availed himself of the wrong remedy as his was a RV which in fact he was not) was appropriate for a
petition should be treated as a Petition to Petition to Decny Due Course to or to Cancel CoC. The SC
Deny Due Course or to Cancel COC. That at invoked its ruling in Amora v. Comelec and Fermin v. Comelec
the time Sarip filed the petition, the said which is applicable to the case and held that the Comelec
period had already lapsed. Hence, Munder should have dismissed the petition outright since it was
praued for the dismissal of the petition. premised on a wrong ground.
 On June 29, 2010, the Comelec 2nd Division
sustained Munder and ruled that the The SC distinguishing: in Amora it held that the ground in
grounds invoked by Sarip were not proper Section 68 may be categorized into two: First, those
for a petition for disqualification under comprising “prohibited” acts of candidates; and second, the
Section 78. fact of their permanent residency in another country when
 Comelec En Banc however reversed the that fact affects the residency requirement of a candidate
ruling of the second division and according to the law.
disqualified Munder in its October 4, 2010.
Comelec ruled directly on the substantive In Fermin, it clarified the two (2) remedies availed of by a
merit of the case, and not on the propriety candidate to prevent another from running in an electoral
of the remedy taken by Sarip. race.
 Comelec ruled on the question of the
continuing possession of Munder of one of Comelec abused its discretion in concluding that Munder was
the qualifications of the Office of the Mayor not the Munder who was the mayoralty candidate.
– being a RV of the municipality where he Registration was in 2003 and present election was in
runs as a candidate. 2010…Munder already attained eligibility to run for mayor.
 Comelec disregarded the fact that Munder
had already been proclaimed but still ruled Fernando V. Gonzalez vs. Comelec, et. al. 644 SCRA 761
against him and proceeded to declare him (2011) - “In order to justify the cancellation of CoC, it is
disqualified. (RTC already has jurisdiction). essential that the false representation mentioned therein
 Munder was ordered to vacate the Office pertain to a material matter for the sanction imposed by
(which further caused confusions and Section 78 would affect the substantive rights of the
sought division among the constituents) candidate – the right to run for the elective post for which he
 In his Petition, Munder argues that Comelec filed the CoC. Material representation refers to qualifications
acted without or in excess of its jurisdiction for elective office (interpreted to refer to statements
in taking cognizance of Sarip’s petition regarding age, residence and citizenship or non-possession of
which was filed beyond the reglementary natural-born Filipino status); Aside from the requirement of
period provided by law. That Comelec materiality, the false representation must consist of a
gravely abused its discretion in effectively deliberate attempt to mislead, misinform or hide a fact which
ruling upon his right to vote, when it would otherwise render a candidate ineligible; it must be
attacked his status as a RV, in order to made with the intention to deceive the electorate as to one’s
disqualify him. qualification for public office.” (also ruled in Salcedo II v.
Comelec 312 SCRA 447 (1999))

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

suspension must be upon motion by the complainant or any

Two remedies available for questioning the qualifications of intervenor.
the candidate: Distinction between the two proceedings
under Section 78 and Section 253 under B.P. 881, thereof Second Placer Rule- It is well-settled that the ineligibility of a
(1) Before elections under Section 78 and (2) After elections candidate receiving majority votes does not entitle the
under Section 253. The only difference between the two eligible candidate receiving the next highest number of votes
proceedings is that, under Section 78, the qualifications for to be declared elected.
elective office are misrepresented in the certificate of
candidacy and the proceedings must be initiated before the Exceptions to the Second Placer Rule – The exception to the
elections, whereas a petition for QW under Section 253 may second placer rule is predicated on the concurrence of the
be brought on the basis of two grounds – (1) ineligibility or (2) following (1) the one who obtained the highest number of
disloyalty to the Republic of the Philippines, and must be votes is disqualified; and (2) the electorate is FULLY AWARE in
initiated within 10 days after proclamation of the election fact and in law of a candidate’s disqualification so as to bring
results. Under Section 253, a candidate is ineligible if he is such awareness within the realm of notoriety but would
disqualified to be elected to office, and he is disqualified if he nonetheless cast their votes in favor of the ineligible
lacks any of the qualification for election office. candidate. These facts warranting the exception to the rules
are not present in the case at bar.
Clearly, the ONLY INSTANCE where a petition questioning the
qualifications of a candidate for elective office can be filed Ashary M. Alauya (Clerk of Court, Shari’a District Court,
before election is when the petition is filed under Section 78 Marawi City vs. Judge Casan Ali L. Limbona 646 SCRA 1
of the OEC. (2011) - Partisan political activity – The filing of a certificate
of candidacy is a partisan political activity as the candidate
Period for filing a petition under Section 78 – In Loong v. thereby offers himself to the electorate for an elective post.
Comelec 216 SCRA 760 (1992), the Court categorically “No officer or employee in the civil service shall engage
declared that the period for filing a petition for cancellation directly or indirectly, in any electioneering or partisan
of candidacy based on false representation is covered by political campaign.” The act of the Judge in filing a certificate
Rule 23 and NOT Rule 25 allowing the filing of a petition at of candidacy as a party-list representative in the May 1998
any time after the last day for filing of CoC’s but not later elections without giving up his judicial post violated not only
than the date of proclamation, is merely a procedural rule the law, but also the constitutional mandate.
that cannot supersede Section 78 of the OEC.
Teodora Sobejana-Condon v. Comelec/Luis
A petition filed under Section 78 must not be interchanged or Bautista/Robelito Picar/Wilma Pagaduan 678 SCRA 267
confused with one filed under Section 68 – In Fermin v. (2012) - Remedy of a person who fails to file the petition to
Comelec 574 SCRA 782 (2008), the Court stressed that a disqualify a certain candidate within the twenty-five (25)-day
petition which is properly a “Section 78 petition” must period prescribed by Section 78 of the OEC is to file a petition
therefore be filed within the period prescribed therein, and a for QW within 10 days from proclamation of the results of the
procedural rules subsequently issue by Comelec cannot election as provided under Section 253 of the OEC.
supplant this statutory period under Section 78.
Renunciation of foreign citizenship to be valid under Section
Jurisdiction – Once a winning candidate has been proclaimed, 5(2) of RA 9225 – The language of Section 5(2) of RA 9225 is
taken his oath and assumed office as a member of the House free from any ambiguity. In Lopez v. Comelec 559 SCRA 696
of Representatives, the jurisdiction of the Comelec over (2008), the Court declared it ‘s categorical and single
election contests relating to his election, returns and meaning: a Filipino American or any dual citizen cannot run
qualifications ENDS and the HRET own jurisdiction BEGINS. for any elective public position in the Philippines unless he or
she personally swears to a renunciation of all foreign
In Perez v. Comelec 317 SCRA 641 (1999) the Court does not citizenship at the time of filing the CoC. The Court also
have jurisdiction to pass upon the eligibility of the private expounded on the form of the renunciation and held that to
respondent who was already a Member of the HR at the time be valid, the renunciation must be contained in an affidavit
of the filing of the petition for certiorari – considering that by duly executed before an officer of the law who is authorized
statutory provision (Article VI, Section 17 of the 1987 to administer an oath stating in clear and unequivocal terms
Constitution, the HRET is the sole judge of all contests that affiant is renouncing foreign citizenship.
relating to the election, returns and qualifications of the
members of the HR. Casan Macode Maquiling v. Comelec et. al. 700 SCRA 367
(2013) – the declared policy of RA 9225 is that “all Philippine
Procedure in filing Motion to Suspend Proclamation: The citizens who become citizens of another country shall be
suspension of proclamation of a winning candidate is not a deemed not to have lost their Philippine citizenship under the
matter which the Comelec Second Division can dispose of conditions of this Act”. This policy pertains to the
motu propio. Section 6 of RA No. 6646 requires that the reacquisition of Philippine citizenship. Section 5(2) requires

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

those who have re-acquired Philippine citizenship and who law stands, the petition to deny due course to or cancel a
seek elective public office, to renounce any and all foreign COC may be filed at anytime not later than 25-days from the
citizenship. This requirement of renunciation of any and all time of the filing of the COC.
foreign citizenship, when read together with Section 40(d) of
the Local Government Code which disqualifies those with In Justimbaste v. Comelec 572 SCRA 736 (2008) – Material
dual citizenship from running for any elective local position, misrepresentation as a ground to deny due course or cancel a
indicates a policy that anyone who seeks to run for public certificate of candidacy refers to the falsity of a statement
office must be solely and exclusively a Filipino citizen. To required to be entered therein as enumerated in Section 74
allow a former Filipino who reacquires Philippine citizenship of the OEC. Concurrent with materiality is a deliberate
to continue using a foreign passport – which indicates the intention to deceive the electorate as to one qualification
recognition of a foreign state of the individual as its national – making reference to Salcedo II that in order to justify the
even after the Filipino has renounced his foreign citizenship, cancellation of the COC under Section 78, it is essential that
is to allow a complete disregard of this policy. the false representation mentioned therein pertained to a
material matter for the sanction imposed by this provision
Panlaqui v. Comelec 613 SCRA 573 – Voters’ would affect the substantive rights of a candidate – the right
inclusion/exclusion proceedings essentially involve the issue to run for the elective post for which he filed the COC. There
of whether a petition shall be included in or excluded from is also no showing that there was an intent to deceive the
the list of voters based on the qualifications required by law electorate as to the identity of the private respondent, nor
and the facts presented to show possession of these that by using his Filipino name the voting public was thereby
qualifications. On the other hand, the COC deceived.
denial/cancellation proceedings involve the issue of whether
there is a false representation of a material fact. The false DISQUALIFICATION UNDER THE LOCAL GOVERNMENT CODE
representation must necessarily pertain not to a mere R.A. 7160
innocuous mistake but to a material fact or those that refer
to a candidate’s qualification for elective office. A candidate for an elective office may likewise be disqualified
on the following grounds –
NOTE: In Fermin v. Comelec G.R. No. 179695 and G.R. No.
182369, December 18, 2008, the SC clarified that Section 5  those sentenced by final judgment for an offense
(Procedure in cases of Nuisance candidates) and Section 7 involving moral turpitude or for an offense
(Petition to Deny Due Course To or Cancel a Certificate of punishable by one (1) year or more imprisonment,
Candidacy under RA 6646, did not in any way amend the within 2 years after serving sentence. (Sec. 40)
period for filing “Section 78” petitions. While Section 7 of (Qualifications of local elective candidates under the
the said law makes reference to Section 5 on the procedure LGC was asked in the 1999 Bar)
in the conduct of cases for the denial of due course to the
COC’s of nuisance candidates (then chief Justice Davide in his NOTE: The 1st ground for disqualification consists of two (2)
dissenting opinion in Aquino v. Comelec, G.R. No. 120265, parts, namely: (1) those sentenced by final judgment for an
September 18, 1995 248 SCRA 400, explains that “the offense involving moral turpitude, regardless of the period of
procedure hereinabove provided mentioned in Section 7 imprisonment; and (2) those sentenced by final judgment for
cannot be construed to refer to Section 6 which does not an offense, OTHER THAN one involving moral turpitude,
provide for a procedure but to the effects of disqualification punishable by one (1) year or more imprisonment, within 2
cases, (but) can only refer to the procedure provided in years after serving sentence.
Section 5 of the said Act on nuisance candidates, “ the same
cannot be taken to mean that the 25-day period for filing Sec. 40 of RA 7160 limits the disqualification to two (2) years
Section 78 petitions is changed to 5 days counted from the after service of sentence. This should now be read in relation
last day for the filing of COC’s. to Sec. 11 of RA 8189 which enumerates those who are
disqualified to register as a voter. The 2 year disqualification
The clear language of Section 78 cannot be amended or period under Sec. 40 is now deemed amended to last 5 years
modified b y a mere reference in a subsequent statute to the from service of sentence after which period the voter will be
use of a procedure specifically intended for another type of eligible to register as a voter and to run for an elective public
action. Cardinal is the rule in statutory construction that office.
repeals by implication are disfavored and will not be so
In Risos-Vidal vs. Comelec 747 SCRA 2010, a petition for
declared by the Court unless the intent of the legislators is
disqualification was filed against former President Joseph
manifest. Noteworthy in Loong v. Comelec 216 SCRA 760
Estrada, first when he run for President after he was
(1992), which upheld the 25-day period for filing Section 78
pardoned by then Pres. Arroyo … three petitions for his
petitions, was decided long after the enactment of RA 6646.
disqualification was filed which were effectively dismissed by
Hence, Section 23, Section 2 of the Comelec Rules of
Comelec on the uniform grounds that )1_the Constitutional
Procedure is contrary to the unequivocal mandate of the law.
proscription on reelection applies to a sitting president; and
Following the ruling in Fermin, the Court declared that “as the

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

2) the pardon granted to former President Estrada by former can no longer be removed, because his reelection operates as
President Arroyo restored the former’s right to vote and be a condition of the officer’s previous misconduct to the extent
voted for a public office. The subsequent motions for of cutting off the right to remove him for it.
reconsideration were denied by Comelec. However, after the
conduct of the May 10, 2010 synchronized elections, former Grego v. Comelec 274 SCRA 481, the Court ruled that Sec. 40
Pres. Estrada only managed to garner the second highest of RA 7160 does not have any retroactive effect. In this case
number of votes. a Deputy Sheriff was removed for serious misconduct in 1981.
He run in 1992 & 1995. His removal in 1981 cannot serve as
Again, former Pres. Estrada ventured into the political arena basis for his disqualification. Laws have prospective effect.
and filed a COC this time vying for a local elective post, as
Mayor of City of Manila. His disqualification was challenged Those with dual citizenship. The relevant cases under this
on the ground of Sec. 40(a) of RA 7160 (“those sentenced by provision are the cases of – (Superseded by RA 9225)
final judgment for an offense involving moral turpitude or for
an offense punishable by one (1) year or more of  Mercado v. Manzano & Comelec G.R.
imprisonment….further alleging that the Pardon granted to No. 135083 May 25, 1999
him was condition.  Aznar v. Comelec 185 SCRA 703
 Cirilo Valles v. Comelec & Lopez G.R.
Disqualification case was dismissed: Court said that by the #138000 August 9, 2000
statements in the Pardon, he was granted an absolute pardon
that fully restored all his civil and political rights, which In Aznar, it was ruled that the mere fact that respondent
naturally includes the right to seek public elective office. The Osmeña was holder of a certificate stating that he is an
grant was clear and free from ambiguity. The phrase in the American citizen did not mean that he is no longer a Filipino
presidential pardon at issue which declares that former & that an application for an ACR was not tantamount to
President Estrada “is hereby restored to his civil and political renunciation of his Philippine Citizenship.
rights” substantially complies with the requirement of
express restoration. Mercado v. Manzano & Comelec, it was held that the fact
that respondent Manzano was registered as an American
 Those convicted by final judgment for violating the citizen in the BID & was holding an American passport on
oath of allegiance to the Republic April 22, 1997, only a year before he filed a certificate of
candidacy for Vice-Mayor of Makati, were just assertions of
 Fugitives from justice in criminal and non-political his nationality before the termination of his American
cases. citizenship.

In Marquez, jr. vs. Comelec and Rodriguez 259 SCRA 296, it Valles v. Lopez, the Court held that the mere fact that Lopez
was held that fugitives from justice refer to a person who has was a holder of an Australian passport and had an ACR are
been convicted by final judgment. The SC ruled that when a not act constituting an effective renunciation of citizenship
person leaves the territory of a state not his own, homeward and do not militate against her claim of Filipino citizenship.
bound and subsequently learns of the charges filed against For renunciation to effectively result in the lost of citizenship,
him while he is in his own country, does not outrightly qualify the same must be express (Com. Act 63, Sec. 1). Referring to
him as a fugitive from justice if he does not subject himself to the case of Aznar, an ACR does not amount to an express
the jurisdiction of the former state. When Rodriguez left the renunciation or repudiation of one’s citizenship. Similarly,
US, there was yet no complaint filed and warrant of arrest, her holding of an Australian passport as in the Manzano case,
hence there is no basis in saying that he is running away from were likewise mere acts of assertions before she effectively
any prosecution or punishment. renounced the same. Thus, at the most, Lopez had dual
citizenship – she was an Australian and a Filipino, as well.
 Those removed from office as a result of an
administrative charge In reconciling the disqualification under Sec. 40 of RA 7160.
The Court clarified and as ruled in the Manzano case “dual
Reyes v. Comelec 254 SCRA 514 (1996) – A public officer who citizenship” as used in the LGC and reconciled with Article IV
was found guilty in an administrative case and ordered Section 5 of the 1987 Constitution on dual allegiance (Dual
removed in a decision that became final before the elections allegiance of citizens is inimical to the national interest and
is not qualified to run for re-election. shall be dealt with by law.”) In recognizing situation in which
a Filipino citizen may, without performing any act, as an
Rodolfo Aguinaldo v. Luis Santos, 212 SCRA 768 (1992) – involuntary consequence of the conflicting laws of different
However, if before the petition questioning the validity of the countries, be also a citizen of another state (jus sanguinis for
administrative decision removing a public officer could be the Philippines where the child follows the nationality or
decided, the term of office during which the alleged citizenship of the parents regardless of his/her place of birth
misconduct was committed expire, and he is reelected, he as opposed to jus soli which determines nationality or

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

citizenship on the basis of place of birth), the Court explained losing their foreign citizenship. Section 3 permits dual
that dual citizenship as a disqualification must refer to allegiance because said law allows natural-born citizens to
citizens with dual allegiance. regain their Philippine by simply taking an oath of allegiance
without forfeiting their foreign allegiance. The Constitution
The fact that Lopez had dual citizenship did not automatically however, is categorical that dual allegiance is inimical to the
disqualify her from running for public office. For candidates national interest.
with dual citizenship, it is enough that they elect Phil.
Citizenship upon the filing of their certificate of candidacy, to HELD: The intent of the legislature in drafting RA 9225 is to
terminate their status as persons with dual citizenship. The do away with the provision in CA 63, which takes away
filing of the certificate of candidacy sufficed to renounce Philippine citizenship from natural-born Filipinos who
foreign citizenship effectively removing any disqualification as become naturalized citizens of other countries. RA 9225
a dual citizen. allows dual citizenship to natural-born Filipino citizens who
have lost Philippine citizenship by reason of their
In the Certificate of Candidacy, one declare that he/she is a naturalization as citizens of a foreign country. On its face, it
Filipino citizen and that he/she will support and defend the does not recognize dual allegiance. By swearing to the
Constitution of the Philippines and will maintain true faith supreme authority of the Republic, the person implicitly
and allegiance thereto. Such declaration, which is under renounces his foreign citizenship.
oath, operates as an effective renunciation of foreign
citizenship. Plainly, Section 3, RA 9225 stayed clear out of the problem of
dual allegiance and shifted the burden of confronting the
Lopez v. Comelec 559 SCRA 696 (2008)– The ruling in Valles issue of whether or not there is dual allegiance to the
in 2000 has been superseded by the enactment of RA 9225 concerned foreign country. What happens to the other
in 2003. RA 9225 expressly provides for the condition before citizenship was not made a concern of RA 9225. (Note:
those who re-acquired Filipino citizenship may run for a Section 5, Article IV of the Constitution is a declaration of a
public office in the Philippines. Section 5 of the said law policy and it is not a self-executing provision. The
states: “Civil and Political Rights and Liabilities. – Those who legislature still has to enact the law on dual allegiance.)
retain or re-acquire Philippine Citizenship under this Act shall
enjoy full civil and political rights and be subject to all In De Guzman v. Comelec, G.R. No. 180048 June 19, 2009, it
attendant liabilities and responsibilities under existing laws of was held that “where the Oath of allegiance and certificate of
the Philippines and the following conditions xxx (2) Those candidacy did not comply with Section 5(2) of RA 9225 which
seeking elective public office in the Philippines shall meet the further requires those seeking elective public office in the
qualifications for holding such public office as required by the Philippines to make a personal and sworn renunciation of
Constitution and existing laws and, at the time of the filing of foreign citizenship as where the candidate for VM of Guimba,
the certificate of candidacy, make a personal and sworn Nueva Ecija failed to renounce his American citizenship, it
renunciation of any and all foreign citizenship before any was held that he was disqualified from running for VM in the
public officer authorized to administer an oath. May 14, 2007 elections.

AASJS Member - Hector G. Calilung vs. Secretary of Justice Teodora Sobejana-Condon v. Comelec/Luis Bautista et. al.
G.R. No. 160869, may 11, 2007, the SC took the opportunity 678 SCRA 267 (2012) - Renunciation of foreign citizenship to
to set parameters of what constitutes dual allegiance be valid under Section 5(2) of RA 9225 – The language of
considering that it only made a distinction between dual Section 5(2) of RA 9225 is free from any ambiguity. In Lopez
allegiance and dual citizenship in Mercado vs. Manzano. v. Comelec 559 SCRA 696 (2008), the Court declared it ‘s
categorical and single meaning: a Filipino American or any
FACTS: Following the implementation of RA 9225 “An Act dual citizen cannot run for any elective public position in the
Making the Citizenship of Philippine Citizens Who Acquire Philippines unless he or she personally swears to a
foreign Citizenship Permanent, amending for the purpose CA renunciation of all foreign citizenship at the time of filing the
63, as amended, petitioner filed a petition against respondent CoC.
DOJ Secretary Simeon Datumanong who was tasked to
implement laws governing citizenship. He prayed for a writ of The Court also expounded on the form of the renunciation
prohibition to stop respondent from implementing RA 9225. and held that to be valid, the renunciation must be contained
in an affidavit duly executed before an officer of the law who
He avers that RA 9225 is unconstitutional as it violates is authorized to administer an oath stating in clear and
Section 5, Article IV of the 1987 Constitution that states “ unequivocal terms that affiant is renouncing foreign
Dual allegiance of citizens is inimical to the national interest citizenship.
and shall be dealt with by law”. He contends that the Act
cheapens the Philippine citizenship since the Act allows all Maquiling vs. Comelec 700 SCRA 367 (2013) – If we allow
Filipinos, either natural-born or naturalized, who become dual citizens who wish to run for public office to renounce
foreign citizens, to retain their Philippine citizenship without their foreign citizenship and afterwards continue using their

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

foreign passports, we are creating a special privilege for these Article X, Section 8, 1987 Constitution and Section 43(b) of
dual citizens, thereby effectively junking the prohibition in RA 7160 provides “No local elective official shall serve for
Section 40(d) of the Local Government Code. It must be more than 3 consecutive terms in the same position.
stressed that what is at stake here is the principle that only Voluntary renunciation of office for any length of time shall
those who are exclusively Filipinos are qualified to run for not be considered as an interruption in the continuity of
public office. service for the full term for which the elective official
concerned was elected.
Frivaldo v. Comelec 174 SCRA 245 (1989). Frivaldo was
proclaimed governor elect of the Province of Sorsogon and In Laceda Sr., vs. Limena & Comelec 571 SCRA 603 – the
subsequently assumed office. A disqualification was filed Court held that the rationale behind Section 2 of RA 9164, like
against him by the League of Municipalities, Sorsogon Section 43 of RA 7190 (Local Government Code) from which
Chapter on the ground that he was not a Filipino citizen, the 3-term rule was taken, is primarily intended to broaden
having been naturalized in the US in 1983, which he admitted the choices of the electorate of the candidates who will run
but which he undertook only to protect himself against then for office, and to infuse new blood in the political arena by
President Marcos. The SC found Frivaldo disqualified for not disqualifying officials from running for the same office after a
having possessed the requirement of citizenship which term of 9 years.
cannot be cured by the electorate, especially if they
mistakenly believed, as in this case, that the candidate was The case of Laceda Sr. involved a similar question in Latasa
qualified. vs. Comelec 417 SCRA 601 where the Court held that where a
person has been elected for 3 consecutive terms as municipal
Republic v. dela Rosa 232 SCRA 785. The disqualification of mayor and prior to the end or termination of such 3-year
Frivaldo was again at issue. Frivaldo opted to reacquire his term the municipality has been converted by law into a city,
Philippine citizenship thru naturalization but however failed without the city charter interrupting his term until the end of
to comply with the jurisdictional requirement of publication, the 3-year term, the prohibition applied to prevent him from
thus, the Court never acquired jurisdiction to hear the running for the 4th time as city mayor thereof, there being no
naturalization of Frivaldo. He was again disqualified. break in the continuity of the terms. Comelec did not err nor
commit any abuse of discretion when it declared Laceda
In Frivaldo v. Comelec 257 SCRA 72 (1996), Frivaldo later disqualified and cancelled his COC.
reacquired Philippines citizenship and obtained the highest
number of votes in 3 consecutive elections but was twice Adormeo v. Comelec & Talaga, Jr. G.R. No. 147927 04
declared by the SC to be unqualified to hold office due to his February 2002 and citing Borja v. Comelec 295 SCRA 157 and
lack of citizenship requirement. He claimed to have re- Lonzanida v. Comelec 311 SCRA 602, it was ruled that the
acquired his Filipino citizenship thru repatriation. It was term limit for elective local officals must be taken to refer to
established that he took his oath of allegiance under the the “right to be elected” as well as the “right to serve in the
provision of PD 725 at 2pm on 30 June 1995, much later than same elective position.” Thus, two (2) conditions for the
the time he filed his certificate of candidacy. application of the disqualification must concur:
 that the official concerned has been elected for
The Court held that the “the law does not specify any three (3) consecutive terms in the same local
particular date or time when the candidate must possess government post; and
citizenship unlike that of residence and age, as Sec. 39 of RA  that the has fully served the three (3) consecutive
7160 specifically speaks of “qualification of elective officials, terms.
not candidates” thus, the citizenship requirement in the local
government code to be possessed by an elective official at In this case, respondent Talaga, Jr., was elected mayor of
the latest as of the time he is proclaimed and at the start of Lucena City in May 1992. He served the full term, was re-
the term of office to which he has been elected. elected in 1995-98 but lost in the 1998 election to Tagarao.
In the recall elections of May 2000, Talaga, Jr. won and served
But to remove all doubts on this important issue, the Court the unexpired term of Tagarao until 30 June 2001. Talaga Jr.
held that the repatriation of Frivaldo retroacted to the date filed his certificate of candidacy for the same position in the
of the filing of his application on 17 August 1994 and being a 2001 elections which candidacy was challenged by petition
former Filipino who has served the people repeatedly and at Adormeo on the ground that Talaga, Jr. is already barred by
the age of 81, Frivaldo deserves liberal interpretation of the the 3-term limit rule.
Philippine laws and whatever defects there were in his
nationality should now be deemed mooted by his Adormeo contends that Talaga’s candidacy violated Section 8,
repatriation. Article X of the Constitution which states that the term of
office of local elective officials shall be three (3) years and no
 3 term limit or having served 3 consecutive terms. such official shall serve for more than three (3) consecutive
terms citing the case of Lonzanida v. Comelec To further
support his case, he adverts to the comment of Fr. Joaquin

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

Bernas who stated that in interpreting said provision that “if

one is elected representative to serve the unexpired term of It was held that Lonzanida is still qualified to run for mayor
another, that unexpired term, no matter how short, will be and held that the 2-rquisites for the application of the 3-term
considered one term for the purpose of computing the limit is wanting. First, petitioner cannot be considered as
number of successive terms allowed.” having been elected to the post in the May 1995 elections,
and second, the petitioner did not fully serve the 1995-1998
The Comelec en banc ruled in favor of Talaga which reversed mayoralty term by reason of involuntary relinquishment of
the ruling of the 1st division and held that – 1) Talaga was not office.
elected for 3 consecutive terms because he did not win the
11 May 1998 elections; 2) that he was installed only as As repeatedly ruled by the SC, a “proclamation subsequently
mayor by reason of his victory in the recall elections; 3) that declared void is no proclamation at all and while a
his victory in the recall elections was not considered a term of proclaimed candidate may assume office on the strength of
office and is not included in the 3-term disqualification rule the proclamation of the BOC, he is only a presumptive
and finally 4) that he did not fully serve the 3 consecutive winner who assumes the office subject of the final outcome
term. His loss in the 11 May 1998 elections is considered an of the election protest.”
interruption in the continuity of his service as Mayor of
Lucena City. Another issue raised in Lonzanida is that the Comelec
already lost jurisdiction over the disqualification case when
ISSUE: Was Talaga disqualified to run for Mayor of Lucena he was proclaimed as winner and that jurisdiction is already
City in the 14 May 2001 elections? with the RTC for QW. The SC reiterated its ruling in Trinidad
v. Comelec 288 SCRA 76 (1998) that pursuant to Sec. 6 of RA
In holding the qualifications of Talaga, the Court reiterated its 6646, the proclamation nor assumption of office of a
ruling in Borja that the term limit for elective local officials candidate against whom a petition for disqualification is
must be taken to refer to the right to be elected as well as the pending before the Comelec does not divest the Comelec of
right to serve in the same elective position considering that jurisdiction to continue hearing the case and resolve it on the
the continuity of his mayorship was disrupted by the defeat merits. (Also ruling in Dizon v. Comelec 577 SCRA 589).
in the 1998 elections which is considered as an interruption in
the continuity of service. The Court further held that the Borja v. Comelec 295 SCRA 157 (1998), the SC ruled on the
comment of Fr. Bernas is pertinent only to member of the issue on whether a VM who succeeds to the office of mayor
HR there being no recall elections provided for members of by operation of law and serves the remainder of the term is
Congress. considered to have served a term in that office for the
purpose of the 3-term limit. The SC upheld the decision of
In Lonzanida v. Comelec and Lu 28 311 SCRA 602 (July 1998), the Comelec that succession for the expired term is not the
Lonzanida was elected and served 2 consecutive terms as service contemplated as would disqualify the elective official
municipal mayor of San Antonio, Zambales, prior to the 08 from running for the same elective post. The purpose of this
May 1995 elections. In the May 1995 elections, Lonzanida provision is to prevent a circumvention of the limitation on
ran for the same elective post and was again proclaimed the number of terms an elective local official may serve.
winner. He assumed office and discharged the duties Conversely, if he is not serving a term for which he was
thereof. His proclamation in 1995 was contested by his then elected as he was simply continuing the service of the official
opponent Juan Alvez who filed an election protest before the he succeeds, such official cannot be considered to have fully
RTC of Zambales which rendered a decision declaring a failure served the term notwithstanding his voluntary renunciation
of elections rendering the result for the office as null and of office prior to his expiration. (Asked in the 2001 BAR)
void. The office of the mayor was then declared vacant. Both
parties appealed to the Comelec and on 13 Nov. 1997, it Angel Naval v. Comelec and Nelson B. Julia 729 SCRA 299
resolved the election protest filed by Alvez in his favor after (2014) – Naval had been elected and had served as a member
determining that Alvez garnered the plurality of votes. The of the Saggunian 2nd District, Province of Camarines Sur from
Comelec issued a writ of execution ordering Lonzanida to 2004-2007, 2007-2010, 2010-2013. Pursuant to RA 9716, the
vacate the post to which he obeyed and Alvez assumed for legislative districts in Camarines Sur was reapportioned
the remainder of the term. wherein 8 out of 10 towns were taken from the old 2nd
district to form the present 3rd district. The present 2nd district
Lonzanida again filed his certificate of candidacy for Mayor in is composed of 2 remaining towns which was merged with 4
the 11 May 1998 and his opponent timely filed a petition to towns from the old 1st district.
disqualify him for the same post.
In 2013, Naval ran and was re-elected. A petition to deny due
ISSUE: Whether Lonzanida’s assumption of office from May course or to cancel the CoC of Naval was filed in 2012 by Julia
1995 to March 1998 may be considered as service of one full invoking Section 78 for having served 3 consecutive terms.
term for the purpose of applying the 3-term limit for elective Naval alleges that the 1st, 2nd, and 3rd districts of Camarines
local government officials. Sur are not merely renamed but are composed of new sets

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

of municipalities. With separation of the 2 towns from the  officer serving unexpired term after winning in the
other 8 towns which used to comprise the 2nd district, the recall elections;
voters from the 3rd legislative districts are no longer the  officer elected to a newly created legislative district
same one as those who had elected him to office in 2004 (Bandillo case)
and 2007.
In Ong vs. Alegre 479 SCRA 473 – A petition for
The cases of Latasa, Lonzanida, Borja, Aldovino and Bandillo, disqualification was filed against Francis Ong for having
were cited which all involve the application of the 3-term violated the 3-term limit rule for having served as mayor of
limit rule. The Court however, considered the case as one of San Vicente Camarines Norte in the May 1995, 1998 & 2001
first impression and held that while the said cases involve the elections. The controversy revolves around the 1998-2001
application of the 3-term limit rule, the factual and legal mayoral term wherein the election protest filed by Alegre
circumstances in those cases are different and the doctrinal was promulgated after the term of the contested office has
values there do not directly address the issued of said case. expired.

In Latasa, the issue arose as a result of the conversion of a The question for consideration is whether or not the
municipality into a city wherein it was declared that there assumption of Francis Ong as Mayor from July 1, 1998 to June
was no interruption of the incumbent’s mayor continuity of 30, 2001, may be considered as one full term service in the
service (municipal mayor to city mayor). context of the consecutive term limit rule. The Court
declared that such assumption of office constitutes, for
In Lonzanida, a candidate ran for mayoralty post and won for Francis, “service for the full term” and should be counted as a
3 consecutive terms but was ousted from office as a result of full term served in contemplation of the 3-term limit
an election protest case. Lonzanida did not serve the full prescribed by the constitutional and statutory provisions,
term. barring elective officials from being elected and serving for
more than 3-consecutive terms.
In Borja, the mayor of Pateros died and was succeeded in
office by the VM. Was not voted for the same office. The Court debunked the claim of Francis Ong that he was
only a presumptive winner in view of the ruling of the RTC
In Aldovino, the public office was preventively suspended that Alegre was the real winning candidate in the light of his
which however did not interrupt the elective official’s term. being proclaimed by the MBOC coupled by his assumption of
Although he was barred from exercising the functions of the office and his continuous exercise of the functions thereof
position during the period of suspension, his continued stay from start to finish of the term, should legally be taken as
and entitlement to the office remain the same. service for a full term in contemplation of the 3-term rule.
Lonzanida from which Ong sought refuge is not applicable in
In Bandillo, a case decided by the Comelec, two towns were view of the involuntary relinquishment of office before the
added to five of the 10 towns, which used to comprise expiration of his term. (Same ruling in Rivera III vs. Comelec
Camarines Sur’s and 1st District, to form the new 2nd District. 523 SCRA )
The Comelec declined to apply the 3-term limit rule against
the elected Provincial Board member on the ground that the Aldovino Jr., vs. Comelec 609 SCRA 234 (2009) – Effect of a
addition of the 2 towns distinctively created a new district, preventive suspension. Article X, Section 8 – both by
with an altered territory and constituency. structure and substance – fixes an elective official’s term of
office and limits his stay in office to 3 consecutive terms as an
The Naval case pertained to the application of the 3-term inflexible rule that is stressed, no less, by citing voluntary
limit rule upon local elective official whose district was renunciation as an example of a circumvention. The
RENAMED and/or REAPPORTIONED. The Court noted that provision should be read in the context of interruption of
pursuant to said RA 9716, the district which elected him for term, NOT in the context of interrupting the full continuity of
the 3rd and 4th time is the same one which brought him to the exercise of the power of the elective position.
office in 2004 and 2007.
The “voluntary renunciation” it speaks of refers only to the
In applying said policy, the following situations (tenures in elective official’s involuntary relinquishment of office and loss
office) are NOT considered service of term for purpose of of title to this office. It does not speak of the temporary
applying the 3-term limit – “cessation of the exercise of power or authority” that may
occur for various reasons, with preventive suspension being
 officer fills up a higher office by only one of them.
succession/operation of law
 officer is suspended from office (failed to serve full Quoting Latasa – the law contemplates a rest period during
term/involuntary) which the local elective official steps down from office and
 officer unseated, ordered to vacate by reason of an ceases to exercise power or authority over the inhabitants
election protest case

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

of the territorial jurisdiction of a particular government Free of charge – if broadcast is given free of charge the radio
unit.” and television station, it shall be identified by the words
“airtime for this broadcast was provided free of charge by”
followed by the true and correct name and address of the
DISQUALIFICATION CASES (EFFECTS) broadcast entity. Provided that said print, broadcast donated
shall not be published or printed without the written
Sec. 72 of the OEC and Section 6 of 6646 states: “any acceptance of the candidate or political party which
candidate who been declared by final judgment to be acceptance shall be attached to the advertising contract and
disqualified shall not be voted for, and the votes cast for him submitted to the Comelec.
shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be Guidelines whether by purchase or donation – Print
disqualified and is voted for and received the winning number advertisements shall not exceed ¼ page in broadsheet and ½
of votes in such election, the Comelec shall continue with the page in tabloids 3 x a week per newspaper, magazine or other
trial and hearing of the action, inquiry or protest and, upon publications during the campaign period. (Section 6, RA
motion of the complainant or any intervenor, may during the 9006).
pendency thereof order the suspension of the proclamation
of such candidate whenever the evidence of guilt is strong.” Television/Radio Advertisements – national candidates or
registered political party shall be entitled to not more than
120 minutes of TV advertisement and 180 minutes of radio.
CAMPAIGN AND ELECTION PROPAGANDA Local candidates not more than 60 minutes of TV
advertisement and 90 minutes of radio.
Election period is 120 days - 90 days before the date of the
election and 30 days thereafter. Campaign period for Pres., Comelec Time and space – print space, Comelec shall pay just
VP and Senators starts 90 days before the date of the compensation (PPI ruling) in at least 3 newspapers of general
election, 45 days for members of the HR and local candidate circulation which Comelec shall allocate free of charge to the
and 15 days for barangay official, which excludes the day national candidates. Broadcast network (radio and TV) free
before and the day of the elections. of charge to Comelec. (Section 8, RA 9006)

Prohibited Activities – Section 80 BP881 – Election campaign Limitations In Broadcasting of Election Accounts – Comelec
or partisan political activity outside campaign period. It shall shall ensure that radio and television or cable television
be unlawful for any person whether or not a voter or broadcasting entities shall not allow the scheduling of any
candidate, or for any party or association of persons, to program or permit any sponsor to manifestly favor or oppose
engage in an election campaign or partisan political activity any candidate or political party or unduly or repeatedly
except during the campaign period: Provided, That political referring to or including said candidate and/or political party
parties may hold political convention or meetings to in such program respecting, however, in all instances the
nominate their official candidates within 30 days before the right of said broadcast entities to air accounts of significant
commencement of the campaign period and 45 days for news or news worthy events and views on matter of public
President and Vice-President. interest.

RA 9006 (Fair Election Law), Section 3. Election propaganda Restrictions on Media Practitioners – any mass media
whether on television, cable television, radio, newspapers or columnist, commentator, reporter or non-air correspondent
any other medium is hereby allowed for all registered or personality who is a candidate for any elective office or is a
political parties, national, regional, sectoral parties or campaign volunteer for or employed or retained in any
organizations participating under the party-list elections and capacity by any candidate or political party shall be deemed
for all bona fide candidates seeking national and local resigned, if so required by their employer, or shall take a
positions subject to the limitation on authorized expenses of leave of absence from his/her work as such during the
candidates and political parties, observance of truth in campaign period. Any media practitioner who is an official of
advertising and to the supervision and regulation by the a political party or member of the campaign staff of a
Comelec. candidate or political party shall not use his/her time or space
to favor any candidate or political party
Requirements for Published or Printed Broadcast Election
Propaganda. RA 9006 now allows paid political No movie, cinematography or documentary portraying the
advertisements for print and broadcast media provided the life or biography of a candidate shall be publicly exhibited in a
said advertisement shall bear and be identified by reasonably theater, television stations or any public forum during the
legible or audible words “ Political advertisement paid for” campaign period or those portrayed by an actor or media
followed by the true and correct name and address of the personality who is himself a candidate.
candidate or party for whose benefit the election
propaganda was printed or aired.

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

RA 9006, Section 5 Election surveys – refers to the diffusing wealth and political power for the common good.
measurements of opinions and perceptions of the voters as Further, the constitutional desire to “guarantee equal access
regards a candidate’s popularity, qualifications, platforms or to opportunities for public service is the same intent that
matter of public discussion in relation the election, including animates the Constitution’s investiture in Comelec of the
voters’ preference or candidates or publicly discussed issues power to “supervise or regulate the enjoyment or utilization
during the campaign period. The person or entity who of all franchises or permits for the operation of
publishes a survey is required to include the following transportation and other public utilities, media of
information: communication or information, all grants, special privileges,
or concessions granted by the Government or any
 Name of the person, candidate, party or subdivision.
organization who commissioned or paid the survey;
 Name and address of the person or polling firm from The inclusion of Election Surveys in RA 9006 in the list of
who conducted the survey items regulated is a recognition that ES are not a mere
 Period during which the survey was conducted, descriptive aggregation of data. Publishing surveys are a
methodology used, including the number or means to shape the preference of voters, inform the strategy
individual respondents and the areas from which of campaign machineries, and ultimately, affect the outcome
they were selected and the specific questions asked of elections. Election surveys have a similar nature as
 Margin of error of the survey. election propaganda. They are expensive, normally paid for
by those interested in the outcome of the elections, and have
The survey together with the raw data gathered to support tremendous consequences on election results.
the conclusions shall be available for inspection, copying and
verification by the Comelec, or by the registered political Effects (although conflicting) of survey on voters behavior
party or any Comelec accredited citizen arm. have been postulated:
Posting of Campaign Materials – political parties and party-
list groups may be authorized by the Comelec common 1) BANDWAGON effect where the “electors rally to support
poster areas for their candidates in not more than 10 public the candidate leading in the polls. This assumes that
places such as plazas, markets, barangay centers and the like, knowledge of a popular tide will likely change voting
wherein, candidates can post, display or exhibit election intentions in favor of the frontrunner, that many electors feel
propaganda. The size of the poster areas shall not exceed 12 more comfortable supporting a popular choice or that people
x 16 feet or it equivalent. With respect to independent accept the perceived collective wisdom of other as being
candidates, may likewise avail of this but the difference is enough reason for supporting a candidate.
merely on the size which shall not exceed 4 x 6 feet or its
equivalent. (Section 9, RA 9006) 2) UNDERDOG effect where electors rally to support the
candidate trailing in the polls. This shift can be motivated by
RA 9189, Section 15 – Regulation of Campaign Abroad – The sympathy for the perceived underdog.
use of campaign materials, as well as the limits on campaign
spending shall be governed by the laws and regulations 3) MOTIVATING effect where individuals who had not
applicable to the Philippines. intended to vote are persuaded to do so.

Social Weather Station, Inc. and Pulse Asia, Inc. petitioners 4) DEMOTIVATING effect where voters abstain from voting
vs. Comelec 755 SCRA 124 - Comelec in its Resolution No. out of certainty that their candidate or party will win.
9674 direct SWS and Pulse Asia as well as other survey firms
of similar circumstance, to submit to Comelec the names of 5) another behavior known as STRATEGIC voting, where
all commissioners and payors of all surveys published from voting is influenced by the chances of winning. And
Feb. 12, 2013 to April 23, 2013, including those of their
“subscribers. UNA wrote SWS to be furnished with the 6) FREE-WILL effect where voters cast their ballots to prove
identity of persons who paid for the pre-election survey… the polls wrong. Voters act in accordance with what is
SWS replied but did not disclose the names. Hence, UNA perceived to be an existing or emerging state of affairs with
wrote Comelec to direct SWS of furnish him with the names respect to how candidates are faring.
pursuant to its Comelec Resolution 9674.
I-United Transport Koalisyon (1-UTAK), vs. Comelec 755
Rationale behind the power of Comelec under RA 9006 – SCRA 441 – Section 9 of RA 9006 (Fair Elections Act) was
implements the constitutional desire to “guarantee equal passed which reads: (Read above)… On January 15, 2013, the
access to opportunity for public service…”The Fair Elections Comelec promulgated for the rules implementing RA 9006 in
Act represents the legislature’s compliance with the connection with the May 13, 2013 national and local
requirement of Article X111, Section 1..the mandate for elections and subsequent elections. Section 7 thereof, which
Congress to give highest priority to the enactment of enumerates the prohibited forms of election propaganda
measures that reduce political inequalities by equitably provides – “To post, display or exhibit any election campaign

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

or propaganda material outside of authorized common RULING: The Comelec’s constitutionally delegated powers of
poster areas, in public places or in private properties without supervision and regulation do not extend to the ownership
the consent of the owner thereof. per se of PUVs and transport terminals, but only to the
franchise or permit to operate the same. There is a marked
(g) Public place referred to in the previous section (f) include difference between the franchise or permit to operate
any of the following: 5. Public utility vehicles such as buses, transportation for the use of the public and the ownership
jeepneys, trains, taxi cabs, ferries, pedicabs and tricycles, per se of the vehicles used for public transport.
whether motorized or not; and 6. Within the premises of
public transport terminals, such as buss terminals, airports, Captive-audience doctrine states that when a listener cannot,
seaports, docks, piers, train stations and the like. ….Any as a practical matter, escape from intrusive speech, the
violation shall cause the revocation of the public utility speech can be restricted. The doctrine recognizes that a
franchise and will make the owner and/or jeepney operator listener has a right not to be exposed to an unwanted
of the transportation service liable for an election offense. message in circumstances in which the communication
cannot be avoided. The prohibition under the assailed
In a letter, petitioner 1-Utak through its president sought provision of the Comelec Resolution is not justified under the
clarification from Comelec as regards the application of captive audience doctrine…the commuters are not forced or
Section 7 (g) items 5 and 6, of Comelec Resolution No. 9615 compelled to read the election campaign materials posted on
in connection with privately-owned public utility vehicles the PUVs and transport terminals. Nor are they incapable of
(PUV’s) and transport terminals. Petitioner requested declining to receive the message contained in the posted
Comelec to reconsider the implementation of the assailed election campaign materials since they may simply avert their
provisions and allow private owners of PUV’s and transport eyes if they find the same unbearably intrusive.
terminals to post election campaign materials on their
vehicles and transport terminals. BP881, Section 95 – Prohibited Contributions. No
contribution for purposes of partisan political activity shall be
Comelec denied asserting that privately-owned PUVs and made directly or indirectly by any of the following:
transport terminals are public places that are subject to its (a) Public or private financial institutions: Provided,
regulation pursuant to the powers vested in it. Comelec however, That nothing herein shall prevent the
points out that PUV’s and private transport terminals hold a making of any loan to a candidate or political
captive audience – “the commuters, who have no choice but party by any such public or private financial
be subject to the blare of political propaganda. institutions legally in the business of lending
money, and that the loan is made in
ISSUE (1): Whether the Resolution 9615 violates the right to accordance with laws and regulations and in
free speech of the owners of PUVs and transport terminals. the ordinary course of the business;
(b) Natural and juridical persons operating a public
RULING (1): Violative. It is basic that if a law or an utility or in possession of or exploiting any
administrative rule violates any norm of the Constitution, that natural resources of the nation;
issuance is null and void and has no effect. (c) Natural and juridical persons who hold contract
or sub-contract to supply the government or
ISSUE (2): Whether the Resolution is void as a restraint to any of its divisions, subdivisions or
free speech and expression for failure to satisfy the O’Brien instrumentalities, with goods or services or to
Test. perform construction or other works;
(d) Natural and juridical persons who have been
RULING (2): Resolution constitute as prior restraint and granted franchises, incentives, exemptions,
unduly infring on the fundamental right of the people to allocations or similar privileges or concessions
freedom of speech. Comelec’s supervisory power does not by the government or any of its divisions,
extend to the very freedom of an individual to express his subdivisions or instrumentalities, including
preference of candidates in an election by placing election government-owned or controlled corporations.
campaign stickers on his vehicle (Adiong). (e) Natural and juridical persons who, within the
one year prior to the date of the election, have
ISSUE (3) Whether the Constitutional objective to give an been granted loans or other accommodations
equal opportunity to inform the electorate is not impaired by in excess of 100K by the government or any of
posting political advertisements on PUVs and transport its divisions, subdivisions or instrumentalities
terminals and including government owned or controlled
corporations.
ISSUE (4) Whether ownership of facilities is different and (f) Educational institutions which have received
independent from the franchise or operation of the public grants of public funds to no less than 100K;
utility, the former being beyond the power of regulation by
the Comelec.

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

(g) Officials or employees in the Civil Service, or

members of the Armed Forces of the The term “election surveys” is defined in par. 5.1 of the law as
Philippines; follows ”Election surveys refer to the measurement of
(h) Foreigners and foreign corporations. opinions and perception of the voters as regards a
candidate’s popularity, qualification, platforms or a matter of
It shall be unlawful for any person to solicit or receive any public discussion in relation to the election, including voters’
contribution from any of the persons or entities enumerated preference for candidates or publicly discussed issues during
herein. the campaign period”.

ABS-CBN 323 SCRA 811, the SC defined exit polls as a specie Petitioner SWS states that it wishes to conduct an election
of electoral survey conducted by qualified individuals or survey throughout the period of the elections both at the
groups of individuals for the purpose of determining the national and local levels and release to the media the results
probable result of an election by confidentially asking of such survey as well as publish them directly. Kamahalan
randomly selected voters whom they have voted for, also states that it intends to publish election survey results up
immediately after they have officially cast their ballots. to the last day of the elections on May 14, 2001. HELD: Par.
5.4 constitutes an unconstitutional abridgement of freedom
An absolute prohibition is unreasonably restrictive because it of speech, expression and the press. It is invalid because it
effectively prevents the use of exit poll data not only for imposes a prior restraint on the freedom of expression and it
election days of the elections, but also for long term research. is a direct and total suppression of a category of expression
The concern of Comelec of a non-communicative effect of the even though such suppression is only for a limited period, and
exit polls which is disorder and confusion in the voting the governmental interest sought to be promoted can be
centers does not justify a total ban of the exist polls. Comelec achieved by means other than the suppression of freedom of
should instead set safeguards in place for those who intends expression.
to conduct exit polls.

Section 5.5 of RA 9006 (Fair Elections Law) provides for the PREMATURE CAMPAIGNING
requirements for the taking of an exit polls:
 pollsters shall not conduct their survey within 50 In Francisco Chavez v. Comelec et. al. G.R. No. 162777 31
meters from the polling place whether said survey is August 2004, Chavez brought before the SC a Petition for
taken in a home, dwelling place and other places; Prohibition with prayer for the issuance of a writ of
 pollsters shall wear distinctive clothing; preliminary injunction as taxpayer and citizen asking the
 pollsters shall inform the voters that they may refuse Court to enjoin the Comelec from enforcing Section 21 of its
to answer; and Resolution No. 6520 dated 06 January 2004. (Sec. 32
 the result of the exit polls may be announced after provides: All propaganda materials such as posters,
the closing of the polls on election day, and must streamers, stickers or paintings on walls and other materials
clearly identify the total number of respondents, and showing the picture or name of a person and all
the places where they were taken.. Said advertisements on print, in radio or on television showing the
announcement shall state that the same is unofficial image or mentioning the name of a person, who subsequent
and does not represent a trend. to the placement or display thereof becomes a candidate for
public office shall be immediately removed by said candidate
SOCIAL WEATHER STATION vs. COMELEC 357 SCRA 496 – and radio station, print media or television station within 3
This case involved the issue on election surveys. SWS is a days after the effectivity of these implementing rules;
private non-stock, non-profit social research institution otherwise, he and the said radio station, print media or
conducting surveys in various fields, including economics, television station shall be presumed to have conducted
politics, demography and social development, and thereafter, premature campaigning in violation of Sec. 80 of the OEC)
processing, analyzing and publicly reporting the results
thereof. On the other hand, Kamahalan Publishing Chavez on various dates entered in formal agreement with
Corporation publishes the Manila Standard, a newspaper of certain establishment to endorse their products and pursuant
general circulation, which features newsworthy items of thereto, 3 bill boards were set up on some strategic areas in
information including election surveys. Metro Manila. Subsequently on 30 December 2003, Chavez
filed his certificate of candidacy for the position of Senator.
Petitioners brought this action for prohibition to enjoin the On 06 January 2004, Comelec issued Resolution No. 6520
Comelec from enforcing par. 5.4 of RA 9006 which provides, which contained Section 32. Comelec directed Chavez to
“Surveys affecting national candidates shall not be published comply with the said provision and replied how he may have
fifteen (15) days before an election and surveys affecting violated the assailed provision. Another letter was sent
local candidates shall not be published seven (7) days before seeking exemption from the application of Section 32,
an election”. considering that the billboard adverted to are mere product

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

endorsements and cannot be construed as paraphernalia for

premature campaigning under the rules. Section 32 neither violated the non-impairment clause as this
must yield to the loftier purposes targeted by the
Comelec replied by informing him to remove or cover the Government. Equal opportunity to proffer oneself for public
said billboards pending the resolution of the Comelec on his office, without regard to the level of financial resources one
request for exemption. Aggrieved, Chavez sent to the SC via may have at his disposal, is a vital interest to the public.
a petition for prohibition seeking the said provision as
unconstitutional based on the following grounds – The SC has stressed that contracts affecting public interest
 It was a gross violation of the non-impairment contain an implied reservation of the police power as a
clause postulate of the existing legal order. This power can be
 An invalid exercise of police power activated at anytime to change the provisions of the contract,
 In the nature of an ex post facto law or even abrogate it entirely, for the promotion or protection
 Contrary to the Fair Elections Act of the genera; welfare. Such an act will not militate against
 Invalid due to overbreadth the impairment clause which is subject to and limited by the
paramount police power.
As to the 1st issue – is Section 32 of Comelec Resolution No.
6520 an invalid exercise of police power? Petitioner argues: On the issue that Sec. 32 of the Comelec Resolution is in the
the billboards (even if it bears his name) do not at all nature of an ex post facto law. Not ex post facto – the offense
announce his candidacy for any public office nor solicit for as expressly prescribed in Section 32, is the non-removal of
such candidacy from the electorate; they are mere product the described propaganda materials three (3) days after the
endorsements and not election propaganda. Prohibition is effectivity of the said Resolution. If the candidate for public
not within the scope of power of the Comelec. office fails to remove such propaganda materials after the
given period, he shall be liable under Section 80 of the OEC
RULING – police power is an inherent attribute of for premature campaigning. Nowhere is it indicated in the
sovereignty, is the power to prescribe regulations to promote said provision that it shall operate retroactively.
the health, morale, peace, education, good order or safety of
the general welfare of the people. The primary objective of On the issue that the provision was a violation of the Fair
the provision is to prohibit premature campaigning and to Elections Act as billboards are already permitted as lawful
level the playing field for candidates of public office, to election propaganda. It was ruled that the provision does not
equalize the situation between popular or rich candidates, prohibit billboards as lawful election propaganda. It only
on one hand and lesser-known or poorer candidates, on the regulates their use to prevent premature campaigning and to
other, by preventing the former from enjoying undue equalize, as much as practicable, the situation of all
advantage in exposure and publicity on account of their candidates by preventing popular and rich candidates from
resources and popularity. This is a valid reason for the gaining undue advantage in exposure and publicity on
exercise of police power as held in the Philippines Press account of their resources and popularity. Comelec was only
Institute v. Comelec case. doing its duty under the law (Sec. 3 and 13 of the Fair
Elections Act on lawful propaganda)
It is true that when petitioner entered into the contract or
agreements to endorse certain products, he acted as a Section 80 of the OEC provides “it shall be unlawful for any
private individual and had all the right to lend his name and person, whether or not a voter or candidate or for any
image to these products. However, when he filed his COC for party, or association of persons, to engage in an election
senator, the billboards featuring his name and image campaign or partisan political activity, except during the
assumed partisan political character because the same campaign period.”
directly promoted his candidacy. If subject billboards were to
be allowed, candidates for public office whose name and In Lanot v. Comelec, 507 SCRA 114 (2006), the Supreme
image are used to advertise commercial products would have Court explained premature campaigning as follows:
more opportunity to make themselves known to the
electorate, to the disadvantage of other candidates who do “Thus, the essential elements for violation of Section 80 of
not have the same chance of lending their faces and names to the OEC are: (1) the person engages in an election campaign
endorse popular commercial products as image models. or partisan political activity; (2) the act is designed to
promote the election or defeat of a particular candidate or
Similarly, an individual intending to run for public office candidates; (3) the act is done outside the campaign
within the next few months, could pay private corporations period.”
to use him as their image model with the intention of
familiarizing the public with his name and image even before The second element requires the existence of a “candidate”.
the start of the campaign period. This, without doubt, would Under Section 79(a), a candidate is one who “has filed a
be a circumvention of the rule against premature certificate of candidacy” to an elective public office. Unless
campaigning. one has filed his CoC, he is not a “candidate.” The third

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

element requires the campaign period has not started when under Section 80 of the OEC. Such acts are within the realm
the election campaign or partisan political activity is of a citizen’s protected freedom of expression. Acts
committed. committed by Penera within the campaign period are not
covered by Section 80 as Section 80 punishes only acts
Assuming that all candidates to a public office file their CoC outside the campaign period.”
on the last day, which under Section 75 of the OEC is the day
before the start of the campaign period, then no one can be Penera v. Comelec 599 SCRA 609. The issue on premature
prosecuted for violation of Section 80 for acts done prior to campaigning was raised. Facts show that Penera and Andanar
such last day. Before such last day, there is no “particular were mayoralty candidates in Sta. Monica in the last May 14,
candidate or candidates” to campaign for or against. On the 2007 elections. Andanar filed before the Office of the
day immediately after the last day of filing, the campaign Regional Election Director, Caraga Region, Region XIII, a
period starts and Section 80 ceases to apply since Section 80 petition for disqualification against Penera for unlawfully
covers only acts done “outside” the campaign period. engaging in election campaigning and partisan political
activity prior to the commencement of the campaign period.
In this case, there is no dispute that Eusebio’s acts of election
campaigning or partisan political activities were committed The Petition alleged that on 29 March 2007, a day before the
outside the campaign period. The only question is whether start of the authorized campaign period on 30 March 2007,
Eusebio, who filed his CoC on 29 December 2003, was a Penera and her partymates went around the different
“candidate” when he committed those acts before the start barangays in Sta. Monica, announcing their candidacies and
of the campaign period on 24 March 2004. requesting the people to vote for them on the day of the
elections. Penera alleged that the charge was not true
Section 11 of RA 8436, moved the deadline for the filing of although having admitted that a motorcade did take place
CoC to 120 days before election day. Thus, the original which was simply in accordance with the usual practice in
deadline was moved from 23 March 2004 to 2 January 2004 nearby cities and provinces, where the filing of COC was
or 81 days earlier. The crucial question is: Did this change in preceded by a motorcade, which dispersed soon after the
the deadline for the filing the CoC make one who filed his completion of such filing. Penera in her defense cited Barroso
certificate of candidacy before 2 January 2004 immediately v. Ampig (385 Phil 2237; 328 SCRA 530) wherein the Court
liable for violation of Section 80 if he engaged in election ruled that a motorcade held by candidates during the filing of
campaign or partisan political activities prior to the start of their COC’s was not a form of political campaigning. Pending
the campaign period on 24 March 2004? the disqualification case, Penera was proclaimed as winner
and assumed office.
Thus, because the early deadline of 2 January 2004 for
purposes of printing of official ballots, Eusebio filed his CoC Comelec ruled that Penera engaged in premature
on 29 December 2003. Congress, however, never intended campaigning in violation of Section 80 and disqualified Penera
the filing of a CoC before 2 January 2004 to make the person from continuing as a mayoralty candidate. The SC ruled no
filing to become immediately a “candidate” for purposes abuse of discretion on the part of the Comelec and held that
other than the printing of ballots. This legislative intent the conduct of a motorcade is a form of election campaign or
prevent the immediate application of Section 80 of the OEC partisan political activity which fall squarely under of Section
to those filing to meet the early deadline. The clear 79 of the OEC.
intention of Congress was to preserve the “election periods
as. . . . . fixed by existing law” prior to RA 8436 and that one Penera moved for reconsideration arguing that she was not
who files to meet the early deadline “will still NOT be yet a candidate at the time of the supposed premature
considered as a candidate.” campaigning, since under Section 15 of RA 8436 (the law
authorizing the Comelec to use an automated election system
In the resolution of the motion for reconsideration in Penera for the process of voting, counting of votes, and
v. Comelec 599 SCRA 609, the Supreme Court further canvasing/consolidating the results of the national and local
explained the Lanot ruling on premature electioneering: elections), as amended by RA 9369, is not officially a
candidate until the start of the campaign period.
“The campaign period for local officials began on 30 March
2007 and ended on 12 May 2007. Penera filed her CoC on 29 In granting Penera’s MR, the SC En Banc held that Penera did
March 2007. Penera was thus a candidate on 29 March 2007 not engage in premature campaigning and should thus, not
only for purposes of printing the ballots. On 29 March 2007, be disqualified as a mayoralty candidate. The Court said-
the law still did not consider Penera a candidate for purposes
other than the printing of ballots. (a) The Court’s 11 September 2009 Decision (or
the assailed Decision) considered a person who files a
Acts committed by Penera prior to 30 March 2007, the date certificate of candidacy already a “candidate” even before the
when she became a “candidate”, even if constituting election start of the campaign period. This is contrary to the clear
campaigning or partisan political activities, are not punishable intent and letter of Section 15 of RA 8436, as amended, which

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

stated that a person who files his certificate of candidacy 164858, 16 November 2006). Lanot was decided on the
will only be considered a candidate at the start of the ground that one who files a certificate of candidacy is not a
campaign period, and unlawful acts or omission applicable candidate until the start of the campaign period. This ground
to a candidate shall take effect only upon the start of such was based on the deliberations of the legislators who
campaign period. In applying the said law – explained that the early deadline for filing COC under RA
8436 was set only to afford time to prepare the machine
(1) The effective date when partisan political readable ballots, and they intended to preserve the existing
acts become unlawful election period, such that one who files his COC to meet the
as to a candidate is when the campaign early deadline will still not be considered as a candidate.
period starts. Before the start of the
campaign period, the same partisan When Congress amended RA 8436, Congress decided to
political acts are lawful. expressly incorporate the Lanot doctrine into law, thus, the
(2) Accordingly, a candidate is liable for an provision in Section 15, of RA 8436 that a person who files his
election offense only certificate of candidacy shall be considered a candidate only
for acts done during the campaign period, at the start of the campaign period. Congress wanted to
not before. In other words, election insure that no person filing a certificate of candidacy under
offenses can be committed by a candidate the early deadline required by the automated election system
only upon the start of the campaign period. would be disqualified or penalized for any partisan political
Before the start of the campaign period, act done before the start of the campaign period. This
such election offenses cannot be provision cannot be annulled by the Court except on the sole
committed. ground of its unconstitutionality. The assailed Decision,
however, did not claim that this provision is unconstitutional.
Since the law is clear, the Court has no recourse but to apply In fact, the assailed Decision considered the entire Section 15
it. The forum for examining the wisdom of the law, and good law. Thus, the Decision was self-contradictory –
enacting remedial measures, is not the Court but the reversing Lanot but maintaining the constitutionality of the
Legislature. said provision.

(b) Contrary to the assailed Decision, Section In Lanot vs. Comelec 507 SCRA 114, the Court ruled that
15, of RA 8436, as amended, does not provide that partisan there are two aspects of a disqualification case:
political acts done by a candidate before the campaign period
are unlawful, but may be prosecuted only upon the start of 1) Electoral aspect determines whether the offender
the campaign period. Neither does the law state that should be disqualified from being a candidate or
partisan political acts done by a candidate before the from holding office. Proceedings are summary in
campaign period are temporarily lawful, but becomes character and require only clear preponderance of
unlawful upon the start of the campaign period. Besides, evidence. An erring candidate may be disqualified
such a law as envisioned in the Decision, which defines a even without prior determination of probable cause
criminal act and curtails freedom of expression and speech, in a PI. The electoral aspect may proceed
would be void for vagueness. independently of the criminal aspect and vice-versa.

(c) That Section 15 of RA 8436 does not 2) Criminal aspect determines whether there is
expressly state that campaigning before the start of the probable cause to charge a candidate for an election
campaign period is lawful, as the assailed decision asserted, is offense. If there is probable cause, the Comelec
no moment. It is a basic principle of law that any act is lawful through its Law Department, files the criminal
unless expressly declared unlawful by law. The mere fact that information before the proper court. Proceedings
the law does not declare an act unlawful ipso facto means before the proper court demand a full-blown hearing
that the act is lawful. and require proof beyond reasonable doubt to
convict. A criminal conviction shall result in the
Thus, there is no need for Congress to declare in disqualification of the offender, which may even
Section 15 of RA 8436 that partisan political activities before include disqualification from holding a future public
the start of the campaign period is lawful. It is sufficient for office.
Congress to state that “any unlawful act or omission
applicable to a candidate shall take effect only upon the start CANVASSING BODIES
of the campaign period.” The only inescapable and logical
result is that the same acts, if done before the start of the Manual Canvassing
campaign period, are lawful.
Section 221, BP 881/RA 6646, Section 20 - Boards of
(d) The Court’s 11 September 2009 Decision Canvassers (Local Boards). There shall be a board of
further explained its ruling in Lanot v. Comelec (G.R. No. canvassers for each province, city and municipality as follows:

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

the winning candidates for senators and party-list

(a) Provincial Board of Canvassers – The provincial rep. (Section 27, RA 9369)
board of canvassers shall be composed of the 4) Congress – Senate and HR in joint public session as
provincial election supervisor or a lawyer in the NBOC for President and VP. Senate President shall
regional office of the Commission, as chairman, open all the certificates not later than 30 days after
the provincial fiscal, as vice-chairman, and the the day of the election. (Section 28, RA 9369)
provincial superintendent of schools as
member. Each of the BOC shall be assisted by an Information
(b) City Board of Canvassers – The city board of Technology – capable person authorized to operate the
canvassers shall be composed of the city Consolidation and Canvass System (CCS), to be known as CCS
election registrar or a lawyer of the Commission, operators who shall be deputized by the Commission.
as chairman, the city fiscal, as vice-chairman, (Section 7, RA 9369)
and the city superintendent of schools, as
member. In cities with more than one election BP881, Section 222. Relationship with Candidates and other
registrar, the Commission shall designate the members of the Board. The chairman and the members of
election registrar as chairman. the boards of canvassers shall not be related within the 4th
(c) Municipal Board of Canvassers. – The municipal civil degree of consanguinity or affinity to any of the
board of canvassers shall be composed of the candidates whose votes will be canvassed by the said board,
election registrar or a representative of the or to any member of the same board.
Commission, as chairman, the municipal
treasurer, as vice-chairman and the most senior BP881, Section 224. Feigned Illness. Any member of the
district school supervisor or in his absence a board of canvassers feigning illness in order to be substituted
principal of the school district or the elementary on election day until the proclamation of the winning
school, as member. candidates shall be guilty of an election offense.

FOR AES Electronic Canvassing – 1)CBOC and MBOC shall Section 30, RA 7166 – Congress as the National Board of
canvass the votes for the president VP, senators and parties, Canvassers for the election of President and Vice-President:
organization or coalitions participating under the party-list Determination of Authenticity and Due Execution of
system by consolidating the electronically transmitted results Certificates of Canvass. –
contained in the data source devices used in the printing of
the ER. Upon completion of the canvass, it shall print the 1) Congress for Pres. & VP (Sec. 4, Article VII)
certificate of canvass of votes for Pres, VP, senators and 2) Comelec – Senators and Regional Officials –
members of the HR and elective provincial officials and 3) PBC – Members of the HR and provincial officials
thereafter, proclaim the elected city or municipal officials, as (composed of the PES, Provincial Prosecutor and
the case may be. provincial official of the DepEd
4) District BOC in each legislative district in MM –
“xxx xxx The municipal, city, district and provincial members of the HR and municipal officials
certificate of canvass of votes shall each be supported by a 5) City and MBOC – member of the HR, city and
SOV.” municipal officials composed of the city or municipal
“Within 1-hour after canvassing, the Chairman of EO, City Prosecutor and DepEd Superintendent
the district or provincial Board of Canvassers or the city board
of canvassers of those cities which comprise one or more RA 9189, Section 18(4) – A Special Board of Canvassers
legislative districts shall electronically transmit the COC to composed of a lawyer preferably of the Commission as
the Commission sitting as the national board of canvassers chairman, a senior career office from any of the government
for senators and party-list rep and to the Congress as the agencies maintaining a post abroad and, in the absence of
NBOC for the president and VP directed to the President of another government officer, a citizen of the Philippines
the Senate. qualified to vote under this Act deputized by the Commission,
“The certificate of canvass transmitted as vice-chairman and member secretary, respectively, shall be
electronically and digitally signed shall be considered as constituted to canvass election returns submitted to it by the
official election results and shall be used as the basis for the Special Boards of Elections Inspectors. Xxx xxx “The
proclamation of a winning candidate”. (RA 9369). Certificates of Canvass and the accompanying Statements of
Votes as transmitted via facsimile, electronic mail and any
3) Comelec – as NBOC for Senators and Party-List other means of transmission equally safe, secure and reliable
Representatives – Chairman and members of the shall be the primary basis for the national canvass.
Commission sitting en banc. It shall canvass the
results by consolidating the certificates of canvass
electronically transmitted and thereafter proclaim

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

CERTIFICATE OF VOTES, STATEMENT OF VOTES, ELECTION Statement of Votes – is a tabulation per precinct of the votes
RETURNS AND DISTRIBUTION obtained by the candidates or reflected in the ER.

Certificate of Votes – is an election document issued by the Certificate of Canvass – is based on the SV and which serves
BEI’s after the counting and announcement of the results and as basis for proclamation.
before leaving the polling place upon request of the
accredited watcher. It shall contain the number of votes
obtain by each candidate written in words and figures, DISPOSITION OF ELECTION RETURNS
precinct #, name of the city or municipality signed and
thumb marked by each member of the board. Under Manual Elections

Typoco vs. Comelec 614 SCRA 391 – In Garay v. Comelec 261 Election Returns and Distribution – Section 27 of RA 7166, as
SCRA 222 (1996) the Court held that “(a) certificate of votes amended by RA 8045 and RA 8173, provides that in the
does not constitute sufficient evidence of the true and election for Pres., VP, Senators and members of the HR, the
genuine results of the election; only election returns are, ER shall be distributed as follows -
pursuant to Sections 231, 233-236 and 238 of BP881.” Again  1st CBO or MBOC
in De Guzman v. Comelec 426 SCRA 698 (2004) the Court  2nd posted on a wall within the premises of the
stated that, in an election contest where the correctness of polling place
the number of votes is involved, the best and most conclusive  3rd copy congress, directed to the Pres. of the Senate
evidence are the ballots themselves; where the ballots can  4th to Comelec
nor be produced or are not available, the election returns  5th to Dominant majority party as may be
would be the best evidence.” determined by the Comelec in accordance with law
 6th to Dominant minority party as may be
Doromal vs. Biron/Comelec 613 SCRA 160 (2010) – the determined by Comelec in accordance with law
certificate of votes, which contains the number of votes  7th Citizens Arms authorized by the Comelec to
obtained by each candidate, is issued by the BEI upon the conduct an unofficial count to be deposited inside
request of the duly accredited watcher pursuant to Section the ballot box.
16 of RA 6646. Relative to its evidentiary value, Section 17 of  8th deposited inside the compartment of the ballot
RA 6646 provides that Sections 235 and 236 of BP 881 box for valid ballots.
notwithstanding, the Certificate of Votes shall be admissible
in evidence to prove tampering, alteration, falsification or For Local officials – (1) CBOB or MBOC (2) posted on the wall
any anomaly committed in the preparation of the election (3) Comelec (4) PBOC (5) DMajorityP (6) DMinorityP (7)
returns concerned, when duly authenticated by at least two Citizen’s Arms for unofficial count (8) inside ballot box.
members of the BEI who issued the certificate. Failure to
present the CV shall however not bar the presentation of The 30 certified printed copies for national positions – 14 to
other evidence to impugn the authenticity of the ER. It 14 accredited major and national parties in accordance with a
cannot be a valid basis of canvass. voluntary agreement among them. Otherwise Comelec shall
decide. Next 3 copies to the 3 accredited major local parties
Purpose of requiring authentication of at least 2 members of (same provision). Next 5 copies to the national broadcast or
the BOC – to safeguard the integrity of the certificate from print media entities as may equitably be determined by the
the time it is issued by the BEI to the watcher after the Commission. Next 2 copies to local broadcast & print media
counting of votes at the precinct level up to the time that it is and next 4 copies to major citizen arms and accredited citizen
presented to the board of canvassers to proved tampering. arm. Next copy to be place inside the ballot box and last copy
to the PBC.

FUNCTIONS OF THE CERTIFICATE OF VOTES Electronic Returns for AES – Section 19 RA 6369 amended
Sec. 18 of RA 8436. “Sec. 22” – Electronic Returns – each copy
 Prevent or deter the members of the BEI or other of the printed election returns shall bear the appropriate
official from altering the statement because they control marks to determine the time and place of printing.
know of the existence of such certificate
 To advise the candidate definitely of the number of Each copy shall be signed and thumbmarked by all the
his votes so that in case the election statement members of the BEI and watchers present. Xxx xxxx xxx . The
submitted to the BOC does not tally with the chairman of the boards shall then publicly read and
certificate in his hands, he may ask that the other announce the total number of registered voters who actually
authentic copies of the same be used for the canvass voted and the total numbers of votes obtained by each
 To serve as evidence of fraud in election protest candidate based on the election returns.
cases and in subsequent prosecution of the election
offenses against those liable therefore.

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

“Thereafter, the copies of the election returns shall be sealed election not held, suspended or which resulted to a failure to
and placed in the proper envelopes for distribution.” elect but not later than 30 days after the cessation of the
cause for such postponement or suspension of the election or
“Immediately after the 8th copy is printed, the poll clerk shall failure to elect.
announce the posting of said copy on the wall within the
premises of the polling place or counting center, which must Sec. 6 on the other hand, prescribes the conditions for the
sufficiently be lighted and accessible to the public. Any exercise of the power to declare a Failure of Elections. As
person may view or capture an image of the election return reiterated in Dibaratun vs. Comelec 611 SCRA 367, citing
by means of any data capturing device such as, but not Banaga Jr. v. Comelec 336 SCRA 701 (2000) also in Canicosa
limited to cameras at any time of the day for 48 hours v. Comelec 282 SCRA 517 - to declare a failure of elections,
following its posting. After such period, the chairman of the either of these three (3) instances should be present
BEI shall detach the ER from the wall and keep the same in his conformably with Section 6 of the OEC –
custody to be produced as may be requested by any voter for
image or data capturing or for any lawful purpose as may be  the election in any polling place has not been held
ordered by competent authority.” on the date fixed on account of force majeure,
violence, terrorism, fraud or other analogous causes;
“Within one (1) hour after the printing of the ER, the  the election in any polling place has been suspended
chairman of the BEI or any official authorized by the Comelec before the hour fixed by law for the closing of voting
shall, in the presence of watchers and representatives of the on account of FM, terrorism, fraud or other
accredited citizens arm, political parties/candidates, if any, analogous causes
electronically transmit the precinct results to the respective  after the voting and during the preparation and
levels of the BOC, the dominant majority and minority party, transmission of the ER or in the custody of canvass
to the accredited citizen’s arm, and to the Kapisanan ng mga thereof, such election results in a failure to elect on
Broadcaster ng Pilipinas (KBP).” the same grounds.

The election results at the city/municipality canvassing Based on the foregoing provisions, two (2) conditions must
centers shall be transmitted in the same manner by the concur to declare a failure of elections –
election officer or any official authorized by the commission
to the district or provincial canvassing centers. “The election  no voting has taken place in the precincts concerned
returns transmitted electronically and digitally signed shall on the date fixed by law or, even if there was voting
be considered as official election results and shall be used as the election nevertheless resulted in a failure to
the basis for the canvassing of votes and the proclamation elect and
of a candidate.”  the votes not cast would affect the results of the
elections (Carlos. V. Angeles)
After the electornic results have been transmitted additional
copies not to exceed 30 may be printed and given to In the same case of Coquilla v. Comelec, the SC stressed that
requesting parties at their own expenses. (RA 9369) “what is common in these three instances is the resulting
failure to elect. In the first instance, no election was held,
Petition to Declare a postponement, failure or annulment of while in the second, the election is suspended. In the third
elections and call for a special elections in accordance with instance, circumstances attending the preparation,
Sections 5,6, & 7 of the OEC as amended by Sec. 4 of RA transmission, custody or canvas of the election returns cause
7166. a failure to elect. And, the term failure to elect means
nobody emerged as a winner.”
Sec. 5 of the OEC provides for the grounds for declaring a
postponement of elections that is when for - Procedural Rules - On the basis of a verified petition by any
 any serious cause such as violence, interested party and after due notice and hearing, the
 terrorism, Comelec may call for the holding or continuation of the
 loss or destruction of election paraphernalia or election not held, suspended or which resulted in a failure to
records, elect on a date reasonably close to the date of the election
 FM and other analoguous circumstances of such a not held, suspended or which resulted in a failure to elect but
nature that the holding of a HOPE-FRECRE should not later than 30 days after the cessation of the cause of such
become impossible in any political subdivision. postponement or suspension of the election or failure to
elect.
Jurisdiction - the Commission en banc may “motu propio or
upon a verified petition by any interested party, and after due Sec. 4 of RA 7166 (An Act Providing for the Synchronized
notice and hearing, whereby all interested parties are National and Local Elections) provides that any declaration of
afforded equal opportunity to be heard, shall postpone the postponement, failure of election and calling for a special
election to a date which is reasonably close to the date of the elections as provided in Section 5,6, & 7 shall be decided by

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

the Commission sitting en banc by a majority vote of its

members. This power is exclusively vested in the Comelec as The SC held that the Comelec is not mandated to conduct a
ruled in the case of Sanchez v. Comelec 193 SCRA 849. technical examination before it dismisses a petition for
nullification of election when the petition is, on its face,
Loong v. Comelec 257 SCRA 1, a petition to declare failure of without merit. In the case of Typoco, petitioner buttressed
elections/annulment of elections on the ground of massive his petition with independent evidence that compelled the
fraud in some municipalities was filed before proclamation.. Comelec to conduct a technical examination of the
Comelec dismissed the petition for having been filed out of questioned returns. Typoco filed a Motion to Admit Evidence
time since it was filed only after petitioners realized that the to prove that a substantial number of election returns were
annulment of election will wipe out their lead. HELD: It was manufactured and claimed that the returns were prepared by
ruled that the Comelec Resolution dismissing the petition was only one person based on the report of a licensed examiner
arbitrary as no law provided for a reglementary period within of questioned documents who examined copies of the
which to file a petition for annulment of elections if there is election returns. Pasandalan failed to attach independent
no proclamation yet. and objective evidence other than the self-serving affidavits
of his own poll watchers.
Canicosa v. Comelec 282 SCRA 512, Canicosa filed with the
Comelec a Petition to declare failure of elections and to In Basher, the fact that an election is actually held prevents
declare null and void the canvass and proclamation based on as a rule, a declaration of failure of elections, the Court,
the following grounds (names of the RV did not appear on the however, can annul an election if it finds that the election is
list, padlocks were not self locking among other) which was attended with patent and massive irregularities and
dismissed by the Comelec en banc on the ground that the illegalities. In this case, after a series of failed elections in
allegations therein did not justify the declaration of failure of Brgy. Maidan, Municipality of Tugaya, Lanao del Sur during
elections. the 1997 Brgy. Elections, the election was reset to 30 August
1997. Due to the prevailing tension in the locality, the voting
Canicosa insists that its was error on the part of Comelec started only at around 9 p.m. and lasted until the early
sitting en banc to rule on his petition as it should have first morning of the following day. Basher filed a petition for the
been heard by a division. The SC held that the matter relating nullification of the election which was dismissed by the
to the declaration of failure of elections or the allegations Comelec on the ground that actual voting had taken place.
raised by Canicosa did not involve an exercise of QJ or The SC overturned the Comelec ruling because the election
adjudicatory functions. It involves an administrative function was unauthorized and invalid. The electorate was not given
which pertains to the enforcement and administration of all sufficient notice that the election would push through after
laws and regulations relative to the conduct of elections. 9pm of the same day. Moreover, the voting did not comply
with the procedure laid down by the Comelec in its
Pasandalan vs. Comelec, et. al., G.R. No. 150312 July 18, Resolution.
2002, the SC held that a petition for declaration of failure of
elections is an “extraordinary remedy” and therefore the Banaga Jr. vs. Comelec 336 SCRA 701, the fact that a verified
petition must specifically allege the essential grounds that petition has been filed does not mean that a hearing on the
would justify the same. Otherwise, the Comelec can dismiss case should first be held before Comelec can act on it. The
the petition outright for lack of merit and no grave abuse of petition must show on its face that the conditions necessary
discretion can be attributed to it. The Comelec is mandated to declare a failure of elections are present.
to exercise this power with utmost circumspect to prevent
disenfranchising voters and frustrating the electorate’s well.” Ampatuan et. al. v. Comelec/Candao, et. al., G.R. No.
149803, January 31, 2002, private respondents filed a
In this case, Pasandalan filed a petition for declaration of petition for declaration of failure of elections in several
failure of election on the ground that while voting was going municipalities in Maguindanao. During the pendency of the
on Cafgu’s indiscriminately fired their firearms causing the hearing of said petition, the Comelec proclaimed petitioners
voters to panic and leave the polling places without casting as winners for the position of governor, vice-governor and
their votes and taking advantage of the situation, the board members.
supporters of his opponent took the official ballots and filled
them up with his name, the BEI’s failed to affix their initials at Thereafter, the Comelec issued an order directing the
the back of several official ballots. continuation of the hearing on the failure of elections and
issued an order outlining the procedure to be followed in the
Pasandalan , on the basis of the affidavits of his own poll technical examination. Petitioners, relying on the case of
watchers, insists that a technical examination of the official Typoco, Jr. v. Comelec, contended that by virtue of their
ballots in the contested precincts be made which would proclamation, the only remedy left for private respondents is
show that only a few persons wrote the entries, citing the to file an election protest, in which case, original jurisdiction
case of Typoco v. Comelec 319 SCRA 498 and Basher v. lies with the regular courts and that Comelec no longer has
Comelec 330 SCRA 736. jurisdiction to conduct a technical examination as it would

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

defeat the summary nature of a petition for declaration of of the OEC in relation to the preparation, transmission,
failure of elections citing several rulings that an election receipt, custody and appreciation of the ER and Certificate
protest is the proper remedy for a losing candidate after the of Canvass.
proclamation of the winning candidates.
Section 17, RA 6646, questions affecting the composition or
ISSUE: Whether the Comelec was divested of its jurisdiction proceedings of the BOC may be initiated with the board or
to hear and decide a petition for declaration of failure of directly with the Comelec. However, matters raised under
elections after the winners have already been proclaimed. Sec. 233 to 236 shall be brought in the first instance before
the BOC only.
HELD: It was ruled that the fact that the a candidate
proclaimed has assumed office does not deprive the Comelec Authority of the Comelec in PPC – the Commission exercises
of its authority to annul any canvass and illegal proclamation. authority to decide PPC in two instances –
In this case, it cannot be assumed that the proclamation of  in appeals from the ruling of the BOC which is
petitioners was legal precisely because the conduct by which generally of two types first type are on questions
the elections were held was put in issue by respondents in contesting its composition or proceedings and
their petition for annulment of election results and/or appeal therefrom must be taken by the contestant
declaration of failure of elections. The cases relied upon by adversely affected within 3 days from such ruling
petitioners that an election protest is the proper remedy for a .and the second type refers to ruling on questions
losing candidate after proclamation of the winning candidate contesting ER. The party adversely affected must
involved pre-proclamation controversies. immediately inform the board that he intends to
appeal from the ruling and the board shall enter said
The SC made reference to its ruling in Loong v. Comelec that “ information in the minutes of the canvass and within
a pre-proclamation controversy is not the same as an action 48 hours from the ruling, the adverse party must file
for annulment of election results, or failure of elections”. In with the board a written and verified notice of
pre-proclamation cases, the Comelec is restricted to an appeal, and within an unextendible period of 5 days
examination of the election returns on their face and is thereafter, he has to take the appeal to the Comelec
without jurisdiction to go beyond or behind them and  in petitions directly filed with it.
investigate election irregularities. The Comelec is duty-bound
to investigate allegations of fraud, terrorism, violence and EXCEPTIONS: Section 15 of RA 7166 provides that for
other analogous causes in actions for annulment of election purposes of the elections for Pres. and VP, Senators and
results or for declaration of failure of elections conformably members of the HR, no PPC cases shall be allowed on matters
with the OEC. Accordingly, the Comelec, in the case of relating the P,T,R,C, and A of the ER or the certificate of
actions for annulment of election results or declaration of canvass, as the case may be. HOWEVER, this does not
failure of elections, may conduct technical examination of preclude the authority of the appropriate canvassing body
election documents and compare and analyze voters’ motu proprio or upon written complaint of an interested
signatures and thumbprints in order to determine whether or person to correct manifest error in the certificate of canvass
not the elections had indeed been free, honest and clean. or ER before it.

In the case of Pimentel v. Comelec, Section 68 of RA 9369

PRE-PROCLAMATION CONTROVERSY significantly amended Section 15 of RA 7166 by adding an
excepting phrase to the general prohibition against pre-
BP 881, Section 242 – The Commission shall have exclusive proclamation controversies in elections for Pres., VP,
jurisdiction of all pre=proclamation controversies. It may Senators and members of HR. According to the amended
motu propio and after due notice and hearing, order the Section 15, “pre-proclamation cases involving the
partial or total suspension of the proclamation of any authenticity and due execution of COC are now allowed”
candidate-elect or annual partially or totally any pursuant to Section 30 of RA 9369. The general rule is still,
proclamation, if one has been made, as the evidence shall that “pre-proclamation cases on matter relating to the
warrant in accordance with the succeeding sections. preparation, transmission, receipt, custody and appreciation
of ER or COC are still prohibited.
Matalam v. Comelec 271 SCRA 733/BP 881 – a pre-
proclamation controversy is defined, as a general rule, any The recognized exceptions to the said prohibition are: 1)
question pertaining to or affecting the proceedings of the correction of manifest error; 2) question affecting the
BOC which may be raised by any candidate or any registered composition or proceedings of the BOC and 3)
political party or coalition of political before the board or determination of the authenticity and due execution of the
directly with the Comelec, on any matter raised under COC.
Sections 233 (when ER are delayed, lost or destroyed), 234
(material defects in the ER), 235 (when ER appear to be Sano Jr. vs. Comelec 611 SCRA 475 – It is settled that a pre-
tampered with or falsified) and 236 (discrepancies in the ER) proclamation controversy is summary in character; indeed, it

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

is a policy of the law that pre-proclamation be promptly Velayo v. Comelec 327 SCRA 713 – a PPC is summary in
decided, so as not to delay canvass and proclamation. The nature, administrative in character and which is filed before
board of canvassers will not look into allegations of the BOC. It was ruled that while it is true that RA 7166
irregularity that are not apparent on the face of ER’s that provides for summary proceedings in PP cases and does not
appear otherwise authentic and duly accomplished. require a trial type hearing, nevertheless, summary
proceedings cannot be stretched as to mean ex-parte
Macabago v. Comelec 392 SCRA 178 – it was held that issues proceedings.
in a PPC is properly limited to challenges aimed against the
BOC and proceedings before said board relative to particular In Velayo case, respondent objected to the inclusion of two
ER to which respondent should have made particular verbal (2) ER’s which did not contain a vote for respondent being
objections subsequently reduced in writing. statistically improbable which was overruled by the BOC. It
was ruled that it is possible for a candidate to get zero votes
BP 881 SECTION 243.COMELEC RULES OF PROCEDURE RULE in one or few precincts. The bare fact that a candidate
27 (4) - SCOPE/ISSUES THAT MAY BE RAISED IN A PRE- receive zero votes in 1 or 2 precincts can not support a
PROCLAMATION CONTROVERSY finding that the ER are statistically improbable. (Exception to
the Lagumbay Doctrine)
 Illegal composition or proceedings of the BOC
 The canvassed ER are incomplete, contain material Lagumbay v. Comelec 16 SCRA 175 (1966) - The Lagumbay
defects, appear to be tampered with, or falsified or doctrine is the prevailing case on statistical improbability
contain discrepancies in the same returns or in other which states that where there exists uniformity of tallies in
authentic copies as mentioned in Sec. 233-236 favor of candidates belonging to one party and the systematic
 The ER were prepared under duress, threats, blanking out of the opposing candidates as when all the
coercion or intimidation or they are obviously candidates of one party received all the votes, each of whom
manufactures or not authentic – in Ocampo v. exactly the same number, and the opposing candidates got
Comelec 235 SCRA 436, it was held that this fact zero votes, the election returns are obviously manufactures,
must be evident from the face of the said document. contrary to al statistical improbabilities and utterly
In the absence of a strong evidence establishing improbable and clearly incredible.
spuriousness of the returns, the basic rule is that the
ER shall be accorded prima facie status as bona fide In Ocampo v. Comelec 325 SCRA 636, it was reiterated that if
reports of the results of the count of the votes which only one candidate obtained all the votes in some precincts,
shall prevail for purposes of canvassing and this is not sufficient to make the election returns statistically
proclamation. improbable.
 When substitute or fraudulent returns in Imelda Dimaporo vs. Comelec/Vicente Belmonte 544 SCRA
controverted polling places are canvassed, the result 381 - (Sec. 15 of RA 7166) provides that for the purpose of
of which materially affect the standing of the the elections for president, VP, senator & member of the HR,
aggrieved candidate. (Sec. 243) no pre-proclamation cases shall be allowed on matters
relating to the preparation, transmission, receipt, custody
Under the AES in 2010 Elections – same scope and coverage. and appreciation of ER or the certificate of canvass, as the
case may be, except as provided for in Sec. 30 hereof.
PROCEDURAL REQUIREMENTS IN A PRE-PROCLAMATION However, this does not preclude the authority of the
CONTROVERSY appropriate canvassing body motu propio or upon written
complaint of an interested person to correct manifest errors
Sec. 20 of RA 7166 (repealing Sec. 245 OEC) provides for the in the certificate of canvass or ER before it).
mandatory two-step rule or requirement of verbal objection
to the inclusion of the ER and to be formalized in writing Rommel Munoz vs. Comelec, Carlos Balido Jr. 495 SCRA 407
within 24 hours. Failure to observe such rule is fatal to a - “Results of the Elections” Defined – the phrase “results of
candidate’s cause, leaving him with no other remedy except the election” is not statutorily defined. However, as
an EP. This cannot be cured by instituting a petition directly explained in Lucero v. Comelec it means “the net result of the
filed with the Comelec under Sec. 241 election the rest of the precincts in a given constituency, such
that if the margin of a leading candidate over that of his
Sandoval v. Comelec 323 SCRA 407, it was stressed that closest rival in the latter precincts is less than the total
Comelec exercises exclusive jurisdiction and may motu propio number of votes in the precinct where there was failure of
or upon verified petition, and after due notice and hearing, election, than such failure would certainly affect “the results
order the partial or total suspension of the proclamation of of the elections.”
the candidate elect or annul partially or totally any
proclamation, if one has been made, as the evidence shall
warrant in accordance with Sec. 242 of the OEC.

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

EFFECT OF ASSUMPTION OF OFFICE OF CANDIDATE alleged irregularities in the appreciation and counting of
ELECT/WHEN PPC IS NOT DEEMED TERMINATED ballots. These guiding standards are:
1) Ballots cannot be used to overturn the official as
A pre-proclamation controversy is no longer viable after the reflected in the election returns unless it is first
proclamation of the winning candidates as the issues raised shown affirmatively that the ballots have been
therein may be more closely examined and better resolved in preserved with a care which precludes the
an EP. (RA 7166, Section 16 (2)). opportunity of tampering and suspicion of change,
abstraction or substitution.
However, this is only true where the proclamation is based on 2) The burden of proving that the integrity of the
a complete canvass and on the assumption that the ballots has been preserved in such a manner is on
proclamation is valid where a proclamation is null and void, the protestant;
the proclamation is no proclamation at all and the proclaimed 3) Where a mode of preserving the ballots is enjoined
candidate’s assumption of office cannot deprive the Comelec by law, proof must be made of such substantial
of the power to declare such nullity and annul the compliance with the requirements of that mode as
proclamation. would provide assurance that the ballots have been
kept inviolate notwithstanding slight deviations from
Section 16 of RA 7166 provides that all-pre-proclamation the precise mode of achieving that end;
cases pending before the Commission shall be deemed 4) It is only when the protestant has shown substantial
terminated at the beginning of the term of office involved compliance with the provisions of law on the
and the rulings of the boards of canvassers concerned shall preservation of ballots that the burden of proving
be deemed affirmed, without prejudice to the filing of a actual tampering or likelihood thereof shifts to the
regular election protest by the aggrieved party. HOWEVER, protestee; and
proceedings may continue when on the basis of the evidence 5) Only if it appears to the satisfaction of the court of
thus far presented, the Commission determines that the Comelec that the integrity of the ballots has been
petition appears meritorious and accordingly issued an order preserved should it adopt the result as shown by the
for the proceedings to continue or when appropriate order recount and not as reflected in the election returns.
has been issued by the SC in a petition for certiorari
Rosal was promulgated precisely to honor the presumption of
regularity in the performance of official functions. Following
ELECTION PROTEST Rosal, it is presumed that the BEI and the BOC had faithfully
performed the solemn duty reposed onto them during the
An EP is a special statutory proceedings designed to contest day of the elections. Primacy is therefore accorded to the
the right of a person, declared elected to enter upon and hold official results of the canvassing, even in cases where there is
office. It is strictly a contest between the defeated and a discrepancy between such results and the results of the
winning candidates as to who actually obtained the majority revision proceedings. It is only when the protestant
of the legal votes and therefore, is entitled to hold office. successfully discharged the burden of proving that the
recounted ballots are the very same one counted during the
NATURE OF PROCEEDING - It is a formal judicial proceedings revision proceedings, will the court or the Commission, as the
that goes into the correctness of the counting and case may be, even consider the revision result.
appreciation of ballots at the precinct level were the parties
are allowed to present and examine evidence in detail. The Rosal doctrine ensures that in election protest cases, the
supreme mandate of the people is ultimately determined. In
WHO CAN FILE – can only be filed by a candidate who has laying down the rules in appreciating the conflicting results of
duly filed a certificate of candidacy and has been voted for. the canvassing and results of a revision later made, the Court
has no other intention but to determine the will of the
PERIOD TO FILE – within 10 days from proclamation electorate.

GROUNDS – fraud, vote-buying, terrorism, presence of flying The Rosal doctrine is also supplemented by A.M. No. 07-4-15-
voters, misreading and misappreciation of the ballots, SC (Rules of Procedure in Election Contests Before The Courts
disenfranchisement of voters, other election irregularities. Involving Elective Municipal and Barangay Officials which
took effect May 15, 2007), establishing the following
disputable presumptions:
Jaime C. Regio vs. Comelec and Ronnie C. Co. 711 SCRA 448
citing Rosal v. Comelec 518 SCRA 473 (2007) on the
Sec. 6. Disputable presumptions. – The following
standards to be observed in an election contest – In Rosal,
presumptions are considered as facts, unless contradicted
the SC summarized the standards to be observed in an
and overcome by other evidence:
election contest predicated on the theory that the election
(a) On the election procedure:
returns do not accurately reflect the will of the voters due to

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

a. The election of candidates was held on the Facts: Motion for reconsideration was denied by Comelec en
date and time set and in the polling place banc for lack of verification as required by Section 3, Rule 20
determined by the Comelec; of the Comelec Rules of Procedure on Disputes in an
b. The BEI were duly constituted and Automated Election System and Section 3, Rule 19 of CRP.
organized;
c. Political parties and candidates were duly Comelec Rules of Procedure are subject to liberal
represented by poll watchers; construction. In Quintos v. Comelec (440 Phil. 1045; 392
d. The Minutes of Voting and Counting SCRA 489 (2002)), this Court held that “the lack of verification
contains all the incidents that transpired of private respondent’s Manifestation and Motion for Partial
before the BEI; Reconsideration is merely a technicality that should not
defeat the will of the electorate. The Comelec may liberally
(b) On election paraphernalia: construe or even suspend its rules of procedure in the
a. Ballots and ER that bear the security interest of justice, including obtaining a speedy disposition of
markings and features prescribed by the all matter pending before the Comelec.”
Comelec are genuine;
b. The data and information supplied by the Nature of Election Protest: In Pacanan v. Comelec 597 SCRA
members of the BEI in the accountable 189 (2009), the Court, in clarifying the mandated liberal
forms are true and correst; and construction of election laws held: An election contest,
c. The allocation, packing and distribution of unlike an ordinary civil action, is clothed with a public
election documents or paraphernalia were interest. The purpose of an election protest is to ascertain
properly and timely done. Xxxx xxx that the candidate proclaimed by the board of canvassers is
the lawful choice of the people. What is sought is the
Fact: Go challenged the proclamation of Regio. Go filed an correction of the canvass of votes, which was the basis of
election protest and ballots were subject to revision. Go won proclamation of the winning candidate.
in the revision and now claims to have won on the basis
thereof. Comelec upon MR reversed MeTC and 2nd and An election contest therefore involves not only the
declared Go. Go did not submit any evidence that the adjudication of private and pecuniary interests of rival
integrity of the ballots were preserved except for the candidates but paramount to their claims is the deep public
allegation that there were no news report as to the manner concern involved and the need of dispelling the uncertainty
the ballot boxes were delivered etc. over the real choice of the electorate. And the court has the
corresponding duty to ascertain, by all means within its
Lucy Marie Torres-Gomez v. Eufrocino C. Codilla/ 668 SCRA command, who is the real candidate elected by the people.
600 (2012)
Moreover, the CRP are subject to a liberal construction. This
Verification – (Defective verification) The verification of a liberality is for the purpose of promoting the effective and
pleading is only a formal, not jurisdictional requirement. The efficient implementation of the objectives of ensuring the
purpose of requiring the verification is to secure an assurance holding of free, orderly, honest, peaceful and credible
that the allegations in the petition are true and correct, not elections and for achieving just, expeditious and inexpensive
merely speculative. This requirement is simply a condition determination and disposition of every action and
affecting the form of pleadings, and non compliance proceeding brought before the Comelec.
therewith does not necessarily render the pleading fatally
defective. This principle was reiterated in the more recent consolidated
cases of Tolentino v. Comelec 617 SCRA 575 (2010) and De
Nature of Election controversy – An election controversy, by Castro vs. Comelec 617 SCRA 575, where the Court held that
its nature, touches upon the ascertainment of the people’s in exercising its powers and jurisdiction, as defined by its
choice as gleaned from the medium of the ballot. For this mandate to protect the integrity of elections, the Comelec
reason, an election protest should be resolved with utmost “must not be straitjacketed by procedural rules in resolving
dispatch, precedence and regard of due process. Obstacles election disputes.”
and technicalities that fetter the people’s will should not
stand in the way of a prompt determination of election Douglas R. Cagas v. Comelec/Bautista 663 SCRA 644 (2012) -
contests. Thus, rules on the verification of protests should be The Court has no power to review on certiorari an
liberally construed. (Statutory Rules on Construction) interlocutory order or even a final resolution issued by a
Court upheld the jurisdiction of HRET as the sole judge of all Division of the Comelec. The governing provision is Section
contests relating to the election, returns and qualifications of 7, Article IX of the 1987 Constitution, which provides: Section
the member of the HRET. 7. Each Commission shall decide by a majority vote of all its
Members any case or matter brought before it within sixty
Salvador D. Viologo, Sr., v. Comelec 658 SCRA 516 (2011) days from the date of its submission for decision or
resolution. A case or matter is deemed submitted for decision

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

or resolution upon the filing of the last pleading, brief, or when the case was heard at 2pm, Nuez moved in open court
memorandum required by the rules of the Commission or by to be allowed to present evidence ex parte since Bulilis only
the Commission itself. filed his brief on the date of the preliminary conference which
is contrary to Section 4, Rule 9 of A.M. No. 08-4-15-SC which
Unless otherwise provided by this Constitution or by law, provides that the brief should be filed at least one (1) day
any decision, order, or ruling of each Commission may be before the date of the preliminary conference. Judge Garces
brought to the Supreme Court on certiorari by the aggrieved granted the motion.
party within 30 days from receipt of a copy thereof. This
provision, although it confers on the Court the power to Bulilis filed MR which was denied by MCTC. Bulilis filed
review any decision, order or ruling of the Comelec, limits certiorari with RTC which was dismissed on the ground that it
such power to a final decision or resolution of the Comelec en is Comelec that has exclusive jurisdiction in election cases
banc and does not extend to an interlocutory order issued by involving municipal and barangay officials. Hence, the
a Division of the Comelec. Otherwise stated, the Court has petition for certiorari with the SC.
no power to review on certiorari an interlocutory order or
even a final resolution issued by a Division of the Comelec. (Rule 28, Sections 1 and 2 of CRP/Section 12 Amendments to
Rules 41, 45, 58 and 65 of the Rules of Court/Section 8, Rule
Maria Laarni L. Cayetano v. Comelec/Dante Tinga 648 SCRA 14 of Comelec CRP ). Based on these rules, the Court
561 (2011) – The Supreme Court has no jurisdiction to recognizes the Comelec’s appellate jurisdiction over petitions
review an order, whether final or interlocutory even a final for certiorari against all acts or omissions of courts in election
resolution of a division of the Comelec – the Court can only cases. Indeed, in the recent case of Galang, Jr. v. Geronimo
review via certiorari a decision, order, or ruling of the 643 SCRA 631 (2011), the Court had the opportunity to rule
Comelec en banc in accordance with Section 7, Article IX-A of that a petition for certiorari questioning an interlocutory
the Constitution, a rule which admits of exceptions as when order of a trial court in an electoral protest was within the
the issuance of the assailed interlocutory order is a patent appellate jurisdiction of the Comelec.
nullity because of the absence of jurisdiction to issue the
same. (Court made reference to the case of Repol v. Comelec Since it is the Comelec which has jurisdiction to take
428 SCRA 321 (2004) which was affirmed in Soriano Jr. v. cognizance of an appeal from the decision of the RTC in
Comelec 520 SCRA 88 (2007) and Blanco v. Comelec 554 election contests involving elective municipal officials (Sec. 8
SCRA 755. Ruling in Soriano. . . Rule 14 CRP), then it is also the Comelec which has
jurisdiction to issue a writ of certiorari in aid of its appellate
“In the 2004 case of Repol v. Comelec, the Court cited Ambil jurisdiction.
and held that this Court has no power to review via certiorari
an interlocutory order or even a final resolution of a division Although Galang involved a petition for certiorari of an
of the Comelec. However, the Court held that an exception interlocutory order of the RTC in a municipal election contest,
to this rule applies where the commission of grave abuse of the rationale for the above ruling applied to an interlocutory
discretion is apparent on its face. In Repol, what was assailed order issued by a municipal trial court in a barangay election
was a status quo ante Order without any time limit, and more case. Under Rule 14, Section 8 of A.M. No. 07-4-15-SC,
than 20 days had lapsed since its issuance without the decisions of municipal trial courts in election contests
Comelec First Division issuing a writ of preliminary injunction. involving barangay officials are appealed to the Comelec.
The Court held that the status quo ante Order of the Comelec
First Division was actually a temporary restraining order Following the Galang doctrine, it is the Comelec which has
because it ordered Repol to cease and desist from assuming jurisdiction over petitions for certiorari involving acts of the
the position of municipal mayor of Pagsanghan, Samar and municipal trial courts in such election contests.
directed Ceracas to assume the post in the meantime. Since
the status quo ante Order, which was qualified by the phrase Romeo M. Jalosjos, Jr v. Comelec and Dan Erasmo, Sr. 674
“until further orders from this Commission.” Had a lifespan of SCRA 530 (2012)
more than 20 days, this Order clearly violates the rule that a
temporary restraining Order has an effective period of only Demarcation line between the jurisdiction of the Comelec
20 days and automatically expires upon the Comelec’s denial and the House of Representatives: Facts: In May 2007
of preliminary injunction.” Jalosjos ran for Mayor of Tampilisan, Zamboanga del Norte
and won. While serving as Tampilisan Mayor, he bought a
Ceriaco Bulilis v. Victorino Nuez, Presiding Judge of MCTC, residential house and lot in Barangay Veterans Village, Ipil,
Ubay Bohol, Presiding Judge of RTC Branch 52, Talibon, Zamboanga Sibugay and occupied it in September 2008.
Bohol 655 SCRA 241 (2011) - Facts: Bulilis was proclaimed Eight months after, he applied with the ERB of Ipil,
winner for the elections for punong barangay. Opponent Zamboanga Sibugay for the transfer of his voters registration
Victorino Nuez filed an EP (for judicial recount and annulment record which application was opposed by Erasmo in a petition
of proclamation) with MCTC. The counsel of Bulilis filed his for exclusion before the MCTC of Ipil-Tungawan. RTC ruled to
brief at 1:45pm on the date of preliminary conference and exclude Jalosjos on the ground that Jalosjos did not abandon

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

his domicile im Tampilisan since he continue even then to Its primordial objective is to prevent an elective official from
serve as its Mayor. Jalosjos appealed his case to the RTC of assuming office grounded on ineligibility. (Sec. 253 OEC).
Pagadian City which affirmed the MCTC decision on
September 11, 2009. Jalosjos elevated the matter to the CA In Velasco v. Belmonte 780 SCRA 81, the SC defined QW as a
through a petition for certiorari with an application for the proceeding to determine the right of a person to the use or
issuance of a writ of preliminary injunction which was exercise of a franchise or office and to oust the holder from
granted and enjoined the courts below from enforcing their its enjoyment, if his claim is not well-founded, or if he has
decisions, with the result that his name was reinstated in the forfeited his right to enjoy the privilege. So, where the action
Barangay Veterans Village’s list pending the resolution of the is filed by a private person, he must prove that he is entitled
petition. to the controverted position; otherwise, the respondent has a
right to the undisturbed possession of the office.
On November 28, 2009, Jalosjos filed his CoC for the position
of representative of the Second District of Zamboanga NATURE OF PROCEEDING – it is a proceeding to unseat the
Sibugay for the May 10, 2010 elections. Erasmo filed a ineligible person from office, but not to install the protestant
Petition to deny due course to or cancel his CoC before the in his place.
Comelec, claiming that Jalosjos made material
misrepresentations in his CoC when he indicated in it that he WHO CAN FILE – any voter
resided in Ipil, Zamboanga Sibugay. The Second Division of
the Comelec issued a joint reso dismissing the petition of PERIOD TO FILE - within 10 days from proclamation
Erasmo for insufficiency in form and substance. While
Erasmo’s MR was pending before the Comelec En Banc, the In Velasco v. Belmonte Jr. 780 SCRA 81 – In this case ruled on
May 10, 2010 elections took place resulting in Jalosjos whether the special civil action is really one for mandamus
winning the elections and was proclaimed on May 13, 2010. and not a quo warranto case. Court resolved the propriety of
issuing a writ of mandamus to compel Speaker Belmonte Jr.
In June 2, 2010, the CA rendered judgment in the voter’s and the Sec. General to perform the specific acts sought by
exclusion case before it holding that the lower courts erred in Velaso in this petition.
excluding Jalosjos since he was qualified under the
Constitution and RA 8189. Erasmo filed a petition for review In this case, Reyes, the opponent of Velasco, was subject of a
of the CA decision before the SC. On the other hand, Petition under Section 78 for making material representation
Comelec en banc granted the MR of Erasmo and declared in her COC which was declared final by the Comelec (Reyes
Jalosjos ineligible as he did not satisfy the residency failed to raised the Comelec En Banc Resolution within 5 days
requirement since, by continuing to hold the position of from receipt of the ruling). Notwithstanding, the BOC
Mayor in Tampilisan, he should be deemed not to have proclaimed Reyes as the winning candidate for the position of
transferred his residence form that place to Ipil, Zamboanga Rep of the lone District of the Province of Marinduque… the
Sibugay. said proclamation was subsequently declared null and void
and instead after the BOC was ordered reconvened, Velasco
While the Constitution vests in the Comelec the power to was declared winner. In the meantime Reyes already took
decide all questions affecting elections, such power is not her oath and assumed office in the HR.
without limitation. It does not extend to contests relating to
the election, returns, and qualifications of members of the HR Based on these supervening event, Velasco wrote the
and the Senate. The Constitution vests the resolution of Speaker to administer his oath of office and register his name
these contests solely upon the appropriate Electoral Tribunal in the Roll of members of the HR and remove Reyes. First, at
of the Senate or the HR. the time of Reyes proclamation, her COC was already
cancelled by the Comelec en banc (Reyes did not avail the
The Court has already settled the question of when the prescribed remedy ..TRO from the SC..after 5 days Comelec
jurisdiction of the Comelec ends and when that of the HRET Resolution became final and executor).. Second..Cancellation
begins. The proclamation of a congressional candidates of COC was final and executor…Third…proclamation was
following the election divests Comelec of jurisdiction over cancelled and Velasco elected (Reyes did not challenge or
disputes relating to the election, returns and qualifications question the proclamation of Velasco). 4th.. when Reyes took
of the proclaimed Representative in favor of HRET. her oath in open session.. Reyes had no valid COc nor a valid
proclamation and 5th.. Reyes has no legal basis to serve as
member and no legal personality to be recognized as a party-
QUO WARRANTO respondent at a QW proceeding before the HRET. Not
considered a candidate. Earlier case Reyes v. Comelec 708
A petition for Quo Warranto refers to questions of disloyalty SCRA 197.
or ineligibility of the winning candidate. It has the effect of
disqualifying a candidate to hold office to which he is elected. Republic v. dela Rosa 232 SCRA 785, a QW assailing the
public official’s title and seeking to prevent him from holding

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

office for alienage is not covered by the 10-days period for JURISDICTION OVER ELECTION PROTESTS AND QUO
appeal prescribed in Section 253 of the OEC. WARRANTO

The distinction been an EP and QW as a remedy is not the 1) SUPREME COURT – sitting en banc as Presidential
label given to it but the allegations therein stated. If a Electoral Tribunal as sole judge of all contests relating to the
petition alleges fraud and irregularity which vitiated the election, returns and qualification of Pres. and VP. Protest to
conduct of the election, although entitled QW, is an EP and be filed 30 days from proclamation. Not subject to judicial
vice versa. In view of these fundamental differences, an EP review (1987 Constitution). Joke on Supreme Court body.
and QW cannot be availed of jointly in the same proceeding.
They may be filed separately with the second and later case 2) SENATE ELECTORAL TRIBUNAL – for members of senate
suspended until the earlier is resolved. An action for QW as sole judge over all contest relating to the election, returns
cannot be converted into an EP. and qualifications of its own members. Filed within 15 days
from date of proclamation. Not subject to judicial review
except on grave abuse of discretion amounting to lack or
Penera vs. Comelec 599 SCRA 609, is the well-established
excess of jurisdiction. (1987 Constitution)
principle that the ineligibility of a candidate receiving
majority votes does not entitle the candidate receiving the
3) HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL – for
next highest number of votes to be declared elected. In this
members of HR to be filed within 10 days from proclamation.
case, the rules on succession under Section 44 of the Local
Government Code shall apply which states that” if a
Composition - Each electoral tribunal shall be composed of
permanent vacancy occurs in the office of the Mayor, the
nine members, three of whom shall be justices of the SC to be
Vice-Mayor concerned shall become the mayor. A permanent
designated by the CJ and the remaining 6 members of the
vacancy arises when an elective local official fills a higher
senate or HR, as the case may be, who shall be chosen on the
vacant office, refuses to assume office, fails to qualify or is
basis of their proportional representation from the political
removed from office, voluntarily resigned, or is otherwise
parties and the parties or organizations registered under the
permanently incapacitated to discharge the functions of his
party list system,. Senior justice shall be chairman (Art. VI,
office.”
Sec. 17, 1987 Constitution) .
Virgnio Villamor vs. Comelec & Amytis de Dios-Batao 496
4) COMELEC – for regional, provincial and city officials filed in
SCRA 334 - As a general rule, the proper remedy after the
10 days. Subject to judicial review within 30 days from date
proclamation of the winning candidate for the position
of receipt of decision by aggrieved party.
contested would be to file a regular election protest or a
petition for QW. The filing of an EP or a petition for QW
Article IX-C, Section 2(2) 1987 Constitution, Comelec shall
precludes the subsequent filing of a pre-proclamation
“Exercise exclusive jurisdiction over all contests relating to
controversy or amounts to the abandonment of one earlier
the elections, returns and qualifications of all elective,
filed, thus, depriving the Comelec of the authority to inquire
regional, provincial and city officials, and appellate
into and pass upon the title of the protestee or the validity of
jurisdiction over all contests involving municipal officials
his proclamation. The reason is that once the competent
decided by trial courts of general jurisdiction, or involving
tribunal has acquired jurisdiction of an EP or a petition for
elective barangay officials decided by courts of limited
QW, all questions relative thereto will have to be decided in
jurisdictions. Decisions, final order, or rulings of the
the case itself and not in another proceedings. This
Commission, on election contests involving elective municipal
procedure is to prevent confusion and conflict of authority.
and barangay offices shall be final, executory and not
appealable.”
Basarte vs. Comelec 523 SCRA 76 – The prevailing rule that as
long as the returns appear to be authentic and duly
Mendoza v. Comelec 616 SCRA 443 – There is a difference in
accomplished on their face, the BOC cannot look beyond or
the result of the exercise of jurisdiction by the Comelec over
behind them to verify allegations of irregularities in the
election contests. The difference inheres in the kind of
casting or the counting of the votes as it presupposes that the
jurisdiction invoked, which in turn, is determined by the case
returns “appear to be authentic and duly accomplished on
brought before the Comelec. When a decision of a trial court
their face”. This principle does not apply in cases like the one
is brought before the Comelec for it to exercise appellate
at bar where there is a prima facie showing that the return is
jurisdiction, the division decides the appeal but, if there is a
not genuine, several entries having been omitted in the
motion for reconsideration, the appeal proceeds to the banc
assailed return.
where the majority is needed for a decision. If the process
ends without the required majority at the banc, the appealed
decision stands affirmed.

Upon the other hand, and this is what happened in the

instant case, if what is brought before the Comelec is an

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

original protest involving the original jurisdiction of the concurrent jurisdiction to issue writs of certiorari, prohibition
Commission, the protest, as one whole process, is first and mandamus over decision of trial courts of general
decided by the division, which process is continued in the jurisdiction (RTC) in election cases involving elective
banc if there is a motion for reconsideration of the division municipal officials. The Court that takes jurisdiction first shall
ruling. If no majority decision is reached in the en banc, the exercise exclusive jurisdiction over the case. (Art. VIII 5(1)
protest, which is an original, shall be dismissed. There is no 1987 Constitution, Rule 65, Sec. 1)
first instance decision that can be deemed affirmed.
Section 7, Article IX-A and Rule 3 of the Comelec Rules of
Hence, if no decision is reached after the case is reheard,
Procedure. The Comelec in the exercise of its QJ functions to
there are two different remedies available to the Comelec, to
transact business “may sit en banc or in two divisions, and
wit (1) dismiss the action or proceeding, if the case was
shall promulgate rules and procedures” in order to expedite
originally commenced in the Comelec; or (2) consider as
the disposition of elections cases, including pre-proclamation
affirmed the judgment or order appealed from, in appealed
controversies and summon parties to a controversy pending
cases. This rule adheres to the constitutional provision that
before it.”
the Comelec must decide by a majority of all its members.
The authority to hear and decide election cases, including
Maliksi v. Comelec and Saquilayan (March 12, 2013) – The pre-proclamations controversies is vested with a division and
st
petitioner assailed the use by the Comelec 1 Division of the the Comelec sitting en banc does not have the authority over
ballot images in the CF cards. He alleged that the best and it in the first instance. The Comelec en banc can exercise
most conclusive evidence are the physical ballots themselves, jurisdiction only on Motions for Reconsideration of the
and when they cannot be produced or when they are not resolution or decision of the Comelec in division as a
available, the election returns would be the best evidence of requirement for the filing of a petition for certiorari by the
the votes cast. The Supreme Court ruled that the ballot aggrieved party with the SC within 30 days from receipt of a
images in the CF cards, as well as the printouts of such copy thereof (Sec. 3 Art. IX-C).
images, are the functional equivalent of the official physical
ballots filled up by the voters, and may be used in an EP. Sec. 2 Rule 19 of the Comelec Rules of Procedure a motion
to reconsider a decision, resolution, order or ruling of a
In the succeeding Maliksi v. Comelec 11 April 2013, where Division shall be filed within five (5) days from the
the SC granted the Extremely Urgent Motion For promulgation thereof. Such motion, if not pro-forma,
Reconsideration against the March 2013 Decision, it was suspends the execution for implementation of the decision,
explained – “That the 2 documents – the official ballot and its resolution, order or ruling and would in effect, suspend the
picture image- are considered “original documents” simply running of the period to elevate the matter to the SC (Sec.4).
means that both of them are given equal probative weight. In
short, when either is presented as evidence, one is not 5) REGIONAL TRIAL COURT – exclusive jurisdiction over all
considered weightier than the other. contests relating to the election, qualifications and returns for
municipal officials. Protest to be filed 10 days from date of
But this judicial reality does not authorize the courts, the proclamation. Subject to appeal with Comelec within five (5)
Comelec and Electoral Tribunals to quickly and unilaterally days from receipt of decision. Decisions of the Comeledc en
resort to the printouts of the picture images of the ballots in banc on contest on appeal involving municipal and barangay
the proceedings before them without notice to the parties. officials are final and executory except on grounds of grave
Despite the equal probative weight accorded the official abuse of discretion within 30 days.
ballots and the printouts of the picture images, the rules for
the revision of ballots adopted for their respective 6) MUNICIPAL TRIAL COURT – exclusive jurisdiction over all
proceedings still consider the official ballots to be the primary contests relating to the election, returns and qualifications for
or best evidence for the voter’s will. In that regard, the barangay officials. Protest to be filed within 10 days from
picture images of the ballots are to be use only when it is first proclamation. Appeal to the Comelec within 5 days from
shown that the official ballots are lost or their integrity has receipt of the decision.
become compromised. (Same ruling in Vinzons Chaot v. HRET
& Panotes January 23, 2013). Calo v. Comelec 610 SCRA 342/Pecson v. Comelec 575 SCRA
634 – decisions of the courts in election protest cases,
Relampagos v. Cumba 243 SCRA 690 (1995) and in Carlos v. resulting as they do from a judicial evaluation of the ballots
Angeles 346 SCRA 571 (2000), Comelec is vested with the and a full blown adversarial proceedings, should at least be
power to issue writs of certiorari, prohibition and mandamus given similar worth and recognition as decisions of the board
only in aid of its appellate jurisdiction consistent with Section of canvassers. This is especially true when attended by other
50 of BP 881 and Article 2(1) of the Constitution. These ruling equally weighty circumstances of the case, such as the
abandoned the earlier ruling in Garcia vs. de Jesus 206 SCRA shortness of the term of the contested elective office, of the
779. It was also declared that both the SC and Comelec has case.

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

Mananzala vs. Comelec and Julie Monton 523 SCRA 31. - The SC further enumerated cases where a motion for
Decisions, final orders or rulings of the Commission on reconsideration was held to be pro forma:
Election contests involving elective municipal and barangay
offices shall be final, executory and not appealable; All such  it was a second motion for reconsideration;
election cases shall be heard and decided in division,  it did not comply with the rule that the motion must
provided that motions for reconsideration of decisions shall specify the findings and conclusions alleged to be
be decided by the Commission en banc. contrary to law or not supported by the evidence;
 it failed to substantiate the alleged errors;
A decision of the RTC was raised on appeal which was heard  it merely alleged that the decision in question was
nd
by the 2 division which reversed the decision of the RTC. In contrary to law
his MR petitioner argues that the MR filed with the former 2nd  or the adverse party was not given due notice
division “has thrown the whole case wide open for review as thereof.
in a trial de novo in a criminal case” yet Comelec en banc
failed to conduct a thorough review of the contested ballots. Under Rule 13, (1) of the Comelec Rules of Procedure, a
Election cases cannot be treated in a similar manner as Motion for Reconsideration of an En Banc Resolution is a
criminal cases where, upon appeal from a conviction by the prohibited pleading, except in election offense cases (Sec.
trial court, the whole case is thrown open for review and the 261 of the OEC).
appellate court can resolve issues which are not even set
forth in the pleadings. Angelia v. Comelec 332 SCRA 757, the SC addressed the issue
on whether a party can go to the SC via a Petition on
Coquilla vs. Comelec, et. al. G.R. No. 151914, July 31, 2002, Certiorari under Rule 65 of the Rules of Court during the
the SC resolved the issue on whether the 30-day period for pendency of the MR filed with the Comelec en banc. Angelia
appealing the resolution of the Comelec was suspended by filed before the SC a Petition for Certiorari to set aside the
the filing of a motion for reconsideration by petitioner. resolution of the Comelec en banc annulling his proclamation
Private respondent in this case contends that the petition alleging that he was not given due notice and hearing.
should be dismissed because it was filed late considering that
the Comelec en banc denied petitioner’s motion for Without waiting for the resolution on his motion, Angelia
reconsideration for being pro-forma and conformably with filed the instant petition on the sole assignment of error that
Sec. 4 of Rule 19 of the CRP, the said motion did not suspend Comelec violated his constitutional right to due process.
the running of the 30-day period for the filing of the petition Comelec raised that the petition should be dismissed for
for certiorari under Sec. 7 Art. IX-A of the Constitution. being premature considering that the MR of petitioner was
still pending with the Comelec en banc and that he should
The Comelec en banc ruled that the motion for have first withdrawn the MR before raising the said
reconsideration was pro-forma on the ground that the resolution with the SC.
motion was a mere rehash of petitioners averments
contained in his Verified Answer and Memorandum, neither SC held that petitioner acted correctly in filing the petition
were new matters raised that would sufficiently warrant a because the resolution of the Comelec en banc is not subject
reversal of the assailed resolution of the Second Division. to reconsideration, and therefore, any party who disagrees
with it had only one recourse, that was to file a petition for
The SC ruled however that the mere reiteration in a motion certiorari under Rule 65 of the Rules of Civil Procedure. The
for reconsideration of the issues raised by the parties and filing of the petition would in effect constitute as an
passed upon by the court does not make a motion pro-forma; abandonment of his MR with the Comelec.
otherwise, the movant’s remedy would not be a
reconsideration of the decision but a new trial or some What is contemplated by the term “final orders, rulings and
other remedy. decisions of the Comelec that may be reviewable by the SC
In explaining the purpose/objective of a motion for on Certiorari? The SC in Garces v. Court of Appeals 259 SCRA
reconsideration , the SC referred to its decision in Guerra 99 (1996) and Filipinas Engineering & Machine Shop v. Ferrer
Enterprises Company Inc., v. CFI of Lanao del Sur 32 SCRA 314 135 SCRA 25 (1985), the interpreted the term ”final orders,
(1970), where it held that the ends sought to be achieved in rulings and decisions of the Comelec reviewable by the SC on
the filing of a motion for reconsideration is “precisely to certiorari as provided by law are those rendered in actions or
convince the court that its ruling is erroneous and improper, proceedings before the Comelec and taken cognizance of by
contrary to the law or the evidence, and in doing so, the the said body in the exercise of its quasi-judicial powers.
movant has to dwell of necessity upon the issues passed
upon by the court. If a motion for reconsideration may not
discuss these issues, the consequence would be that after a PRINCIPLES COMMON TO ALL ELECTION CONTESTS
decision is rendered, the losing party would be confined to
filing only motions for reopening and new trial. How Election protests are initiated heard and finally
resolved – in order to confer jurisdiction on the tribunals,

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

Comelec and the Courts, an EP of officer-elect, it is necessary also appealed the RTC decision to the Comelec. Out of the 3K
to allege in the petition the following facts: appeal fee required under Sec. 3, Rule 40 of the Comelec
Rules of Procedure, petitioner only paid 1K plus 200 to cover
1) that the protestant is a candidate voted for in said the legal research/bailiff fees.
election and has presented a certificate of candidacy
2) That the protestee has been proclaimed in said On March 17, 2008 Comelec 1st division issued on Order
election; and dismissing the appeal on the ground that petitioner failed to
3) That the date when the proclamation of the result of pay the correct appeal fee within the 5-days reglementary
the election was made so that it may be seen that period which is a ground for the dismissal of the appeal under
the protest was filed within the term fixed by law. Section 9(a), Rule 22 of the CRP. On March 28, 2008
petitioner filed a MR with the Comelec En Banc which denied
WHO MAY FILE – a candidate who has duly filed a COC and the resolution declaring that the appeal was not perfected on
has been voted for. time for non-payment of the complete amount of appeal and
for late payment as well, hence, did not acquire jurisdiction
4) Jurisdiction Allegations – (1) protestant was a over the appeal.
candidate who had duly filed a COC and had been
voted for the same office (2) that the protestee has Before the SC is a petition for Certiorari raising that 1)
been proclaimed (3) that the petition was filed Comelec committed grave abuse of discretion amounting to
within 10 days after proclamation (4) that fraud and lack or excess of jurisdiction in holding that the correct appeal
election irregularities vitiated the conduct of the fee was not paid on time; 2) In failing to consider, that
elections and affected the legality thereof. assuming that the correct appeal fee was not paid on time,
the alleged non-payment is not in anyway attributable to
Miguel v. Comelec 335 SCRA 172, the SC ruled that it is the petitioner; 3) that assuming the correct appeal fee was not
ministerial duty of the trial court to order the opening of the paid on time, there are highly justifiable and compelling
ballot boxes, examination and counting of ballots deposited reasons to resolve the subject case on the merit in the
thereunder whenever there is averment in an election interest of justice and public interest.
protest that requires the examination, scrutiny or counting of
ballots as evidence. The purpose of opening the BB is to The SC noted that two (2) different tribunals earlier require
determine, with the minimum amount of protracted delay, the payment of two different appeal fees for the perfection
the truthfulness of the allegations of fraud and anomalies in of the appeals of election cases.
the conduct of electoral exercise.
Sec. 3, Rule 22 of the CRP ( Appeals form decisions of Courts
in election Protest Cases), mandates that the notice of
CERTIFICATE OF FORUM SHOPPING appeal must be filed with 5-days after the promulgation of
the decision. On the other hand, Section 3 & 4 Rule 40 of the
The SC in Loyola v. CA 245 SCRA 477 (1995) and Lomarong v. CRP amended the amount of the appeal fees to 3.2K which
Dubguban 269 SCRA 624 (1997), it was ruled that the SC should be paid with the cash division of the Comelec.
Circular requiring that any complaint, petition or other
initiatory pleading must contain a non-forum certification On the other hand, Section 8 & 9, Rule 14 of A.M. No. 07-4-
applies to election cases. The requirement is mandatory, not 15 SC (Rules of procedure in Election Contests before the
jurisdictional, non-compliance therewith may warrant the Court Involving Elective Municipal and Barangay Officials
dismissal of the election case. effective May 15, 2007) also provide the procedure of
instituting an appeal and the required appeal fees to be paid
for the appeal to be given due course.
PAYMENT OF APPEAL/FILING FEES
This requirement in the payment of appeal fees had caused
Pacanan, Jr. vs. Commission on Elections, 597 SCRA 189
much confusion, which the Comelec addressed through the
Aguilar v. Comelec 591 SCRA 491 - Petitioner Pacanan, Jr. and
issuance of Comelec Res. No. 8486 on July 15, 2008. The
private respondent Langi Sr., were candidates for mayor in
salient feature of the said resolution provide that “the
the municipality of Motiong, Samar during the May 14, 2007
appeal to the Comelec of the trial court’s decision in
elections. Petitioner was proclaimed having garnered a total
election contests involving municipal and barangay officials
of 3,069 votes against private respondent’s 3,066 votes.
is perfected upon the filing of the notice of appeal and
payment of the 1K appeal fee to the court that rendered the
On May 25, 2007, private respondent filed an election protest
decision within the 5-day reglementary period. The non-
with the RTC which rendered a Decision on January 7, 2008
payment or the insufficient payment of the addition appeal
RTC declaring private respondent as winner with a plurality of
fee of 3.2K to the Comelec Cash Division in accordance with
6 votes. 3 days after or on January 10, 2008 petitioner filed a
Rule 40, Section 3 of the CRP, as amended, does not affect
notice of appeal and paid 3K appeal fee before the RTC and

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

the perfection of the appeal and does not result in outright Miranda v. Castillo 274 SCRA 503, Soller v. Comelec 339 SCRA
or ipso facto dismissal of the appeal. 684 hold that a court acquires jurisdiction over any case only
upon the payment of the prescribed docket fees and errors in
Comelec 1st division gravely abused its discretion in issuing the payment of the filing fee is no longer allowed.
the order dismissing the appeal taking notice that the notice
of appeal and the 1K appeal fee were, respectively filed and
paid with the MTC on April 21, 2008 which date the appeal EXECUTIONS PENDING APPEAL
was perfected. Comelec Res. 8486 clarifying the rule on the
payment of appeal fees was issued only on July 15, 2008, or
Teodora Sobejana-Condon v. Comelec & Luis Bautista;
almost 3-months after the appeal was perfected. Yet on July
Robelito v. Picar & Wilma P. Pagaduan 678 SCRA 267 (2012)
31, 2008 or barely two weeks after the issuance of Comelec
Res. 8486, the Comelec 1st division dismissed the appeal for
Executions Pending Appeal - There is no reason to dispute
non-payment of the 3.2K appeal fee.
the Comelec’s authority to order discretionary execution of
judgment in view of the fact that the suppletory application
Considering that petitioner filed his appeal months before
of the Rules of Court is expressly sanctioned by Section 1,
the clarificatory resolution on appeal fees, the appeal
Rule 41 of the Comelec Rules of Procedure. Under Section 2,
should not be unjustly prejudiced by Comelec Res. No. 8486.
Rule 39 of the Rules of Court, execution pending appeal may
Fairness and prudence dictate the 1st division should have
be issued by an appellate court after the trial court has lost
first directed petitioner to pay the additional appeal fee in
jurisdiction.
accordance with the clarificatory resolution. Instead it hastily
dismissed the appeal on the strength of the clarificatory
In Batul v. Bayron 424 SCRA 26 (2004), the Court stressed the
resolution which had taken effect only a few days earlier.
import of the provision vis-à-vis election cases when we held
(This unseemly haste is an invitation to outrage.) Court
that judgments in election cases which may be executed
further stressed the liberal construction policy.
pending appeal includes those decided by trial courts and
those rendered by the Comelec whether in the exercise of its
Villagracia v. Comelec 513 SCRA 655 (2007), while it is true
original or appellate jurisdiction.
that a court acquires jurisdiction over a case upon complete
payment of the prescribed filing fee, the rule admits of
Saludaga vs. Comelec 617 SCRA 601 – The discretion to allow
exceptions, as when a party never raised the issue of
execution pending reconsideration belongs to the division
jurisdiction in the trial court.
that rendered the assailed decision, order or resolution, or
the Comelec en banc, as the case may be – not to the
Gomez-Castillo v. Comelec 621 SCRA 499 – The period of
presiding Commissioner. A writ of execution pending
appeal and the perfection of appeal are not mere
resolution of the MR of a decision of the division is not
technicalities to be so lightly regarded, for they are essential
granted as a matter of right such that its issuance becomes a
to the finality of judgments, a notion underlying the stability
ministerial duty that may be dispensed even just by the
of our judicial system. The short period of 5-days as the
Presiding Commission.
period to appeal recognizes the essentiality of time in
election protests, in order that the will of the electorate is
Calo v. Comelec 610 SCRA 342 – The relevant rule provides
ascertained as soon as possible so that the winning candidate
that a motion for execution pending appeal filed by the
is not deprived of the right to assume office, and so that any
prevailing party shall contain a 3-day notice to the adverse
doubt that can cloud the incumbent of the truly deserving
party and execution pending appeal shall not issue without
winning candidate is quickly removed.
prior notice and hearing. The purpose of these requirements
is to avoid surprises that may sprung upon the adverse party
Zanoras v. Comelec G.R. No. 158610 November 12, 2004,
who must be given time to study and meet the arguments in
the mere filing of the notice of appeal was not enough. It
the motion before a resolution by the court. Where a party
should be accompanied by the payment of the correct
had the opportunity to be heard, then the purpose has been
amount of appeal fee. The payment of the full amount of the
served and the requirement substantially complied with. In
docket fee is an indispensable step for the perfection of an
this case, even the Comelec admitted that respondent was
appeal. (Rulloda v. Comelec 245 SCRA 702)
heard and afforded his day in court; hence, it should not have
annulled the RTC special order on said ground.
Loyola v. Comelec 337 SCRA 134 (1997), the Court stressed
that there is no longer any excuse for shortcoming in the
San Miguel vs. Comelec 609 SCRA 424 – The law provides
payment of filing fees. The Court held that in the case at bar
that the court “may” issue execution pending appeal. Evident
“any claim of good faith, excusable negligence or mistake in
from the usage of the word “may”, the language of the
any failure to pay the full amount of filing fees in election
subject provision denotes that it is merely directory, not
cases which may be filed after the promulgation of this
mandatory, for the trial court to issue the special order
decision is no longer acceptable (March 25, 1977). The
before the expiration of the period to appeal. The trial court
Loyola doctrine was reiterated in the subsequent cases of

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

may still thereafter resolve a motion for execution pending finding that Esto won in the said election. In the same order
appeal, provided: (i) the motion is filed within the 5-day the judge allowed protestee Navaroza to stay the execution
reglementary period; and (ii) the special order is issued prior of the decision pending appeal by filing a supersedeas bond
to the transmittal of the records of the Comelec. in double the amount posted by the protestant.. A Petition
for Ceriorari was filed by Esto with the Comelec where the
Malaluan v. Comelec 254 SCRA 397, this was the first case Comelec 2nd division affirmed the trial court’s order granting
where a judge, acting without a precedent, granted the execution pending appeal and nullified the stay of the
motion for execution of its decision in an election protest execution. The Comelec did not gravely abuse its discretion
case, pending appeal. It was ruled that Sec. 2 Rule 39 of the as it is for Comelec in the exercise of its appellate jurisdiction
Rules of Court which allowed the RTC to order execution to issue the extraordinary writs of certiorari, prohibition
pending appeal upon good reasons stated in a special order, mandamus and injunction over all contest involving elective
may be made to apply by analogy or suppletorily to election municipal officials decided by the trial court of general
contest decided by it. The posting of the supersedeas bond jurisdiction elevate on appeal, and NOT the trial court, that
was considered good reasons by the judge. may order the stay or restrain the immediate execution of
the decision pending appeal granted by the trail court of
Camlian v. Comelec 271 SCRA, executions pending appeal general jurisdiction in an election contest.
must be strictly construed against the movant as it is an
exception to the general rule on execution of judgments. Except when the trial court reversed itself in a MR of its order
granting immediate execution, it cannot later on stay or
Ramas v. Comelec 286 SCRA 189, what may constitute “good restrain the execution thereof in the guise of allowing the
reasons’ for execution pending appeal losing party to file a supersedeas bond. The issue before the
trial court where a motion for execution pending appeal is
 The public interest involved or the will of the filed is to determine whether or not there are “good reasons”
electorate to justify the immediate execution pending appeal. The issue
 The shortness of the remaining period of the term is not whether there are good reasons to stay the immediate
of the contested office execution of the decision pending appeal.
 The length of time that the election contest has
been pending. Lim vs. Comelec et. Al. G.R. No. 171952 March 08, 2007;
Torres vs. Abundo, Sr. 512 SCRA 556; - Before granting a
The filing of a bond alone does not constitute good reasons. motion for execution pending appeal in election cases, the SC
Nevertheless, the trial court may require the filing of a bond laid down the following requisites –
as condition for the issuance of the corresponding writ of
execution to answer for the payment of damages which the (1) there must be motion by the prevailing party with
aggrieved party may suffer by reason of the execution notice to the adverse party
pending appeal. (2) there must be good reasons for the execution
pending appeal
Fernando U. Batul v. Lucilo Bayron, et. al. 424 SCRA 26, (3) the order granting execution pending appeal must
execution pending appeal in the discretion of the courts state the good reasons.
applies suppletorily in election cases including those involving
city and provincial officials to obviate a hollow victory for the Good reasons (Fermo v. Comelec)
duly elected candidate as determined either by the Court or 1) public interest involved or will of the electorate
by Comelec. The Comelec resolution granting execution 2) shortness of the remaining term of the contested
pending appeal (by virtue of its original exclusive jurisdiction office
over all contest relating to the E, R and Q of provincial and 3) length of time that the election contest has been
city officials) was raised before the SC arguing that Sec. 2 Rule pending
39 cannot be applied and the only ground that will validly
sustain execution of a decision by a Comelec division pending Istarul vs. Comelec 491 SCRA 300 (2006) – the length of time
reconsideration is when the MR is not pro forma. that the election protest has been pending, thus, leaving
petitioner only 21 months as the remaining portion of the
Case of Ramas did not declare that such remedy is exclusive term to serve as mayor, does not constitute “good reasons”
only to election contests involving elective municipal and to justify execution pending appeal. Referring to Fermo, the
barangay officials. Sec. 1 of Rule 41 of the Comelec Rules of SC held that “shortness of term”: alone and by itself cannot
Procedure expressly provides that pertinent provisions of the justify premature execution. It must be manifest in the
Rules of Court shall be applicable by analogy or in a decision sought to be executed that the defeat of the
suppletory character. protestee and the victory of the protestant has been clearly
established.”
Navarosa v. Comelec 411 SCRA, the RTC in an election
protest case granted execution pending appeal by Esto after

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

Trillanes IV. vs. Pimentel, Sr. 556 SCRA 471 (relate to Rodolfo Death of Protestant – he should be substituted by the public
Aguinaldo on the condonation issue) – The case against official who would have succeeded him (De Castro v.
Trillanes is not administrative in nature. And there is no Comelec.
“prior term’ to speak of. In a plethora of cases, the Court
categorically held that the doctrine of condonation does not Fernando Poe v. Arroyo March 29, 2005, the Court resolved
apply to criminal cases. Election, or more precisely, election the issue on whether the widow may substitute/intervene for
to office, does not obliterate a criminal charge. Petitioners the protestant who die during the pendency of the latter’s
electoral victory only signifies pertinently that when the protest case.
voters elected him to the Senate, “they did so with full
awareness of the limitations on his freedom of action and The fundamental rule applicable in a presidential election
with the knowledge that he could achieve only such protest is Rule 14 of the PET Rules which provides “only the
legislative results which he could accomplish within the registered candidate for Pres. or VP of the Philippines who
confines of prison. received the 2nd and 3rd highest number of votes may contest
the election of the P and VP, as the case may be, by filing a
verified petition with the Clerk of the PET within 30 days after
CAN DAMAGES BE AWARDED IN ELECTION PROTEST CASES? the proclamation of the winner.

Malaluan vs. Comelec, the Court ruled that damages cannot The Court made reference in its ruling in Vda de Mesa v.
be granted in an election protest case ratiocinating that the Mencias where it rejected substitution by the widow or the
provision of law allowing damages under specific heirs in election contest where the protestant dies during the
circumstances, more particularly compensatory and actual pendency of the protest on the grounds that the heirs are not
damages is provided under Article 2176 of the Civil Code real parties in interest and that a public office is personal to
which is appropriate only in breaches of obligations in the public officer and not a property transmissible to the
contracts and QC and on the occasion of crimes and QD heirs upon death.
where the defendant may be held liable for damages the
proximate cause of which is the act or omission complained The Court pursuant to Rule 3, Section 15 of the rules of Court,
of. however, allowed substitution and intervention upon the
death of the protestee but by a real party in interest, one
Therefore, the monetary claim of a party in an election case who would be benefited or injured by the judgment and
must necessarily be anchored in contract, QC, or a tortiuos entitled to avail of the suit. In the Mencias and Lumogdnag v.
act or omission of a crime in order to effectively recover Javier cases, the Court permitted substitution by the VM
actual or compensatory damages. In the absence of any or all since the VM is the real party in interest considering that if
of these, the claimant must be able to point out a specific the protest succeeds and the protestee is unseated, the VM
provision of law authorizing a money claim for election succeeds to the office of the mayor that becomes vacant if
protest expenses against the losing party. the one duly elected cannot assume office.

The bonds or cash deposits required by the Comelec Rules of The Court further held that nobility of intentions is not the
Procedure are in the nature of filing fees not damages. point in reference in determining whether a person may
intervene in an election protest case.

SUBSTITUTION OF PARTIES IN AN ELECTION PROTEST CASE

PROSECUTION OF ELECTION CASES
Public office is personal to the public officer and is not a
property transmissible to his heirs upon death. Thus applying
Article IX-C Section 2(6) of the Constitution vests in the
the doctrine of action personalis moritur cum persona, upon
Comelec the power and function to investigate and where
the death of the incumbent, no heir of his may be allowed to
appropriate, prosecute cases of violations of election laws,
continue holding his office in his place.
including acts or omissions constituting election frauds,
offenses and malpractices. This prosecutorial power of the
But while the right to a public office is personal and exclusive
Comelec is reflected in Section 265 of BP 881. It is well
to the public officer, an election protest is not purely personal
settled that the finding of probable cause in the prosecution
and exclusive to the protestant or to the protestee such that
of election offenses rests in the Comelec’s sound discretion.
the death of either would oust the court for all authority to
(Garcia v. Comelec 611 SCRA 55 Jan. 2010)
continue the protest proceedings.
Section 268 of the OEC provides that the Regional Trial Court
Death of the Protestee – He should be substituted by his
shall have exclusive jurisdiction to try and decide any criminal
successor to the public office (the public officer nest lower in
action or proceedings for violation of the OEC, except those
rank) (De la Victoria v. Comelec 1991)

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

relating to the offense of failure to register or failure to vote

which shall be under the jurisdiction of the MeTC or MTC. Regalado v. CA G.R. No. 115962 15 February 2000 – The two
elements of the offense prescribed under Section 262(h) are:
In Arroyo v. Department of Justice 701 SCRA 753 – The Court (1) a public officer or employee is transferred or detailed
was again confronted with the issue of whether the Comelec within the election period as fixed by the Comelec, and (2)
has the exclusive power to investigate and prosecute cases of the transfer or detail was effected without prior approval of
violations of election laws. In Banat Party-List v. Comelec, 599 the Comelec in accordance with its implementing rules and
SCRA 477 (2009), the constitutionality of Section 43 of RA regulations. The fact that the transfer of an employee was
9369 had already been raised by petitioners therein and needed is not an excuse for failure to obtain approval from
addressed by the Court. While recognizing the Comelec’s the Comelec. However, if the transfer was made prior to the
exclusive power to investigate and prosecute cases under BP publication of the implementing rules and regulations, it is
881, the Court pointed out that the framers of the 1987 not an election offense because the said rules were not yet
Constitution did not have such intention. This exclusivity existent. (People v. Reyes, 14 August 1995)
(Section 265 of BP 881) is thus a legislative enactment that
can very well be amended by Section 43 of RA 6369. Electoral Sabotage (Section 27(b) of RA 6646 as amended) –
Therefore, under the present law, the Comelec and other In addition to the prohibited acts and election enumerated in
prosecuting arms of the government, such as the DOJ, now Section 262 and 262 of OEC, as amended, the following shall
exercises concurrent jurisdiction in the investigation and be guilty of an election offense or a special election offense
prosecution of election offenses. (No longer deputies but to be known as electoral sabotage: (b) Any person or member
exercises concurrent jurisdiction Comelec-DOJ Task Force). of the BEI or BOC who tampers, increases or decreases the
votes received by a candidate in any election or any member
Notwithstanding the grant of concurrent jurisdiction, the of the Board who refuses after proper verification and
Comelec and the DOJ nevertheless included a provision in the hearing to credit the correct votes or deduct such tampered
assailed Joint Order whereby the resolutions of the Joing votes; Provided however, that when the tampering, increase
Commettee finding probable cause for election offenses shall or decrease of votes or refusal to credit the correct votes
still be approved by the Comelec in accordance with the CRP. and/or deduct tampered votes are perpetrated on large
With more reason, therefore, that we cannot consider the scale or in substantial numbers, the same shall be
creation of the Joint Committee as an abdication of the considered not as an ordinary election offense under
Comelec’s independence enshrined in the 1987 Constitution. Section 261 of the OEC, but a special election offense to be
known as electoral sabotage and the penalty to be imposed
The procedure in conducting PI is governed by Rule 112 of the shall be life imprisonment.
Revised Rules on Criminal Procedure and Rule 34 of the
Comelec Rules of Procedure. Under both Rules, the Electoral Cheating – There are 3 main types of electoral
respondent shall submit his counter-affidavit and that of his cheating:
witnesses and other supporting documents relied upon for
his defense, within 10 days from receipt of the subpoena, (1) Pre-election: preventing qualified voters from registering;
with the complaint and supporting affidavits and documents. (2) Election Day: preventing registered voters from casting
their vote freely, or influencing the BEI to cheat;
Also in both Rules, respondent is given the right to examine (3) Post Election: altering the results of the elections by
evidence, but such right of examination is limited only to the making it appear that the losing candidate won.
documents or evidence submitted by complainants which she
may not have been furnished and to copy them at her Disputable presumption of conspiracy (a) to bribe voters and
expense. of the involvement of a candidate and (b) of his principal
campaign managers in such conspiracy: BQ 1991
Lozano v. Comelec G.R. No. 94521, 28 October 1991 Vote-
Buying – The Court ruled that the traditional gift giving by the (a) Under Section 28 of RA 6646, proof that at least one
City of Makati during Christmas does not constitute vote- voter in different precincts representing at least
buying. The Court held that it requires more than a mere 20% of the total precincts in any municipality, city or
tenuous deduction to prove the offense of vote-buying. province has been offered, promised or given
money, valuable consideration or other expenditure
Ong v. Martinez G.R. 87743, 21 August 1990 – Prohibition by a candidate’s relatives, leaders and/or
against appointment of a government employee within 45 sympathizers for the purpose of promoting the
days before a regular election refers to positions covered by election of such candidate, give rise to a disputable
civil service and does not apply to the replacement of a presumption of conspiracy to bribe voters.
councilor who died. The permanent vacancy for councilor (b) Under Section 28, if the proof affects at least 20% of
exists and its filling up is governed by the Local Government the precincts of the municipality, city or province to
Code while the appointment referred to in the election ban which the public office aspired for by the favored
provision is covered by the Civil Service Law. candidate relates, this shall constitute a disputable

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

presumption of the involvement of such candidate Herman Tiu Laurel vs. RTC Judge of Manila Br. 10 and
and of his principal campaign managers in each of Comelec, the SC upheld the power of Comelec to prosecute
the municipalities concerned, in the conspiracy. cases of violations of election laws and further explained that
there are two (2) ways through which a complaint for
Comelec v. Noynay, July 9, 1998, the Comelec resolved to file election offenses may be initiated.
an Information for violation of Section 261(i) of the OEC
against certain public school officials for having engaged in (1) it may be filed by the Comelec motu propio or
partisan political activities which was filed by its Regional (2) it may be filed via written complaint by any
Director with Branch 23 of RTC of Allen Northern Samar citizen of the Philippines, candidate, registered
presided by Judge Tomas B. Noynay. The judge ordered the political party, coalition of political parties or
records of the cases to be withdrawn and directed the organizations under the party-list system or any
Comelec to file the cases with the MTC on the ground that accredited citizen arms of the commission.
pursuant to Section 32 of BP 129 as amended by RA 7691, the
RTC has no jurisdiction over the cases since the maximum Motu propio complaints may be signed by the Chairman of
imposable penalty in each of the cases does not exceed 6 the Comelec and need not be verified. But those complaints
years imprisonment. filed by parties other than the Comelec must be verified and
supported by affidavits and other evidence.
The SC ruled that RA 7691 did not divest the RTC of
jurisdiction over election offenses which are punishable with The complaint shall be filed with the Comelec Law
imprisonment of not exceeding 6 years. The opening Department or with the offices of the EO, PES or RED, or the
sentence of Section 32, provides that the exclusive original State Prosecutors, provincial or city prosecutors. Whether
jurisdiction of Metropolitan Trial Courts, MTC and MCTC does initiated motu propio or filed with the Comelec by any party,
not cover those criminal cases which by specific provisions of the complaint shall be referred to the Comelec Law
law fall within the exclusive jurisdiction of the RTC and of the Department for investigation. Upon the direction of the
SB, regardless of the penalty prescribed therefore. Chairman, the PI may be delegated to any lawyer of the
Department, any RED or PES, or any Comelec lawyer.
Garcia v. Commission on Elections 611 SCRA 55 – Generally,
the Court will not interfere with the finding of probable cause Dino vs. Olivares 607 SCRA 251 (2009), The SC held that
by the Comelec absent a clear showing of grave abuse of being mere deputies or agents of the Comelec (with
discretion. continuing authority), provincial or city prosecutors deputized
by it are expected to act in accord with and NOT contrary to
Faelnar v. People 331 SCRA 429, (a) where the State or in derogation of its resolutions, directives or orders in
Prosecutor, or Provincial or City Prosecutor exercises the relation to election cases that such prosecutors are deputized
power to conduct preliminary investigation of election to investigate and prosecute. They must proceed within the
offense cases and after the investigation submits its lawful scope of their delegated authority.
recommendation to the Comelec, the issue of probable cause
is already resolved. The proper remedy to question the said Such authority may be revoked or withdrawn anytime by the
resolution is to file an appeal with the COMELEC and the Comelec, either expressly or impliedly, when in its judgment
ruling of the Comelec on the appeal would be immediately such revocation or withdrawal is necessary to protect the
final and executory. integrity of the process to promote the common good, or
where it believes that successful prosecution of the case can
(b) If the preliminary investigation of the complaint for an be done by the Comelec.
election offence is conducted by the Comelec, the
investigation officer prepares its recommendation to the Law When the Comelec en banc directed the City Prosecutor of
Department which department in turn makes its Paranaque to transmit the entire records of the election
recommendation to the Comelec en banc on whether there is offense case, it had the effect of SUSPENDING THE
probable cause to prosecute. It is the Comelec en banc AUTHORITY of the City Prosecutor. Hence, the filing of the
which determines the existence of probable cause. amended information and the amended information
themselves, is declared void and of no effect.
The proper remedy of the aggrieved party is to file a Motion
for Reconsideration of such resolution. This effectively allows Kilosbayan vs. Comelec 280 SCRA 892, Kilosbayan filed a
for a review of the original resolution, in the same manner letter-complaint with the Comelec against incumbent officials
that the Comelec on appeal, or motu propio, may review the running for public elective office for violation of Sec. 261 of
resolution of the State prosecutor, or Provincial or city fiscal. the OEC alleging illegal disbursement of public funds and
(Take note that since this is an election offense a Motion for submitting as evidence to support the complaint, published
Reconsideration of an En Banc resolution is allowed.) writings in newspapers without any additional evidence to
support the newspaper articles on the argument that it was
the Comelec’s constitutional duty to prosecute election

EDITED BY HISHAM NAZZ A. BIRUAR

ELECTION LAWS From the 2017 notes of atty. VALENCIA

offenses upon any information of alleged commission of

election offenses. The Comelec dismissed the complaint there
being on probable cause found.

The SC ruled that it is not the duty of the Comelec to search

for evidence to prove an election complaint filed before it.
The task of Comelec as investigator and prosecutor is not
the physical searching and gathering of proof in support of
the alleged commission of an election offense. The
complainant still has the burden to prove his complaint.

EDITED BY HISHAM NAZZ A. BIRUAR