ELECTION LAW

ARTICLE 5
Suffrage
SECTION 1. Suffrage may be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen years of age, and who shall have resided in
the Philippines for at least one year and in the place wherein they propose to vote for at
least six months immediately preceding the election. No literacy, property, or other
substantive requirement shall be imposed on the exercise of suffrage.
SECTION 2. The Congress shall provide a system for securing the secrecy and sanctity
of the ballot as well as a system for absentee voting by qualified Filipinos abroad.
The Congress shall also design a procedure for the disabled and the illiterates to vote
without the assistance of other persons. Until then, they shall be allowed to vote under
existing laws and such rules as the Commission on Elections may promulgate to protect
the secrecy of the ballot.

Qualification and disqualification of voters

Sec. 117. Qualifications of a voter. - Every citizen of the Philippines, not otherwise
disqualified by law, eighteen years of age or over, who shall have resided in the
Philippines for one year and in the city or municipality wherein he proposes to vote for at
least six months immediately preceding the election, may be registered as a voter.
Any person who transfers residence to another city, municipality or country solely by
reason of his occupation; profession; employment in private or public service; educational
activities; work in military or naval reservations; service in the army, navy or air force; the
constabulary or national police force; or confinement or detention in government
institutions in accordance with law, shall be deemed not to have lost his original residence.
Sec. 118. Disqualifications. - The following shall be disqualified from voting:
Any person who has been sentenced by final judgment to suffer imprisonment for not less
than one year, such disability not having been removed by plenary pardon or granted
amnesty: Provided, however, That any person disqualified to vote under this paragraph
shall automatically reacquire the right to vote upon expiration of five years after service
of sentence.
Any person who has been adjudged by final judgment by competent court or tribunal of
having committed any crime involving disloyalty to the duly constituted government such
as rebellion, sedition, violation of the anti-subversion and firearms laws, or any crime
against national security, unless restored to his full civil and political rights in accordance
with law: Provided, That he shall regain his right to vote automatically upon expiration of
five years after service of sentence.
Insane or incompetent persons as declared by competent authority.

"A", while of legal age and of sound mind, is illiterate. He has asked your advice on how
he can vote in the coming election for his brother, who is running for mayor. This will be
the first time "A" will vote and he has never registered as a voter before. What advice will
you give him on the procedure he needs to follow in order to be able to vote?
The Constitution provides that until Congress shall have provided otherwise,
illiterate and disabled voters shall be allowed to vote under existing laws and regulations.
It is necessary for any qualified voter to register in order to vote. In the case of illiterate
and disabled voters, their voter's affidavit may be prepared by any relative within the
fourth civil degree of consanguinity or affinity or by any member of the board of election
inspectors who shall prepare the affidavit in accordance with the data supplied by the
applicant.

Registration and deactivation

Mandatory Biometrics Registration (RA 10367)
Requires all registered voters whose biometrics had not been captured to submit
themselves for validation starting 01 July 2013.
Voters who fail to summit for validation on or before the last day of the filing of applications
for registration for purposes of the 2016 national and local elections, despite due notice,
shall be deactivated from the Registration Record of voters by the Election Registration
Board (ERB) concerned.

No Bio, no boto.
The assailed regulation on the right to suffrage was sufficiently justified as it was
indeed narrowly tailored to achieve the compelling state interest of establishing a clean,
complete, permanent and updated list of voters, and demonstrably the least restrictive
means in promoting that interest.

Republic Act No. 10366 provides for, among others, assistance in the accomplishment of
registration forms and accessible polling places for persons with disabilities (PWDs) and
senior citizens. The law was precisely in line with the objective of Section 29 of the “Magna
Carta for Persons with Disability” (Republic Act No. 7277) which provides that "polling
places should be made accessible to disabled persons during national and local
elections."

The Commission on Elections shall extend the right to vote under the local absentee
voting system provided under existing laws and executive orders to members of media,
media practitioners, including the technical and support staff, who are duly registered
voters and who, on election day, may not be able to vote due to the performance of their
functions in covering and reporting on the elections; Provided, That they shall be allowed
to vote only for the positions of President, Vice- President, Senators, and Party-List
Representative. (RA 10380)

Among the salient amendments to R.A. 9006 is the deletion of Section 5 (d) where an
immigrant or a permanent resident must execute upon registration an affidavit prepared
by the Commission on Elections declaring that he or she shall resume actual physical
permanent residence in the Philippines not later than 3 years from approval of his or her
registration. This section bears with it the threat of removal of the immigrant’s or
permanent resident’s name from the National Registry of Absentee Voters if he or she
indeed fails to return to the homeland within the three year period.

As such, we hold that moral disapproval, without more, is not a sufficient governmental
interest to justify exclusion of homosexuals from participation in the party-list system. The
denial of Ang Ladlad’s registration on purely moral grounds amounts more to a statement
of dislike and disapproval of homosexuals, rather than a tool to further any substantial
public interest. Respondent’s blanket justifications give rise to the inevitable conclusion
that the COMELEC targets homosexuals themselves as a class, not because of any
particular morally reprehensible act. It is this selective targeting that implicates our equal
protection clause.

Inclusion and exclusion proceedings

Sec. 138. Jurisdiction in inclusion and exclusion cases. - The municipal and metropolitan
trial courts shall have original and exclusive jurisdiction over all matters of inclusion and
exclusion of voters from the list in their respective municipalities or cities. Decisions of the
municipal or metropolitan trial courts may be appealed directly by the aggrieved party to
the proper regional trial court within five days from receipt of notice thereof, otherwise
said decision of the municipal or metropolitan trial court shall become final and executory
after said period. The regional trial court shall decide the appeal within ten days from the
time the appeal was received and its decision shall be immediately final and executory.
No motion for reconsideration shall be entertained by the courts.
Sec. 139. Petition for inclusion of voters in the list. - Any person whose application for
registration has been disapproved by the board of election inspectors or whose name has
been stricken out from the list may apply, within twenty days after the last registration day,
to the proper municipal or metropolitan trial court, for an order directing the board of
election inspectors to include or reinstate his name in the list, together with the certificate
of the board of election inspectors regarding his case and proof of service of notice of his
petition upon a member of the board of election inspectors with indication of the time,
place, and court before which the petition is to be heard.
Sec. 140. Voters excluded through inadvertence or registered with an erroneous or
misspelled name. - Any voter registered in the permanent list who has not been included
in the list prepared for the election or who has been included therein with a wrong or
misspelled name shall have the right to file an application on any date with the proper
municipal or metropolitan trial court, for an order directing that his name be reinstated in
the list or that he be registered with his correct name. He shall attach to such application
a certified copy of the entry of his name in the list of the preceding election, together with
proof that he has applied without success to the board of election inspectors and that he
has served notice thereof upon a member of the board.
Sec. 141. Change of name of registered voter. - Any previously registered voter whose
name has been changed by reason of marriage or by virtue of a court order may request
the board of election inspectors during any of its meetings held under this Article that his
registration in the list be recorded under his or her new name.
Sec. 142. Petition for exclusion of voters from the list. - Any registered voter in a city or
municipality may apply at any time except during the period beginning with the twenty-
first day after the last registration day of any election up to and including election day with
the proper municipal or metropolitan trial court, for the exclusion of a voter from the list,
giving the name and residence of the latter, the precinct in which he is registered, and the
grounds for the challenge. The petition shall be sworn to and accompanied by proof of
notice to the board of election inspectors concerned, if the same is duly constituted, and
to the challenged voters.
Sec. 143. Common rules governing judicial proceedings in the matter of inclusion,
exclusion, and correction of names of voters. -
Outside of regular office hours no petition for inclusion, exclusion, or correction of names
of voters shall be received.
Notices to the members of the board of election inspectors and to challenged voters shall
state the place, day and hour in which such petition shall be heard, and such notice may
be made by sending a copy thereof by registered mail or by personal delivery or by leaving
it in the possession of a person of sufficient discretion in the residence of the said person
or, in the event that the foregoing procedure is not practicable, by posting a copy in a
conspicuous place in the city hall or municipal building and in two other conspicuous
places within the city or municipality, at least ten days prior to the day set for the hearing.
In the interest of justice and to afford the challenged voter every opportunity to contest
the petition for exclusion, the court concerned may, when the challenged voter fails to
appear in the first day set for the hearing, order that notice be effected in such manner
and within such period of time as it may decide, which time shall in no case be more than
ten days from the day the respondent is first found in default.
Each petition shall refer to only one precinct.
No costs shall be assessed in these proceedings. However, if the court should be satisfied
that the application has been filed for the sole purpose of molesting the adverse party and
causing him to incur expenses, it may condemn the culpable party to pay the costs and
incidental expenses.
Any candidate who may be affected by the proceedings may intervene and present his
evidence.
The decision shall be based on the evidence presented. If the question is whether or not
the voter is real or fictitious, his non-appearance on the day set for hearing shall be prima
facie evidence that the registered voter is fictitious. In no case shall a decision be
rendered upon a stipulation of facts.
These applications shall be heard and decided without delay. The decision shall be
rendered within six hours after the hearing and within ten days from the date of its filing
in court. Cases appealed to the regional trial court shall be decided within ten days from
receipt of the appeal in the office of the clerk of court. In any case, the court shall decide
these petitions not later than the day before the election and the decision rendered
thereon shall be immediately final and executory, notwithstanding the provisions of
Section 138 on the finality of decisions.

Local and overseas absentee voting

WHO MAY REGISTER AS OVERSEAS VOTER?
i) all citizens of the Philippines abroad who are at least eighteen years of age on 13 May
2019, who is not a registered overseas voter and not otherwise disqualified by law;
ii) Those who have reacquired or retained their Philippine citizenship under R.A. 9225
and other Filipino citizens with dual citizenship;

WHAT IS THE DIFFERENCE BETWEEN APPLICATION FOR REGISTRATION AND AN

APPLICATION FOR CERTIFICATION AS AN OVERSEAS VOTER?
An Application for Registration as an overseas voter is filed when one is not yet a
registered voter in the Philippines. However, if one is already a registered voter in the
Philippines, one files for an Application for Certification as an overseas voter.

WHAT IS THE PROCEDURE FOR FILING MY APPLICATION FOR

REGISTRATION/CERTIFICATION AS AN OVERSEAS VOTER?
You have to:
a. Personally appear at any Foreign Service Post (FSP) of the Republic of the Philippines
or at any designated Registration Centre outside the FSP or in the Philippines. For an
updated list of registration centers in the Philippines, please check COMELEC and DFA-
OVS website.
b. Accomplish OVF No. 1;
c. Submit/Furnish supporting documents;
d. Submit to a biometrics capture

WHAT DOCUMENT WILL I PRESENT TO THE REPRESENTATIVE OF THE COMELEC

IN THE EMBASSY, CONSULATE, MISSION OR DESIGNATED REGISTRATION
CENTERS IN THE PHILIPPINES?

a. An accomplished OVF No. 1 as prescribed by the COMELEC;

b. A valid Philippine Passport. In the absence of a passport, a Certification from the
Department of Foreign Affairs certifying either of the following:
(1) that you have submitted documents that will warrant the issuance of a passport;
(2) that the applicant is a valid passport holder but is unable to produce it for a valid
reason.
c. If you are a Seafarer, a photocopy of your Seaman's Book or any other document that
will prove that you are a seafarer should also be submitted in addition to "a" and "b" above;
and,
d. If you have availed of RA 9225, you should also provide a certified true copy of the
signed Oath of Allegiance or Order of Approval submitted to the Embassy/Consulate in
addition to "a" and "b" above.
The COMELEC may require additional data to establish your identity.

WHERE CAN I FILE MY APPLICATION FOR REGISTRATION/CERTICFICATION AS

AN OVERSEAS VOTER?
Before the authorized representatives of the COMELEC at any of the FSPs and MECOs
or in specifically designated field or mobile registration areas outside the FSP. You can
also file your applications at any Registration Centers in the Philippines. For an updated
list of registration centers in the Philippines, please check COMELEC and DFA-OVS
website.

WHEN CAN I FILE MY APPLICATION FOR REGISTRATION/CERTIFICATION AS AN

OVERSEAS VOTER?
For purposes of the 13 May 2019 elections you may file your application for
registration/certification as an overseas voter from 1 December 2016 to 30 September
2018. Please inquire from any Embassy, Consulates, and Missions as to the exact
scheduled registration days applicable to you.

WHERE CAN I GET OVF NO. 1 AND OTHER OV REGISTRATION FORMS?

From the Philippine Embassies, Consulates General, Consulates, MECOs and other
designated registration centers outside the FSP or in the Philippines. Forms may also be
downloaded from the website of the COMELEC or the Department of Foreign Affairs –
Overseas Voting Secretariat.

WHAT INFORMATION DO I NEED TO FURNISH IN OVF NO.1?

OVF No. 1. has three parts:
Part 1. This part contains your Personal Circumstances. In addition, the name of your
authorized representative in the Philippines must also be indicated, should you choose to
appoint one.
Part 2. The Oath that you must take
Part 3. This portion shall be filled up by the RERB.

IF I DOWNLOADED THE OVF NO. 1 FROM THE WEBSITE OF THE COMELEC OR

THE DFA-OVS, HOW SHOULD I PROCEED WITH MY APPLICATION FOR
REGISTRATION/CERTIFICATION AS AN OVERSEAS VOTER?

You have to:

a. Accomplish OVF No. 1;
b. Personally appear at any FSPs and MECOs or at any designated Registration Centers
in the Philippines. For an updated list of registration centers in the Philippines, please
check COMELEC and DFA-OVS website.
c. Submit the accomplished OVF No. 1 together with your supporting documents; and
d. Submit to a biometrics capture

WHAT DOES IT MEAN TO SUBMIT TO A BIOMETRICS CAPTURE?

Biometrics capture means that your photograph, signature and fingerprint will be
electronically recorded using a special digital equipment called Voter Registration
Machine (VRM).

MAY I SUBMIT MY ACCOMPLISHED OVF NO. 1 AND SUBMIT MYSELF FOR LIVE
CAPTURE OF MY BIOMETRICS ON DIFFERENT DAYS?
No, you may not. The accomplished OVF No. 1 must be turned in on the same day that
you intend to have your biometrics taken because even if you have submitted your OVF
No. 1 but have not had your biometrics taken, your application will still be deemed NOT
FILED. However, if on the day that you filed your application, the Voters Registration
Machine (VRM) is defective or otherwise not available, you will be required to return on a
different date when the machine becomes available.

I AM A SEAFARER, HOW SHOULD I PROCEED WITH MY APPLICATION FOR

REGISTRATION/CERTIFICATION AS AN OVERSEAS VOTER?
You have to:
a. Personally appear at ANY FSPs and MECOs or at the designated Registration Centers
in the Philippines. For an updated list of registration centers in the Philippines, please
check COMELEC and DFA-OVS website.
b. Accomplish OVF No. 1 indicating the specific address where you want your ballot to
be sent;
c. Submit the accomplished OVF No. 1 together with your supporting documents; and
d. Submit to a biometrics capture.

HOW WILL I KNOW IF MY APPLICATION HAS BEEN APPROVED?

You may regularly check the website of the COMELEC (www.comelec.gov.ph) or DFA-
OVS (www.dfa-oavs.gov.ph) if your application has been approved. You may also check
with your Embassy or Consulate.

HOW WILL I KNOW IF MY APPLICATION HAS BEEN DISAPPROVED?

You will receive a Notice of Disapproval of your application by mail or any other modes
of communication, from the Resident Election Registration Board (RERB) of the FSPs or
MECOs which heard your application.

WHAT SHOULD I DO IF MY APPLICATION HAS BEEN DISAPPROVED?

Within five (5) days from receipt of the Notice of Disapproval of your application, you or
your authorized representative may file a Motion for Reconsideration before the Resident
Election Registration Board (RERB) of the Post or with the RERB of the COMELEC in
Manila.

WHAT IS THE RESIDENT ELECTION REGISTRATION BOARD (RERB)?

It is the Board based in the FSPs or MECOs and COMELEC Central Office in Manila,
which shall hear and act on all applications for registration/certification as overseas voter.

WHAT IF THE RERB DENIES MY MOTION FOR RECONSIDERATION OF THE

DISAPPROVAL OF MY APPLICATION FOR REGISTRATION/CERTIFICATION?
You may file a Petition for Inclusion with the Municipal or Metropolitan Trial Court in Manila
within ten (10) days from the receipt of the Notice of the denial.

WHAT SHOULD I DO IF MY NAME HAS BEEN OMITTED, MISSPELLED OR

ERRONEOUSLY WRITTEN IN THE NATIONAL REGISTRY OF OVERSEAS VOTERS
(NROV)?
You may personally, or through your authorized representative, file with the OFOV or with
the Post having jurisdiction over the voter's residence, an Application for Reinstatement
in the NROV by accomplishing OVF No. 1D; or accomplish OVF No. 1E for

CORRECTION OF WRONG ENTRIES/MISSPELLED NAMES/CHANGE OF NAME &

OTHER ENTRIES IN THE VOTER'S ID/NATIONAL REGISTRY OF OVERSEAS
VOTERS (NROAV) and submit the same to the COMELEC-OFOV or the Post having
jurisdiction over the applicant's residence, not later than ninety (90) days before the start
of voting period.

I REGISTERED AS AN OVERSEAS ABSENTEE VOTER IN 2010 AND I WAS ABLE TO

VOTE IN THE 2010 AND 2013 NATIONAL ELECTIONS BUT WAS UNABLE TO VOTE
IN 2016 NATIONAL ELECTIONS. DO I STILL NEED TO APPLY FOR CERTIFICATION
TO VOTE ABROAD?
No, because your name is already listed in the Certified List of Overseas Voters (CLOV)
and the National Registry of Overseas Voters (NROV) but if you fail to vote in the 2019
National Elections abroad, your name will be deactivated from the CLOV of your Embassy
or Consulate.

I REGISTERED AS AN OVERSEAS VOTER IN 2014 BUT I KNOW I WILL BE IN

ANOTHER COUNTRY COME 13 MAY 2019. CAN I VOTE IN THE 2019 ELECTIONS?
Yes, you have to file a Letter-Request for Transfer of Registration Record (OVF No. 1B)
before your Embassy or Consulate.

I REGISTERED AS AN OVERSEAS VOTER IN 2014 BUT I KNOW I WILL BE IN THE

PHILIPPINES COME 13 MAY 2019. CAN I VOTE IN THE 2019 ELECTIONS IN THE
PHILIPPINES?
Yes, you have to file a Letter-Request for Transfer of Registration Record (OVF No. 1B)
before your Embassy or Consulate or before the OFOV in Manila. Upon receipt of
approval of the request for transfer of registration record, you have to go to the office of
your local election officer and submit CEF 1B (Local Application for Transfer) and have
your biometrics taken.

Detainee voting
DETAINEE VOTING is the process by which a registered detainee voter, whose
registration record is not transferred, deactivated, cancelled or deleted, may still exercise
his right to vote.
COMELEC Resolution 9371, dated 06 March 2012, has defined a detainee to be any
person who is: confined in jail, formally charged for any crime/s and awaiting/undergoing
trial; or serving a sentence of imprisonment for less than one (1) year; or
whose conviction of a crime involving disloyalty to the duly constituted government such
as rebellion, sedition, violation of the firearms laws or any crime against national security
or for any other crime is on appeal.

Candidacy
Qualifications
Residency
There is no hard and fast rule to determine a candidate’s compliance with residency
requirement since the question of residence is a question of intention. Still, jurisprudence
has laid down the following guidelines: (a) every person has a domicile or residence
somewhere; (b) where once established, that domicile remains until he acquires a new
one; and (c) a person can have but one domicile at a time.
On the other hand, when he came to the Philippines in November 2008 to live with his
brother in Zamboanga Sibugay, it is evident that Jalosjos did so with intent to change his
domicile for good. He left Australia, gave up his Australian citizenship, and renounced his
allegiance to that country. In addition, he reacquired his old citizenship by taking an oath
of allegiance to the Republic of the Philippines, resulting in his being issued a Certificate
of Reacquisition of Philippine Citizenship by the Bureau of Immigration. By his acts,
Jalosjos forfeited his legal right to live in Australia, clearly proving that he gave up his
domicile there. And he has since lived nowhere else except in Ipil, Zamboanga Sibugay.

Domicile is not easily lost. To successfully effect a transfer thereof, one must
demonstrate: (1) an actual removal or change of domicile; (2) a bona fide intention of
abandoning the former place of residence and establishing a new one; and (3) acts which
correspond with that purpose. There must be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite
period of time; the change of residence must be voluntary; and the residence at the place
chosen for the new domicile must be actual.

With the conclusion that Mitra did not commit any material misrepresentation in his COC,
we see no reason in this case to appeal to the primacy of the electorate’s will. We cannot
deny, however, that the people of Palawan have spoken in an election where residency
qualification had been squarely raised and their voice has erased any doubt about their
verdict on Mitra’s qualifications. Under these terms, we cannot be any clearer.

Citizenship
There is a disputable presumption that things have happened according to the
ordinary course of nature and the ordinary habits of life.113 All of the foregoing evidence,
that a person with typical Filipino features is abandoned in Catholic Church in a
municipality where the population of the Philippines is overwhelmingly Filipinos such that
there would be more than a 99% chance that a child born in the province would be a
Filipino, would indicate more than ample probability if not statistical certainty, that
petitioner’s parents are Filipinos. That probability and the evidence on which it is based
are admissible under Rule 128, Section 4 of the Revised Rules on Evidence. To assume
otherwise is to accept the absurd, if not the virtually impossible, as the norm.

Disqualifications
a. Violation of Omnibus Election Code
i. Giving money or other material consideration to influence voters or public officials
performing electoral functions.
ii. Committing acts of terrorism to enhance his candidacy iii. Spending in his election
campaign in excess of the amount allowed by the Code
iv. Soliciting, receiving or making any prohibited contribution
b. Nuisance Candidate
c. Falsity of material representation in certificate of candidacy.

In connection with the May 1987 Congressional elections, Luis Millanes was prosecuted
for and convicted of an election offense and was sentenced to suffer imprisonment for six
years. The court did not impose the additional penalty of disqualification to hold public
office and of deprivation of the right of suffrage as provided for in Section 164 of the
Omnibus Election Code of the Philippines (B.P. Blg. 881). In April 1991, the President
granted him absolute pardon on the basis of a strong recommendation of the Board of
Pardons and Parole. Then for the election in May 1992, Luis Millanes files his certificate
of candidacy for the office of Mayor in his municipality. Is a petition to disqualify Millanes
viable?
In accordance with Sec. 68 of the Omnibus Election Code, Luis Millanes may be
disqualified from running for mayor as he was convicted of an election offense.

What are the effects of a petition to disqualify?

Under Sec. 6 of the Electoral Reforms Law, any candidate who has been declared
by final judgment to be disqualified shall not be voted for, and votes cast for him shall not
be counted. If before the election he is not declared by final judgment to be disqualified
and he is voted for and he receives the winning number of votes, the hearing on the
question of disqualification should continue. Upon motion of the complainant or any
intervenor, the court or the Comelec may order the suspension of the proclamation of the
winning candidate if the evidence of his guilt is strong.

Under the Local Government Code, name four persons who are disqualified from running
for any elective position.
Under Section 40 of the Local Government Code, the following are disqualified
from running for any local elective position:
1) Those sentenced by final judgment for an offense involving moral turpitude or for an
offense punishable by one year or more of imprisonment, within two years after serving
sentence;
2) Those removed from office as a result of an administrative case;
3) Those convicted by final judgment for violating the oath of allegiance to the Republic
of the Philippines;
4) Those with dual citizenship;
5) Fugitives from justice in criminal or non-political cases here or abroad;
6) Permanent residents in a foreign country or those who have acquired the right to reside
abroad and continue to avail of the same right after the effectivity of the Local Government
Code; and
7) The insane or feeble-minded.

In the May 1992 elections, Manuel Manalo and Segundo Parate were elected as Mayor
and Vice Mayor, respectively. Upon the death of Manalo as incumbent municipal mayor,
Vice Mayor Segundo Parate succeeded as mayor and served for the remaining portion
of the term of office. In the May 1995 election, Segundo Parate ran for and won as mayor
and then served for the full term. In the May 1998 elections, Parate ran for reelection as
Mayor and won again. In the May 2001 election, Segundo Parate filed his certificate of
candidacy for the same position of mayor, but his rival mayoralty candidate sought his
disqualification alleging violation of the three- term limit for local elective officials provided
for in the Constitution and in the Local Government Code. Decide whether the
disqualification case will prosper or not.
 The disqualification case should be dismissed. As held, in computing the three-
term limitation imposed upon elective local officials, only the term for which he was elected
to should be considered. The term which he served as a result of succession should not
be included. It is not enough that the official has served three consecutive terms. He must
have been elected to the same position three consecutive times.

Manuel was elected Mayor of the Municipality of Tuba in the elections of 1992, 1995 and
1998. He fully served his first two terms, and during his third term, the municipality was
converted into the component City of Tuba. The said charter provided for a hold- over
and so without interregnum Manuel went on to serve as the Mayor of the City of Tuba. In
the 2001 elections, Manuel filed his certificate of candidacy for City Mayor. He disclosed,
though, that he had already served for three consecutive terms as elected Mayor when
Tuba was still a municipality. He also stated in his certificate of candidacy that he is
running for the position of Mayor for the first time now that Tuba is a city. Reyes, an
adversary, ran against Manuel and petitioned that he be disqualified because he had
already served for three consecutive terms as Mayor. The petition was not timely acted
upon, and Manuel was proclaimed the winner with 20,000 votes over the 10,000 votes
received by Reyes as the only other candidate. It was only after Manuel took his oath and
assumed office that the COMELEC ruled that he was disqualified for having ran and
served for three consecutive terms. As lawyer of Manuel, present the possible arguments
to prevent his disqualification and removal.
As lawyer of Manuel, I would argue that he should not be disqualified and removed
because he was a three-term mayor of the municipality of Tuba, and, with its conversion
to a component city, the latter has a totally separate and different corporate personality
from that of the municipality. Moreover, as a rule, in a representative democracy, the
people should be allowed freely to choose those who will govern them. Having won the
elections, the choice of the people should be respected.

How would you rule on whether or not Manuel is eligible to run as Mayor of the newly-
created City of Tuba immediately after having already served for three consecutive terms
as Mayor of the Municipality of Tuba?
Manuel is not eligible to run as mayor of the city of Tuba. The 1987 Constitution
specifically included an exception to the people's freedom to choose those who will
govern them in order to avoid the evil of a single person accumulating excessive power
over a particular territorial jurisdiction as a result of a prolonged stay in the same office.
To allow Manuel to vie for the position of city mayor after having served for three
consecutive terms as a municipal mayor would obviously defeat the very intent of the
framers when they wrote this exception. Should he be allowed another three consecutive
terms as mayor of the City of Tuba, Manuel would then be possibly holding office as chief
executive over the same territorial jurisdiction and inhabitants for a total of eighteen
consecutive years. This is the very scenario sought to be avoided by the Constitution, if
not abhorred by it.

Assuming that Manuel is not an eligible candidate, rebut Reyes' claim that he should be
proclaimed as winner having received the next higher number of votes.
 Reyes cannot be proclaimed winner for receiving the second highest number of
votes. The Supreme Court has consistently ruled that the fact that a plurality or a majority
of the votes are cast for an ineligible candidate at a popular election, or that a candidate
is later declared to be disqualified to hold office, does not entitle the candidate who
garnered the second highest number of votes to be declared elected. The same merely
results in making the winning candidate's election a nullity. In the present case, 10,000
votes were cast for private respondent Reyes as against the 20,000 votes cast for
petitioner Manuel. The second placer is obviously not the choice of the people in this
particular election. The permanent vacancy in the contested office should be filled by
succession.

Abdul ran and won in the May 2001, 2004, and 2007 elections for Vice-Governor of Tawi-
Tawi. After being proclaimed Vice- Governor in the 2004 elections, his opponent, Khalil,
filed an election protest before the Commission on Election. Ruling with finality on the
protest, the COMELEC declared khalil as the duly elected Vice- Governor though the
decision was promulgated only in 2007, when Abdul had fully served his 2004-2007 term
and was in fact already on his 2007-2010 term as Vice- Governor. Abdul now consults
you if he can still run for Vice-Governor of Tawi-Tawi in the forthcoming May 2010 election
on the premise that he could not be considered as having served as Vice-Governor from
2004- 2007 because he was not duly elected to the post, as he assumed office merely as
presumptive winner and that presumption was later overturned when COMELEC decided
with finality that had lost in the May 2004 elections. What will be your advice?
I will advice Abdul that he can no longer run for Vice-Governor in the forthcoming
May 2010 election because there is no interruption of service of his 2004-2007 term. He
is considered to have already served and thereof it is counted in the consecutiveness of
his term of office.

Abdul also consults you whether his political party can validly nominate his wife as
substitute candidate for Vice-Governor of Tawi-Tawi in May 2010 election in case the
COMELEC disqualifies him and denies due course to or cancels his certificate of
candidacy in view of a false material representation therein. What will be your advice?
I will advise him that his wife can be a substitute if his wife is a member of the
political party and is certified by such political party that she is going to substitute Abdul
as candidate for Vice-Governor and that the substitution must be made within the
prescribed period provided by law. Provided further that his wife is eligible to hold public
office meaning she has all the qualifications and none of the disqualifications.

Filing of certificates of candidacy

Effect of filing
A, a City Legal Officer, and B, a City Vice-Mayor, filed certificates of candidacy for the
position of City Mayor in the May 14, 2001 elections. Was A ipso facto considered
resigned and, if so, effective on what date?
A was considered ipso facto resigned upon the filing of his certificate of candidacy,
because being a City Legal Officer, he is an appointive official. Section 66 of the Omnibus
Election Code provides that any person holding a public appointive office shall be
considered ipso facto resigned upon the filing of his certificate of candidacy.
Was B ipso facto considered resigned and, if so, effective on what date? In both cases,
state the reason or reasons for your answer.
B is not considered ipso facto resigned. Section 67 of the Omnibus Election Code
considers any elective official ipso facto resigned from office upon his filing of a certificate
of candidacy for any office other than the one he is holding except for President and Vice-
President, was repealed by the Fair Election Act.

Pedro Reyes is an incumbent Vice- Mayor of Quezon City. He intends to run in the regular
elections for the position of City Mayor of Quezon City whose incumbent mayor would
have fully served three consecutive terms by 2004. Would Pedro Reyes have to give up
his position as Vice-Mayor-
(1) Once he files his certificate of candidacy; or
(2) When the campaign period starts; or
(3) Once and if he is proclaimed winner in
the election; or
(4) Upon his assumption to the elective
office; or
(5) None of the above.
Choose the correct answer
The correct answer is (5). Section 14 of the Fair Election Act repealed Section 67
of the Omnibus Election Code, which provided that any elected official, whether national
or local, who runs for any office other than the one he is holding in a permanent capacity,
except for President and Vice President, shall be considered ipso facto resigned from his
office upon the filing of his certificate of candidacy. Section 14 of the Fair Election Act
likewise rendered ineffective the first proviso in the third paragraph of Section 11 of
Republic Act No. 8436. Consequently, Pedro Reyes can run for Mayor without giving up
his position as Vice-Mayor. He will have to give up his position as Vice-Mayor upon
expiration of his term as Vice-Mayor on June 30, 2004.

If Pedro Reyes were, instead, an incumbent Congressman of Quezon City, who intends
to seek the mayoralty post in Quezon City, would your choice of answer in no.(1) above
be the same? If not, which would be your choice?
The answer is the same if Pedro Reyes is a Congressman of Quezon City,
because the repeal of Section 67 of the Omnibus Election Code covers both elective
national and local officials.

Substitution and withdrawal of candidates

Sec. 70. Guest candidacy. - A political party may nominate and/or support candidates not
belonging to it.
Sec. 71. Changing political party affiliation. - An elective official may change his party
affiliation for purposes of the election next following his change of party within one year
prior to such election.
Sec. 72. Effects of disqualification cases and priority. - The Commission and the courts
shall give priority to cases of disqualification by reason of violation of this Act to the end
that a final decision shall be rendered not later than seven days before the election in
which the disqualification is sought.
Any candidate who has been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. Nevertheless, if for any reason,
a candidate is not declared by final judgment before an election to be disqualified and he
is voted for and receives the winning number of votes in such election, his violation of the
provisions of the preceding sections shall not prevent his proclamation and assumption
to office.
Sec. 77. Candidates in case of death, disqualification or withdrawal of another. - If after
the last day for the filing of certificates of candidacy, an official candidate of a registered
or accredited political party dies, withdraws or is disqualified for any cause, only a person
belonging to, and certified by, the same political party may file a certificate of candidacy
to replace the candidate who died, withdrew or was disqualified. The substitute candidate
nominated by the political party concerned may file his certificate of candidacy for the
office affected in accordance with the preceding sections not later than mid-day of the
day of the election. If the death, withdrawal or disqualification should occur between the
day before the election and mid-day of election day, said certificate may be filed with any
board of election inspectors in the political subdivision where he is a candidate, or, in the
case of candidates to be voted for by the entire electorate of the country, with the
Commission.

Nuisance candidates
Sec. 69. Nuisance candidates. - The Commission may motu proprio or upon a verified
petition of an interested party, refuse to give due course to or cancel a certificate of
candidacy if it is shown that said certificate has been filed to put the election process in
mockery or disrepute or to cause confusion among the voters by the similarity of the
names of the registered candidates or by other circumstances or acts which clearly
demonstrate that the candidate has no bona fide intention to run for the office for which
the certificate of candidacy has been filed and thus prevent a faithful determination of the
true will of the electorate.

Moreover, private respondent admits that the voters were properly informed of the
cancellation of COC of Aurelio because COMELEC published the same before election
day. As we pronounced in Bautista, the voters’ constructive knowledge of such cancelled
candidacy made their will more determinable, as it is then more logical to conclude that
the votes cast for Aurelio could have been intended only for the legitimate candidate,
petitioner. The possibility of confusion in names of candidates if the names of nuisance
candidates remained on the ballots on election day, cannot be discounted or eliminated,
even under the automated voting system especially considering that voters who
mistakenly shaded the oval beside the name of the nuisance candidate instead of the
bona fide candidate they intended to vote for could no longer ask for replacement ballots
to correct the same.

Duties of the COMELEC

1. Enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall.
2. Exercise - exclusive original jurisdiction all contests relating to the elections, returns,
and qualifications of all elective provincial, city officials;
- appellate jurisdiction over all contests involving:
Elective municipal officials decided by the trial courts of general jurisdiction
Elective barangay officials decided by the trial courts of limited jurisdiction
Decisions, final orders, or rulings of the COMELEC on election contests
involving elective municipal and barangay offices shall be final and executory, and not
appealable.
3. Decide, except those involving the right to vote, all questions affecting elections,
including determination of the number and location of polling places appointment of
election officials and inspectors, and registration of voters.
4. Deputize, with the concurrence of the President, law enforcement agencies and
instrumentalities of the government, including the AFP for the exclusive purpose of
ensuring free, orderly, honest, peaceful, and credible elections.
5. Registration of political parties, organization, or coalition/accreditation of citizens’ arms
of the COMELEC.
6. File, upon a verified complaint, or on its own initiative, petitions in court for the inclusion
or exclusion of voters, investigate and where appropriate, prosecute cases for violations
of election laws, including acts or omissions constituting election frauds, offenses and
malpractices.
7. Recommend to Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and
penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies.
8. Recommend to the President the removal of any officer or employee it has deputized,
or the imposition of any other disciplinary action, for violation or disregard of, or
disobedience to it.
9. Submit to the President and Congress a comprehensive report on the conduct of each
election, plebiscite, initiative, referendum, or recall.
10. Exercise supervision and control over officials required to perform duties relative to
the conduct of election
11. Promulgate rules and regulations
12. Summon parties to a controversy pending before it.
13. Punish contempt

If it should no longer be reasonably possible to observe the periods and dates prescribed
by law for certain pre-election acts, the Commission shall fix other periods and dates in
order to ensure accomplishment of the activities so voters shall not be deprived of their
right of suffrage.” (R.A. 6646)

To carry out the above-stated policy, the Commission on Elections, herein referred to as
the Commission, is hereby authorized to use an automated election system or systems
in the same election in different provinces, whether paper-based or a direct recording
electronic election system as it may deem appropriate and practical for the process of
voting, counting of votes and canvassing/consolidation and transmittal of results of
electoral exercises." (R.A. 9369)
The clear import of the Court’s pronouncement in Akbayan-Youth is that had the therein
petitioners filed their petition – and sought an extension date that was – before the 120-
day prohibitive period, their prayer would have been granted pursuant to the mandate of
RA 8189. In the present case, as reflected earlier, both the dates of filing of the petition
(October 30, 2009) and the extension sought (until January 9, 2010) are prior to the 120-
day prohibitive period. The Court, therefore, finds no legal impediment to the extension
prayed for.

Remedies and jurisdiction

In the municipal mayoralty elections in 1980, the candidate who obtained the highest
number of votes was subsequently declared to be disqualified as a candidate and so
ineligible for the office to which he was elected. Would this fact entitle a competing
candidate who obtained the second highest number of votes to ask and to be proclaimed
the winner of the elective office? Reasons.
According to a case if the candidate who obtained the highest number of votes is
disqualified, the candidate who obtained the second highest number of votes cannot be
proclaimed the winner. Since he was not the choice of the people, he cannot claim any
right to the office.

A filed a protest with the House Electoral Tribunal questioning the election of B as Member
of the House of Representatives in the 1987 national elections on the ground that B is not
a resident of the district the latter is representing. While the case was pending. B accepted
an ad-interim appointment as Secretary of the Department of Justice. May A continue
with his election protest in order to determine the real winner in the said elections? State
your reason.
No, A may not continue with his protest.

Can A, who got the second highest number of votes in the elections, ask that he be
proclaimed elected in place of B? Explain your answer.
No, A cannot ask that he be proclaimed elected in place of B. The votes cast for B
were not invalid votes. Hence, A garnered only the second highest number of votes. Only
the candidate who obtained the majority or plurality of the votes is entitled to be
proclaimed elected. On this ground, it was held that the fact that the candidate who
obtained the highest number of votes is not eligible does not entitle the candidate who
obtained the second highest number of votes to be proclaimed the winner.

Edwin Nicasio, born in the Philippines of Filipino parents and raised in the province of
Nueva Ecija, ran for Governor of his home province. He won and he was sworn into office.
It was recently revealed, however, that Nicasio is a naturalized American citizen. If the
second-placer in the gubematorial elections files a quo warranto suit against Nicasio and
he is found to be disqualified from office, can the second-placer be sworn into office as
governor?
In accordance with a ruling, the second placer cannot be sworn to office, because
he lost the election. To be entitled to the office, he must have garnered the majority or
plurality of the votes.
A and B were the only candidates for mayor of Bigaa, Bulacan in the May 1995 local
elections. A obtained 10,000 votes as against 3,000 votes for B. In the same elections, X
got the highest number of votes among the candidates for the Sangguniang Bayan of the
same town. A died the day before his proclamation. Who should the Board of Canvassers
proclaim as elected mayor, A, B or X? Explain.
In accordance with a case, it is A who should be proclaimed as winner, because
he was the one who obtained the highest number of votes for the position of mayor, but
a notation should be made that he died for the purpose of applying the rule on succession
to office. B cannot be proclaimed, because the death of the candidate who obtained the
highest number of votes does not entitle the candidate who obtained the next highest
number of votes to be proclaimed the winner, since he was not the choice of the
electorate. X is not entitled to be proclaimed elected as mayor, because he ran for the
Sangguniang Bayan.

Who is entitled to discharge the functions of the office of the mayor, B or X? Explain.
Neither B nor X is entitled to discharge the functions of the office of mayor. B is not
entitled to discharge the office of mayor, since he was defeated in the election. X is not
entitled to discharge the office of mayor. Under Section 44 of the Local Government Code,
it is the vice mayor who should succeed in case of permanent vacancy in the office of the
mayor. It is only when the position of the vice mayor is also vacant that the member of
the Sangguniang Bayan who obtained the highest number of votes will succeed to the
office of mayor.

If a candidate for town mayor is an engineer by profession, should votes for him with the
prefix "Engineer" be invalidated as "marked ballots"?
No, a ballot in which the name of a candidate for town mayor who is an engineer
which is prefixed with "engineer" should not be invalidated as a marked ballot. Under Rule
No. 12 of the rules for the appreciation of ballots, ballots which contain such prefixes are
valid.

Mayor Pink is eyeing re-election in the next mayoralty race. It was common knowledge in
the town that Mayor Pink will run for re-election in the coming elections. The deadline for
filing of Certificate of Candidacy (CoC) is on March 23 and the campaign period
commences the following day. One month before the deadline, Pink has yet to file her
CoC, but she has been going around town giving away sacks of rice with the words "Mahal
Tayo ni Mayor Pink" printed on them, holding public gatherings and speaking about how
good the town is doing, giving away pink t-shirts with "Kay Mayor Pink Ako" printed on
them. Mr. Green is the political opponent of Mayor Pink. In April, noticing that Mayor Pink
had gained advantage over him because of her activities before the campaign period, he
filed a petition to disqualify Mayor Pink for engaging in an election campaign outside the
designated period. Which is the correct body to rule on the matter? Comelec en banc, or
Comelec division? Answer with reasons.
It is the Commission on elections en banc which should decide the petition. Since
it involves the exercise of the administrative powers of the Commission on Elections,
Section 3, Article 9C of the Constitution is not applicable.
Rule on the petition.
The petition should be denied. Under Section 80 of the Omnibus Election Code, to
be liable for premature campaigning he must be a candidate. Unless he filed his certificate
of candidacy, he is not a candidate.

Distinguish briefly between Quo Warranto in elective office and Quo Warranto in
appointive office.
In quo warranto in elective office, the issue is the ineligibility of the elected
candidate. (Section 3(e), Rule 1, Rules of Procedure in Election Cases.) If he is ineligible,
the candidate who got the second highest number of votes cannot be proclaimed elected.
A voter may file a petition for quo warranto against an elected candidate. The
petition should be filed within ten days after the proclamation of the elected candidate.
In quo warranto in appointive office, the issue is the legality of the appointment. The court
will decide who between the parties has the legal title to the office. It is the Solicitor
General, a public prosecutor, or a person claiming to be entitled to the public office can
file a petition for quo warranto against an appointive official. (Section 2 and 5, Rule 66 of
the Rules of Court.) The Petition should be filed within one year after the cause of action
accrued.

Petition to deny due course or cancel a certificate of candidacy

Petition for disqualification
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed
by the person exclusively on the ground that any material representation contained
therein as required under Section 74 hereof is false. The petition may be filed at any time
not later than twenty-five days from the time of the filing of the certificate of candidacy
and shall be decided, after due notice and hearing, not later than fifteen days before the
election.

In light of the cancellation of petitioner's CoC due to ineligibility existing at the time of
filing, he was never a valid candidate for the position of Punong Barangay of Brgy. Pulung
Maragul in the 2013 Barangay Elections, and the votes cast for him are considered stray
votes. Thus, the qualified candidate for the said post who received the highest number of
valid votes shall be proclaimed the winner.
The rule on succession in Section 44 of the Local Government Code cannot apply
in instances when a de facto officer is ousted from office and the de jure officer takes
over. The ouster of a de facto officer cannot create a permanent vacancy as contemplated
in the Local Government Code. There is no vacancy to speak of as the de jure officer, the
rightful winner in the elections, has the legal right to assume the position.

AT ALL EVENTS, the use of a name other than that stated in the certificate of birth is not
a material misrepresentation, as "material misrepresentation" under the earlier-quoted
Section 78 of the Omnibus Election Code refers to "qualifications for elective office." It
need not be emphasized that there is no showing that there was an intent to deceive the
electorate as to private respondent’s identity, nor that by using his Filipino name the voting
public was thereby deceived.
Clearly, from the foregoing, for the petition to deny due course or cancel the COC of one
candidate to prosper, the candidate must have made a material misrepresentation
involving his eligibility or qualification for the office to which he seeks election, such as
the requisite residency, age, citizenship or any other legal qualification necessary to run
for local elective office as provided in the Local Government Code. Hence, petitioner’s
allegation that respondent’s nickname "LRAY JR. MIGZ" written in his COC is a material
misrepresentation is devoid of merit. Respondent's nickname written in the COC cannot
be considered a material fact which pertains to his eligibility and thus qualification to run
for public office.

The Supreme Court distinguished a petition for disqualification under Sec. 68

(OEC) and a petition to cancel or deny due course to a certificate of candidacy (COC)
under Sec. 78 (OEC):
“At this point, we must stress that a "Section 78" petition ought not to be interchanged or
confused with a "Section 68" petition. They are different remedies, based on different
grounds, and resulting in different eventualities. Private respondent's insistence,
therefore, that the petition it filed before the COMELEC in SPA No. 07-372 is in the nature
of a disqualification case under Section 68, as it is in fact captioned a "Petition for
Disqualification," does not persuade the Court.
To emphasize, a petition for disqualification, on the one hand, can be premised on
Section 12 or 68 of the OEC, or Section 40 of the LGC. On the other hand, a petition to
deny due course to or cancel a CoC can only be grounded on a statement of a material
representation in the said certificate that is false. The petitions also have different effects.
While a person who is disqualified under Section 68 is merely prohibited to continue as a
candidate, the person whose certificate is cancelled or denied due course under Section
78 is not treated as a candidate at all, as if he/she never filed a CoC. Thus, in Miranda v.
Abaya, this Court made the distinction that a candidate who is disqualified under Section
68 can validly be substituted under Section 77 of the OEC because he/she remains a
candidate until disqualified; but a person whose CoC has been denied due course or
cancelled under Section 78 cannot be substituted because he/she is never considered a
candidate.”

In fine, the Court observes that the HRET wantonly disregarded the law by deliberately
adopting the COMELEC En Banc’s flawed findings regarding private respondent’s
eligibility to run for public office which essentially stemmed from her substitution. In this
light, it cannot be gainsaid that the HRET gravely abused its discretion.
Owing to the lack of proper substitution in its case, private respondent was
therefore not a bona fide candidate for the position of Representative for the Fourth
District of Leyte when she ran for office, which means that she could not have been
elected. Considering this pronouncement, there exists no cogent reason to further dwell
on the other issues respecting private respondent’s own qualification to office.

Section 79(a) of the Omnibus Election Code defines a “candidate” as “any person aspiring
for or seeking an elective public office, who has filed a certificate of candidacy x x x.” The
second sentence, third paragraph, Section 15 of RA 8436, as amended by Section 13 of
RA 9369, provides that “[a]ny person who files his certificate of candidacy within [the
period for filing] shall only be considered as a candidate at the start of the campaign
period for which he filed his certificate of candidacy.” The immediately succeeding proviso
in the same third paragraph states that “unlawful acts or omissions applicable to a
candidate shall take effect only upon the start of the aforesaid campaign period.” These
two provisions determine the resolution of this case.

Gandang Bai filed her certificate of candidacy (COC) for municipal mayor stating that she
is eligible to run for the said position. Pasyo Maagap, who also filed his COC for the same
position, filed a petition to deny due course or cancel Bai's COC under Section 78 of the
Omnibus Election Code for material misrepresentation as before Bai filed her COC, she
had already been convicted of a crime involving moral turpitude. Hence, she is
disqualified perpetually from holding any public office or from being elected to any public
office. Before the election, the COMELEC cancelled Bai's COC but her motion for
reconsideration (MR) remained pending even after the election. Bai garnered the highest
number of votes followed by Pasyo Maagap, who took his oath as Acting Mayor.
Thereafter, the COMELEC denied Bai's MR and declared her disqualified for running for
Mayor. P. Maagap asked the Department of Interior and Local Government Secretary to
be allowed to take his oath as permanent municipal mayor. This request was opposed by
Vice Mayor (1) Umaasa, invoking the rule on succession to the permanent vacancy
in the Mayor's office. Who between Pasyo Maagap and Vice Mayor Umaasa has the right
to occupy the position of Mayor? Explain your answer. Explain.
Vice Mayor Umaasa has the right to occupy the position of Mayor. This was settled
in a case where the court upheld that the disqualification of Bai created a situation of a
permanent vacancy in the office of the Mayor. A permanent vacancy is filled pursuant to
the law on succession defined in Section 44 of the LGC which states the “If a permanent
vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor
concerned shall become the governor or mayor. “
Pasyo Maagap who garnered only the second highest number of votes lost to
Gandang Bai. Applying a ruling in a case, could not assume office for he was only second
placer despite the disqualification of the Gandang Bai because the second placer was
"not the choice of the sovereign will." Surely, the Court explained, a minority or defeated
candidate could not be deemed elected to the office. There was to be no question that
the second placer lost in the election, was repudiated by the electorate, and could not
assume the vacated position. No law imposed upon and compelled the people of Lucena
City to accept a loser to be their political leader or their representative.
The only time that a second placer is allowed to take the place of a disqualified
winning candidate is when two requisites concur, namely: (a) the candidate who obtained
the highest number of votes is disqualified; and (b) the electorate was fully aware in fact
and in law of that candidate’s disqualification as to bring such awareness within the realm
of notoriety but the electorate still cast the plurality of the votes in favor of the ineligible
candidate. Under this sole exception, the electorate may be said to have waived the
validity and efficacy of their votes by notoriously misapplying their franchise or throwing
away their votes, in which case the eligible candidate with the second highest number of
votes may be deemed elected.65 The facts of the case at bar did not state the existence
of such exception, thus it cannot apply in favor of Maagap simply because the second
element was absent.

How do you differentiate the petition filed under Section 68 from the petition filed under
Section 78, both of the Omnibus Election Code?
The two remedies available to prevent a candidate from running in an electoral
race are under Section 68 and under Section 78 of the Omnibus Election Code. The
candidate who is disqualified based on the grounds under Section 68 (i.e., prohibited acts
of candidates, and the fact of a candidate’s permanent residency in another country when
that fact affects the residency requirement of a candidate) is merely prohibited to continue
as a candidate. On the other hand, a candidate whose certificate is cancelled or denied
due course based on a statement of a material representation in the said certificate that
is false under Section 78, is not treated as a candidate at all, as if he/she never filed a
Certificate of Candidacy.

Failure of election, call of special election

A Comelec resolution provides that political parties supporting a common set of
candidates shall be allowed to purchase jointly air time and the aggregate amount of
advertising space purchased for campaign purposes shall not exceed that allotted to other
political parties or groups that nominated only one set of candidates. The resolution is
challenged as a violation of the freedom of speech and of the press. Is the resolution
constitutionally defensible? Explain.
Yes, the resolution is constitutionally defensible. Under Section 4, Article 9C of the
1987 Constitution, during the election period the Comelec may supervise or regulate the
media of communication or information to ensure equal opportunity, time, and space
among candidates with the objective of holding free, orderly, honest, peaceful, and
credible elections. To allow candidates which are supported by more than one political
party to purchase more air time and advertising space than candidates supported by one
political party only will deprive the latter of equal time and space in the media.

Pre-proclamation controversy
Refers to any question pertaining to or affecting the proceedings of the board of
canvassers which may be raised by any candidate or by any registered political party or
coalition of political parties, before the board or directly with the Commission, or any
matters raised under Sections 233, 234, 235 and 236 in relation to the preparation,
transmission, receipt, custody and appreciation of the election returns.

Upon the expiration of the deadline for the filing of the certificates of candidacy in a special
election called to fill a vacancy in an elective position other than for President and Vice
President, when there is only one (1) qualified candidate for such position, the lone
candidate shall be proclaimed elected to the position by proper proclaiming body of the
Commission on Elections without holding the special election upon certification by the
Commission on Elections that he is the only candidate for the office and is thereby
deemed elected.

Discuss the disputable presumptions of conspiracy to bribe voters.

 Under Sec, 28 of the Electoral Reforms Law proof that at least one voter in different
precincts representing at least twenty per cent of the total precincts in any municipality,
city or province was offered, promised or given money, valuable consideration or other
expenditure by the relatives, leader or sympathizer of a candidate for the purpose of
promoting the candidacy of such candidate, gives rise to a disputable presumption of
conspiracy to bribe voters.

Of the involvement of a candidate and of his principal campaign managers in such

conspiracy.
Under Sec. 28 if the proof affects at least 20% of the precincts of the municipality,
city or province to which the public office aspired for by the favored candidate relates, this
shall constitute a disputable presumption of the involvement of the candidate and of his
principal campaign managers in each of the municipalities concerned, in the conspiracy.

"A" and "B" were candidates for representatives in the 1987 National Elections, "B" filed
a pre-proclamation contest with the COMELEC on the ground that rampant vote buying
and terrorism accompanied the elections. Particulars were supplied of "B's" followers
bought-off and other followers prevented from casting their votes. The COMELEC
dismissed the pre-proclamation contest on the ground that all the returns appear
complete and untampered. Determine if the COMELEC decided correctly and if "B" has
any recourse for contesting "A's" election.
The COMELEC correctly dismissed "B's" PRE- PROCLAMATION CONTEST.
Such a contest is limited to claims that the election returns are incomplete or that they
contain material defects or that they have been tampered with, falsified or prepared under
duress or that they contain discrepancies in the votes credited to the candidates, the
difference of which affects the result of the election.
On the other hand, the question whether or not there was terrorism, vote buying
and other irregularities in the elections cannot be the subject of a pre-proclamation
contest but must be raised in a regular election protest. Since the basis of "B's" petition
is that his followers had been bought while others had been prevented from casting their
ballots, his remedy is to file an election contest and this should be brought in the House
or Senate Electoral Tribunal which, under Art. 6, Sec. 17, is the sole judge of the election,
returns and qualifications of members of each House of Congress.

In election law, what is a pre- proclamation controversy? Where may it be litigated with
finality? After the ultimate winner has been duly proclaimed, does the loser still have any
remedy to the end than he may finally obtain the position he aspired for in the election?
Explain.
A PRE-PROCLAMATION CONTROVERSY refers to any question pertaining to or
affecting the proceedings of the board of canvassers which may be raised by any
candidate or by any registered political party or coalition of political parties before the
board or directly with the COMELEC, or any matter raised under secs. 233-236 of the
Omnibus Election Code in relation to the preparation, transmission, receipt, custody or
appreciation of the election returns.
 The COMELEC has exclusive jurisdiction of all pre-proclamation controversies. Its
decisions become executory after the lapse of 5 days from receipt by the losing party of
the decision, unless restrained by the Supreme Court.
A loser may still bring an election contest concerning the election, returns, and
qualifications of the candidate proclaimed. In the case of elective barangay officials, the
contest may be filed with the municipal trial courts; in the case of elective municipal
officials, in the Regional Trial Court; in the case of elective provincial and city officials, in
the Comelec (Art. 9C, sec. 2(2)); in the case of Senators or Congressmen, in the Senate
or House Electoral Tribunals (Art. VI, sec. 17); and in the case of the President and Vice
President, in the Presidential Electoral Tribunal. (Art. VII, sec. 4).

State how (a) pre-proclamation controversies, on the one hand, and (b) election protests,
on the other, are initiated, heard and finally resolved.
PRE-PROCLAMATION CONTROVERSIES
a) Questions affecting the composition or proceedings of the board of canvassers may
be initiated in the board of canvassers or directly with the Comelec.
b) Questions involving the election returns and the certificates of canvass shall be brought
in the first instance before the board of canvassers only, (Section 17, Republic Act No,
2166.)
c) The board of canvassers should rule on the objections summarily. (Section 20,
Republic Act No. 7166.)
d) Any party adversely affected may appeal to the COMELEC. (Section 20. Republic Act
No. 7166.)
e) The decision of the Commission Election may be brought to Supreme Court on
certiorari by aggrieved party, (Section 7, Article 9A of the Constitution.)
All pre-proclamation controversies pending before the Comelec shall be deemed
terminated at the beginning of the term of the office involved and the rulings of the board
of canvassers shall be deemed affirmed, without prejudice to the filing of an election
protest. However, the proceedings may continue when on the basis of the evidence
presented so far, the Comelec or the Supreme Court determines that the petition appears
to be meritorious. (Section 16, Republic Act No. 7166).

Give three issues that can be properly raised and brought in a pre- proclamation contest.
According to Section 243 of the Omnibus Election Code, the following issues can
be properly raised.
1. The composition or proceedings of the board of canvassers are illegal;
2. The canvassed election returns are incomplete, contain material defects, approved to
be tampered with, or contain discrepancy in the same returns or in other authenticated
copies;
3. The election returns were prepared under duress, threats, coercion, or intimidation, or
they are obviously manufactured or not authentic; and
4. Substitute or fraudulent returns in controverted polling places were canvassed, the
results of which materially affected the standing of the aggrieved candidate or candidates.
However, according to Section 15 of the Synchronized Election Law no pre-proclamation
cases shall be allowed on matters relating to the preparation, transmission, receipt,
custody and appreciation of the election returns or the certificates of canvass with respect
to the positions of President, Vice-President, Senator and Member of the House of
Representatives. No pre-proclamation case are allowed in the case of barangay
elections.

The 1st Legislative District of South Cotabato is composed of General Santos and three
municipalities including Polomolok. During the canvassing proceedings before the District
Board of Canvassers in connection with the 2007 congressional elections, candidate MP
objected to the certificate of canvass for Polomolok on the ground that it was obviously
manufactured, submitting as evidence the affidavit of mayoralty candidate of Polomolok.
The Certificate of canvass for General Santos was likewise objected to by MP on the
basis of the confirmed report of the local NAMFREL that 10 elections returns from non-
existent precincts were included in the certificate. MP moved that the certificate of
canvass for General Santos be corrected to exclude the results from the non-existent
precincts. The District Board of Canvassers denied both objections and ruled to include
the certificate of canvass. May MP appeal the rulings to the COMELEC? Explain.
No. Comelec’s Jurisdiction over pre- proclamation cases pertains only to elections
of regional, provincial and city officials. (Sec. 15, RA 7166) – No pre-proclamation cases
in election of national officials. For purposes of the elections for President, V-President,
Senator and Member of the House of Representatives, no pre- proclamation cases shall
be allowed on matters relating to the preparation, transmission, receipt, custody and
appreciation of the election returns or the certificates of canvass, as the case may be.

Election protest
Sec. 249. Jurisdiction of the Commission. - The Commission shall be the sole judge of all
contests relating to the elections, returns, and qualifications of all Members of the
Batasang Pambansa, elective regional, provincial and city officials.
Sec. 250. Election contests for Batasang Pambansa, regional, provincial and city offices.
- A sworn petition contesting the election of any Member of the Batasang Pambansa or
any regional, provincial or city official shall be filed with the Commission by any candidate
who has duly filed a certificate of candidacy and has been voted for the same office, within
ten days after the proclamation of the results of the election.
Sec. 251. Election contests for municipal offices. - A sworn petition contesting the election
of a municipal officer shall be filed with the proper regional trial court by any candidate
who has duly filed a certificate of candidacy and has been voted for the same office, within
ten days after proclamation of the results of the election.
Sec. 252. Election contest for barangay offices. - A sworn petition contesting the election
of a barangay officer shall be filed with the proper municipal or metropolitan trial court by
any candidate who has duly filed a certificate of candidacy and has been voted for the
same office, within ten days after the proclamation of the results of the election. The trial
court shall decide the election protest within fifteen days after the filing thereof. The
decision of the municipal or metropolitan trial court may be appealed within ten days from
receipt of a copy thereof by the aggrieved party to the regional trial court which shall
decide the case within thirty days from its submission, and whose decisions shall be final.
Sec. 253. Petition for quo warranto. - Any voter contesting the election of any Member of
the Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility
or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto
with the Commission within ten days after the proclamation of the results of the election.
Any voter contesting the election of any municipal or barangay officer on the ground of
ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for
quo warranto with the regional trial court or metropolitan or municipal trial court,
respectively, within ten days after the proclamation of the results of the election.
Sec. 254. Procedure in election contests. - The Commission shall prescribe the rules to
govern the procedure and other matters relating to election contests pertaining to all
national, regional, provincial, and city offices not later than thirty days before such
elections. Such rules shall provide a simple and inexpensive procedure for the
expeditious disposition of election contests and shall be published in at least two
newspapers of general circulation.
However, with respect to election contests involving municipal and barangay offices the
following rules of procedure shall govern:
Notice of the protest contesting the election of a candidate for a municipal or barangay
office shall be served upon the candidate by means of a summons at the postal address
stated in his certificate of candidacy except when the protestee, without waiting for the
summons, has made the court understand that he has been notified of the protest or has
filed his answer hereto;
The protestee shall answer the protest within five days after receipt of the summons, or,
in case there has been no summons from the date of his appearance and in all cases
before the commencement of the hearing of the protest or contest. The answer shall deal
only with the election in the polling places which are covered by the allegations of the
contest;
Should the protestee desire to impugn the votes received by the protestant in other polling
places, he shall file a counter-protest within the same period fixed for the answer serving
a copy thereof upon the protestant by registered mail or by personal delivery or through
the sheriff;
The protestant shall answer the counter-protest within five days after notice;
Within the period of five days counted from the filing of the protest any other candidate
for the same office may intervene in the case as other contestants and ask for affirmative
relief in his favor by a petition in intervention, which shall be considered as another
contest, except that it shall be substantiated within the same proceedings. The protestant
or protestee shall answer the protest in intervention within five days after notice;
If no answer shall be filed to the contest, counter-protest, or to the protest in intervention,
within the time limits respectively fixed, a general denial shall be deemed to have been
entered;
In election contest proceedings, the permanent registry list of voters shall be conclusive
in regard to the question as to who had the right to vote in said election.
Sec. 255. Judicial counting of votes in election contest. - Where allegations in a protest
or counter-protest so warrant, or whenever in the opinion of the court the interests of
justice so require, it shall immediately order the book of voters, ballot boxes and their
keys, ballots and other documents used in the election be brought before it and that the
ballots be examined and the votes recounted.
Sec. 256. Appeals. - Appeals from any decision rendered by the regional trial court under
Section 251 and paragraph two, Section 253 hereof with respect to quo warranto petitions
filed in election contests affecting municipal officers, the aggrieved party may appeal to
the Intermediate Appellate Court within five days after receipt of a copy of the decision.
No motion for reconsideration shall be entertained by the court. The appeal shall be
decided within sixty days after the case has been submitted for decision.
Sec. 257. Decision in the Commission. - The Commission shall decide all election cases
brought before it within ninety days from the date of their submission for decision. The
decision of the Commission shall become final thirty days after receipt of judgment.
Sec. 258. Preferential disposition of contests in courts. - The courts, in their respective
cases, shall give preference to election contests over all other cases, except those of
habeas corpus, and shall without delay, hear and, within thirty days from the date of their
submission for decision, but in every case within six months after filing, decide the same.
Sec. 259. Actual or compensatory damages. - Actual or compensatory damages may be
granted in all election contests or in quo warranto proceedings in accordance with law.
Sec. 260. Notice of decisions. - The clerk of court and the corresponding official in the
Commission before whom an election contest or a quo warranto proceeding has been
instituted or where the appeal of said case has been taken shall notify immediately the
President of the Philippines of the final disposition thereof. In election contests involving
provincial, city, municipal, or barangay offices, notice of such final disposition shall also
be sent to the secretary of the local sanggunian concerned. If the decision be that none
of the parties has been legally elected, said official shall certify such decision to the
President of the Philippines and, in appropriate cases, to the Commission.

In an election protest involving the position of Governor of the Province of Laguna

between "A", the protestee, and "B", the protestant, the First Division of the COMELEC
rendered a decision upholding B's protest. Can "A" file a petition for certiorari with the
Supreme Court under Rule 65 of the Rules of Court, from the decision of the COMELEC
First Division? If yes. Why? If not what procedural step must he undertake first?
"A" cannot file a petition for certiorari with the Supreme Court. As held, the
Supreme Court cannot review the decisions or resolutions of a division of the Comelec.
"A" should first file a motion for reconsideration with the Comelec en banc.

A filed a protest with the House Electoral Tribunal questioning the election of B as Member
of the House of Representatives in the 1987 national elections on the ground that B is not
a resident of the district the latter is representing. While the case was pending. B accepted
an ad-interim appointment as Secretary of the Department of Justice. May A continue
with his election protest in order to determine the real winner in the said elections? State
your reason.
No, A may not continue with his protest. There is no dispute as to who was the
winner in the election, as it is not disputed that it was B who obtained the majority. The
purpose of the protest is simply to seek the removal of B from office on the ground that
he is ineligible. However, B forfeited his claim to the position of congressman by accepting
an ad interim appointment as Secretary of Justice, the protest against him has become
moot. Nothing will be gained by resolving it. In a case, it was held that where a protestant
in an election case accepted his appointment as judge, he abandoned his claim to the
public office involved in the protest. Hence, the protest must be dismissed for having
become moot. The claim of a petitioner to an appointive office had become moot, because
the petitioner had forfeited his claim to the office by filing a certificate of candidacy for
mayor.

Under the Omnibus Election Code (B.P. 881, as amended), briefly differentiate an
election protest from a quo warranto case, as to who can file the case and the respective
grounds therefor.
An Election protest maybe filed by a losing candidate for the same office for which
the winner filed his certificate of candidacy. A quo warranto case may be filed by any voter
who is a registered voter in the constituency where the winning candidate sought to be
disqualified ran for office.
In an election contest, the issues are: (a) who received the majority or plurality of
the votes which were legally cast and (b) whether there were irregularities in the conduct
of the election which affected its results.
In a quo warranto case, the issue is whether the candidate who was proclaimed
elected should be disqualified because of ineligibility or disloyalty to the Philippines.

Differentiate an election protest from an action for quo warranto.

An election protest is a proceeding whereby a losing candidate for a particular
position contests the results of the election on grounds of fraud, terrorism, irregularities
or illegal acts committed before, during or after the casting and counting of votes. On the
other hand, a petition for quo warrranto is filed by any registered voter to contest the
election of any candidate on grounds of ineligibility or disloyalty to the Republic of the
Philippines.

As counsel for the protestant, where will you file an election protest involving a contested
elective position:
In accordance with Section 2(2), Article 9C of the Constitution an election protest
involving the elective position enumerated below should be filed in the following courts or
tribunals:
In the barangay?
Metropolitan Trial Court, Municipal Circuit Trial Court, or Municipal Trial Court.
The Municipality?
Regional Trial Court.
The Province?
Comelec.
City?
Comelec.
The House of Representatives?
Under Section 17, Article 6 of the Constitution, an election protest involving the
position of Member of the House of Representatives shall be filed in the House of
Representatives Electoral Tribunal.

In the elections of May 1992, Cruz and Santos were the candidates for the office of
Municipal Mayor, the term of which was to expire on June 30, 1995. Finding that he won
by a margin of 20 votes, the Municipal Board of Canvassers proclaimed Cruz as the duly
elected Mayor. Santos filed an election protest before the Regional Trial Court (RTC)
which decided that it was Santos who had the plurality of 30 votes and proclaimed him
the winner. On motion made, the RTC granted execution pending the appeal of Cruz to
the Comelec and on this basis. Santos assumed office and served as Municipal Mayor.
In time, the Comelec reversed the ruling of the RTC and instead ruled that Cruz won by
a margin of 40 votes and proclaimed him the duly elected Municipal Mayor. It is now
beyond June 30, 1995. Can Cruz still hold office for the portion of the term he has failed
to serve? Why?
As held, Cruz can no longer hold office for the portion of the term he failed to serve
since his term has expired.

Due to violence and terrorism attending the casting of votes in a municipality in Lanao del
Sur during the last 8 May 1995 elections, it became impossible to hold therein free, orderly
and honest elections. Several candidates for municipal positions withdrew from the race.
One candidate for Mayor petitioned the Comelec for the postponement of the elections
and the holding of special elections after the causes of such postponement or failure of
elections shall have ceased. How many votes of the Comelec Commissioners may be
cast to grant the petition? Explain.
According to Section 7, Article 9A of the 1987 Constitution, the Comelec shall
decide by a majority vote of all its members any case or matter brought before it. In a
case, the Supreme Court stated that a two-to-one decision rendered by a Division of the
Comelec and a three-to-two decision rendered by the Comelec en banc was valid where
only five members took part in deciding the case.

A person who was not a candidate at the time of the postponement of the elections
decided to run for an elective position and filed a certificate of candidacy prior to the
special elections. May his certificate of candidacy be accepted? Explain.
No, his certificate of candidacy cannot be accepted. Under Section 75 of the
Omnibus Election Code, as a rule in cases of postponement or failure of election no
additional certificate of candidacy shall be accepted.

Suppose he ran as a substitute for a candidate who previously withdrew his candidacy,
will your answer be the same? Explain.
No, the answer will be different. Under Section 75 of the Omnibus Election Code,
an additional certificate of candidacy may be accepted in cases of postponement or failure
of election if there was a substitution of candidates; but the substitute must belong to and
must be endorsed by the same party.

An election protest is initiated by filing a protest containing the following allegations:

1. The protestant is a candidate who duly filed a certificate of candidacy and was voted
for in the election:
2. The protestee has been proclaimed; and
3. The date of the proclamation.
The following have jurisdiction over election contests:
a) Barangay officials - Inferior Court;
b) Municipal officials - Regional Trial Court;
c) Regional, provincial, and city officials - Comelec (Section 2(2), Art. 9C of the
Constitution);
d) Congressman - House of Representatives Electoral Tribunal.
e) Senators - Senate Electoral Tribunal. (Section 1. Article VI of the Constitution);
f) President and Vice President - Supreme Court (Section 4, Article 7 of the Constitution).

The decision of the inferior court in election contests involving barangay officials and of
the Regional Trial Court in election contests involving municipal officials are appealable
to the COMELEC. (Section 2(2). Article 9C of the Constitution.) The decision of the
COMELEC may be brought to the Supreme Court on certiorari on questions of law.
The decision of the COMELEC in election contests involving regional, provincial
and city officials may be brought to the Supreme Court on certiorari (Section 7, Article 9A
and Section 2(2), Article 9C of the Constitution.)
The decisions of the Senate Electoral Tribunal and of the House of
Representatives Electoral Tribunal may be elevated to the Supreme Court on certiorari if
there was grave abuse of discretion.

Despite lingering questions about his Filipino citizenship and his one-year residence in
the district, Gabriel filed his certificate of candidacy for congressman before the deadline
set by law. His opponent, Vito, hires you as lawyer to contest Gabriel’s candidacy. Before
Election Day, what action or actions will you institute against Gabriel, and before which
court, commission or tribunal will you file such action/s? Reasons.
File with COMELEC in division, a petition to deny due course or to cancel
Certificate of Candidacy within 25 days from the time of filing of the COC on the ground
of material representation contained in the certificate is false; or file a petition with the
COMELEC in division to cancel the COC because he is a nuisance candidate. There must
be a showing that:
a. The COC was filed to put the election process in a mockery or disrepute
b. Cause confusion among voters by similarity of names of registered candidates
c. By other circumstances or acts which demonstrate that a candidate has no bona fide
intention to run for the office for which his certificate of candidacy has been filed, and
thus prevent a faithful determination of the true will of the electorate.

If, during the pendency of such action/s but before election day, Gabriel withdraws his
certificate of candidacy, can he be substituted as candidate? If so, by whom and why? If
not, why or why not?
No. when the candidate who withdraws is an independent candidate, he cannot be
substituted. Under the law, if after the last day for the filing of certificates of candidacy, an
official candidate of a registered or accredited political party dies, withdraws or is
disqualified for any cause, only a person belonging to, and certified by, the same political
party may file a certificate of candidacy to replace the candidate who dies, withdrew or
was disqualified not later than mid-day of the day of the election (sec.76, OEC).
Since there is no showing in the present case that Gabriel is a member of a
registered political party, in no moment could he be substituted if he withdraws his COC.
If the action/s instituted should be dismissed with finality before the election, and Gabriel
assumes office after being proclaimed the winner in the election, can the issue of his
candidacy and/or citizenship and residence still be questioned? If so, what action or
actions may be filed and where? If not, why not?
Yes, a petition for quo warranto may be filed with the House of Representative
Electoral Tribunal questioning his eligibility to continue to hold such elective position.
A quo warranto proceeding may be filed by any citizen of the Philippine questioning the
eligibility of an elective officer with respect to his continued possession of the
qualifications of age, citizenship, and residency, as the case may be. Should the action
prosper and a decision be rendered against the elective official, the latter shall be
removed from office leaving the position vacant.
Moreover, the Sole judge to hear and decide concerning the election, returns and
qualification of the members of the House of Representative is the HRET. The HRET
shall have jurisdiction over the election contest when the candidate has been proclaimed,
taken his oath and assumed to office.

Quo warranto

In connection with the May 1987 Congressional elections, Luis Millanes was prosecuted
for and convicted of an election offense and was sentenced to suffer imprisonment for six
years. The court did not impose the additional penalty of disqualification to hold public
office and of deprivation of the right of suffrage as provided for in Section 164 of the
Omnibus Election Code of the Philippines (B.P. Blg. 881). In April 1991, the President
granted him absolute pardon on the basis of a strong recommendation of the Board of
Pardons and Parole. Then for the election in May 1992, Luis Millanes files his certificate
of candidacy for the office of Mayor in his municipality. What is the effect of the failure of
the court to impose the additional penalty?
No need to expressly impose – they are accessory penalties.

Is the pardon valid?

The pardon is void, since Luis Millanes was convicted for the commission of an
election offense and his pardon was not made upon the recommendation of the
COMELEC. Under Article IX, C, Sec. 5 of the Constitution, no pardon for violation of an
election law may be granted without the favorable recommendation of the COMELEC.

During his campaign sortie in Barangay Salamanca, Mayor Galicia was arrested at a PNP
checkpoint for carrying high-powered firearms in his car. He was charged and convicted
for violation of the COMELEC gun ban. He did not appeal his conviction and instead
applied for executive clemency. Acting on the favorable recommendation of the Board of
Pardons and Parole, the President granted him pardon. Is he eligible to run against for
an elective position?. Explain Briefly.
Mayor Galicia can run again for an elective office but not immediately. Under
Section 40 of the Local Government Code, he cannot run for an elective office within two
(2) years after serving sentence. Under Section 12 of the Omnibus Election Code, he can
run for an elective national office after the expiration of five (5) years from his service of
sentence. The pardon granted to him is invalid. The offense involved a violation of the
Omnibus Election Code and the pardon was granted without the favorable
recommendation of the Commission on Elections. (Section 5, Article IX-C of the
Constitution).

What is your understanding of the principle of idem sonans as applied in the Election
Law?
Under Rule No. 7 of the rules for the appreciation of ballots in Section 211 of the
Omnibus Election Code, the idem sonans rule means that a name or surname incorrectly
written which, when read, has a sound similar to the name or surname of a candidate
when correctly written shall be counted in his favor.

What is a "stray ballot"?

Under Rule No. 19 of the rules for the appreciation of ballots in Section 211 of the
Omnibus Election Code, stray ballot is one cast in favor of a person who has not filed a
certificate of candidacy or in favor of a candidate for an office for which he did not present
himself. Although the Code does not provide for stray ballot, it is presumed that stray
ballot refers to stray vote.

No XVI. Suppose the people of a province want to recall the provincial governor before
the end of his three-year term of office:
A. On what ground or grounds can the provincial governor be recalled?
B. How will the recall be initiated?
C. When will the recall of an elective local official be considered effective?
In accordance with Section 69 of the Local Government Code, the Governor can
be recalled for LOSS OF CONFIDENCE.
Under Section 70 of the Local Government Code, the recall may be initiated by a
resolution adopted by a majority of all the members of the preparatory recall assembly,
which consists of all the mayors, the vice-mayors, and the sangguniang members of the
municipalities and component cities, or by a written petition signed by at least twenty-five
per cent (25%) of the total number of registered voters in the province.
According to Section 72 of the Local Government Code, the recall of an elective
local official shall take effect upon the election and proclamation of a successor in the
person of the candidate receiving the highest number of votes cast during the election on
recall.

Suppose A, a Municipal Mayor, went on a sick leave to undergo medical treatment for a
period of four (4) months. During that time. Will B, the Municipal Vice-Mayor, be
performing executive functions? Why?
Since the Municipal Mayor is temporarily incapacitated to perform his duties, in
accordance with Section 46(a) of the Local Government Code, the Municipal Vice-Mayor
shall exercise his powers and perform his duties and functions. The Municipal Vice-Mayor
will be performing executive functions, because the functions of the Municipal Mayor are
executive.

Will B at the same time be also performing legislative functions as presiding officer of
the Sangguniang Bayan? Why?
 The Municipal Vice-Mayor cannot continue as presiding officer of the Sangguniang
Bayan while he is acting Municipal Mayor. In accordance with Gamboa v. Aguirre, 310
SCRA 867 (1999), under the Local Government Code, the Vice-Municipal Mayor was
deprived of the power to preside over the Sangguniang Bayan and is no longer a member
of it. The temporary vacancy in the office of the Municipal Mayor creates a corresponding
temporary vacancy in the Office of the Municipal Vice-Mayor when he acts as Municipal
Mayor. This constitutes inability on his part to preside over the sessions of the
Sangguniang Bayan.

The Vice Mayor of a municipality filed his certificate of candidacy for the same office in
the last elections. The Municipal Mayor was also running for re-election. Both were official
candidates of the same political party. After the last day for the filing of certificates of
candidacy, the Mayor died. Under these facts. Can the Vice Mayor succeed to the office
of Mayor pursuant to the provisions of the Local Government Code? Explain.
Yes, the vice mayor can succeed to the office of mayor. Under Section 44 of the
Local Government Code, he stands next in line to the office of mayor in case of a
permanent vacancy in it. His filing of a Certificate of Candidacy for Mayor did not
automatically result to his being considered resigned (Sec. 67, Omnibus Election Code).

Assuming that the Vice Mayor succeeds to the position of Mayor after the incumbent died,
which position is now different from the one for which he has filed his certificate of
candidacy, can he still continue to run as Vice Mayor? Explain.
Yes, the vice mayor can continue to run as vice mayor. At the time that he filed his
certificate of candidacy, the vice mayor ran for the same office he was holding. In
determining whether a candidate is running for a position other than the one he is holding
in a permanent capacity and should be considered resigned, it is the office he was holding
at the time he filed his certificate of candidacy should be considered.

Is there any legal impediment to the Vice Mayor to replace the re-electionist Mayor who
died? Explain.
There is no legal impediment to the vice mayor running as mayor to replace the
vice mayor who died under Section 77 of the Omnibus Election Code, if a candidate dies
after the last day for filing certificates of candidacy, he may be replaced by a person
belonging to his political party. However, it is required that he should first withdraw his
Certificate of Candidacy for Vice-Mayor and file a new Certificate of Candidacy for Mayor.

A vacancy occurred in the sangguniang bayan of a municipality when X, a member, died.

X did not belong to any political party. To fill up the vacancy, the provincial governor
appointed A upon the recommendation of the sangguniang panlalawigan. On the other
hand, for the same vacancy, the municipal mayor appointed B upon the recommendation
of the sangguniang bayan. Which of these appointments is valid?
As held in Farinas v. Barba, 256 SCRA 396 (1996), neither of the appointments is
valid. Under Section 45 of the Local Government Code, in case of a permanent vacancy
in the Sangguniang Bayan created by the cessation in office of a member who does not
belong to any political party, the Governor shall appoint a qualified person recommended
by the Sangguniang Bayan. Since A was not recommended by the Sangguniang Bayan,
his appointment by the Governor is not valid. Since B was not appointed by the Governor
but by the Municipal Mayor, his appointment is also not valid.

Governor Diy was serving his third term when he lost his governorship in a recall election.
Who shall succeed Governor Diy in his office as Governor?
The candidate who received the highest number of votes in the recall will succeed
Governor Diy (Section 72 of the Local Government Code).

Can Governor Diy run again as governor in the next election?

Yes, because recall election is an interruption of the consecutiveness of the term
of office it cannot be counted. A recall election is a mid-way election and the term is not
completed when one is conducted. The third term of Governor Diy should not be included
in computing the three-term limit.

Can Governor Diy refuse to run in the recall election and instead resign from his position
as governor?
Governor Diy cannot refuse to run in the recall election. He is automatically
considered as a duly registered candidate. (Section 71, Local Government Code).

On august 8, 2008, the Governor of Bohol died and Vice-Governor Cesar succeeded him
by operation of law. Accordingly, Benito, the highest ranking member of the Sangguniang
Panlalawigan was elevated to the position of Vice- Governor. By the elevation of Benito
to the Office of Vice-Governor, a vacancy in the Sangguniang Panlalawigan was created.
How should the vacancy be filled?
The vacancy shall be filled in the following manner:
1. If Benito is affiliated with a political party, the vacancy in the Sangguiniang
Panlalawigan shall be filled by a nomination and certificate of membership of the
appointee from the highest official of the political party. (must be filled with someone who
belongs to the political party to maintain the party representation as willed by the people
in the election).
2. If Benito is not affiliated with a political party, the vacancy shall be filled by the
PRESIDENT through the executive secretary.