ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Election Laws
Q. What is the basis for the phrase “people choose their
officials?”
It is based on the sovereign will or power of the people.
DEFINITION OF ELECTIONS .........................................................................1
HOW ARE ELECTION LAWS CONSTRUED..................................................... 2
CLASSIFICATION OF ELECTION.................................................................... 2
SYSTEMS OF ELECTION ............................................................................... 3
CONSTITUTIONAL BASIS FOR ELECTION...................................................... 4
ELECTIVE OFFICIALS.................................................................................... 4
Q. What does the phrase “for the time being” mean?
It means power is and should be temporary. Why? Because
absolute power corrupts and it corrupts absolutely.
PART I – ELECTIVE OFFICIALS
PRESIDENT
HOW ELECTED, TERM OF OFFICE AND TERM LIMIT .....................................4
QUALIFICATIONS .........................................................................................5
VICE-PRESIDENT
HOW ELECTED, TERM OF OFFICE AND TERM LIMIT .....................................9
BASIS FOR PROCLAMATION OF PRESIDENT & VP .......................................9
PRESIDENTIAL SUCCESSION IN CASE OF VACANCY.................................. 10
PERMANENT DISABILITY OF THE PRESIDENT ............................................ 11
RESIGNATION OF THE PRESIDENT ............................................................ 12
VACANCY IN THE OFFICE OF THE VP, HOW FILLED ....................................13
VACANCY IN BOTH THE P AND VP, HOW FILLED ........................................ 14
SENATORS
HOW ELECTED, TERM OF OFFICE AND TERM LIMIT ...................................14
Q. What does the phrase “definite and fixed period” mean?
It refers to the term of office, which means a fixed and definite
period of time which the law describes that an officer may hold an
office.
It is the time during which an officer may claim to hold office as a
matter of right, and fixes the interval after which the several
incumbents shall succeed one another.
Q. How is election defined in its ordinary or common use?
It is voting which includes the act of receiving and casting the
ballots, counting them and making the return.
MEMBERS OF THE HOUSE OF REPRESENTATIVES
Q. What does “election returns” mean?
The result from each polling place.
PARTY-LIST
In the polling place, you cast your vote. In one polling place, there
are 32 ballots. You are going to count them. If it’s manual, you see
a taras or kahon. Then at the end, it is totalled in numbers. This is
the election returns
NUMBER, HOW ELECTED, TERM OF OFFICE ..............................................15
THREE-TERM LIMIT ....................................................................................17
VACANCY IN THE SENATE OR HOUSE OF REPS ......................................... 22
PARTY-LIST REPRESENTATIVES OR NOMINEES ..........................................22
VACANCY IN THE SENATE OR HOR ............................................................ 26
ELECTIVE LOCAL OFFICIALS
TERM OF OFFICE AND TERM LIMIT............................................................ 26
QUALIFICATIONS ...................................................................................... 27
SK OFFICIALS ............................................................................................29
VACANCY IN ELECTIVE LOCAL OFFICES ..................................................... 34
DATE OF ELECTIONS.................................................................................. 34
ADJUSTMENT OF PRE-ELECTION REQUIREMENTS ....................................34
NATURE OF BARANGAY ELECTIONS .........................................................34
POSTPONEMENT OF ELECTION .................................................................35
FAILURE OF ELECTION............................................................................... 36
SPECIAL ELECTION ....................................................................................39
Precinct means address or territory.
Polling place means classroom where you vote.
Voting center means the school where your polling place is.
Returns mean polling precincts.
HISTORY OF SUFFRAGE ............................................................................41
SUFFRAGE FOR OVERSEAS ABSENTEE VOTERS ......................................... 41
SUFFRAGE FOR LOCAL ABSENTEE VOTERS ................................................ 42
SUFFRAGE FOR DISABLED AND ILLITERATE VOTERS.................................. 42
VOTER’S REGISTRATION ........................................................................... 42
SYSTEM OF CONTINUING REGISTRATION ................................................. 43
QUALIFICIATIONS AND DISQUALIFICATIONS ............................................ 43
DEACTIVATION & CANCELLATION OF REGISTRATION ................................44
INCLUSION AND EXCLUSION PROCEEDINGS ...........................................44
Name of winners are then included in a document called Certificate
of Canvass and Proclamation (COCP).
PART II — SUFFRAGE
PART III. THE COMMISSION ON ELECTIONS
COMPOSITION, QUALIFICATIONS, TERM OF OFFICE ................................46
POWERS AND FUNCTIONS ....................................................................... 47
ADMINISTRATIVE POWERS
ADMINISTER AND ENFORCE ALL ELECTION LAWS ....................................47
CONDUCT PLEBISCITE, INITIATIVE, REFERENDUM, RECALL .......................48
DECIDE ALL QUESTIONS AFFECTING ELECTIONS .......................................49
DEPUTIZE OTHER GOVERNMENT AGENCIES ............................................. 50
REGISTER POLITICAL PARTIES AND PARTY-LIST ..........................................50
SUPERVISE OR REGULATE FRANCHISES OR TRANSPO.............................. 51
INVESTIGATE AND PROSECUTE .................................................................52
If in one municipality, there are 50 polling places, so there are 50
election returns. If you consolidate the election returns into one.
That is called canvassing. So this document is now called, the
Certificate of Canvass (COC).
Q. How is election defined in the context of the Constitution?
It refers to the conduct of polls including registration, campaign,
casting, counting and canvassing of votes.
This process actually refers to the election period.
Taule v. Santos
Facts:
The Secretary of Local Government nullified the election of
federation officers on ground of irregularity. It was argued that
jurisdiction over election contests involving election of federation
officer belongs to Comelec.
JURISDICTION OVER ELECTION CONTESTS ...............................................53
POWER TO ISSUE EXTRAORDINARY WRITS ...............................................54
CONTUMACY POWERS .............................................................................54
JURISDICTION OF EN BANC OR DIVISION ................................................ 54
Held:
The jurisdiction of the Comelec is limited to popular election only,
which is the embodiment of the popular will, the expression of the
sovereign power of the people. It involves the choice or selection of
candidates to public office by popular vote as opposed to election
of federation officers. In Constitutional context, it is the conduct of
polls, including registration, campaign, casting, counting and
canvassing of votes. None of these characterizes the federation
election.
PART I – ELECTIVE OFFICIALS
When you talk about the Federation of election officers, the
Comelec has no jurisdiction; the role of the Comelec is
supervisory, merely an observer. If there is anything that you want
to change in the Federation of election officers, you don’t go to
Comelec, you don’t go to the Secretary of the Local Government,
you go to the regular courts. That’s the jurisdiction.
LEGISLATIVE POWERS
RULE-MAKING POWER .............................................................................52
SUSPENSION OF RULES OF PROCEDURE ................................................. 53
JUDICIAL POWERS
QUASI-JUDICIAL POWERS
DEFINITION OF ELECTIONS
Q. How do you define election?
If you scan all the laws related to election, you cannot find a
provision that actually define election. Strange, right? Where can
we find the definition of election law? We found it in jurisprudence.
What does jurisprudence say?
It is the means by which the people choose their officials for a
definite and fixed period and to whom they entrust for the time
being, the exercise of the powers of government.
To me, this definition is actually very classic, classic not only
because it was promulgated way back in 1918 and also classic
because it actually captures the essence of elections. The words
there actually define every step of the process of the elections.
Q. What are the “means” to choose officials?
Either manual or automated system.
! | UNIVERSITY OF SAN CARLOS
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COMMENTS:
• What happened here was there was a federation officers election
(SK). Every barangay there is an SK Chair, and all Sk Chair
from all barangay come together and they elect the federation
officers. That is the federation officers election.
• In this case it was not about the SK but about the ABC. But there
is no such term as Barangay Captain as in law we call them
Punong Barangay, not Kapitan..not Kap.
• Because of irregularities, the DILG nullified the election. They
argued that you have no right to nullify because election gani,
comelec jud na.
• In other words, if its federation officials gani and wala nag directly
vote ang mga botante, that is not under the jurisdiction of
COMELEC;
• What is the role of the COMELEC when we elect ABC Officers?
The comelec is only there to supervise, to observe but it has no
jurisdiction. The jurisdiction belongs to the DILG
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Javier v. Comelec
Facts:
Javier challenged the proclamation of Pacificador by the Comelec
Second Division on the ground that it should be done by the en
banc pursuant to the Constitution. Pacificador argued that at the
time the complaint was filed, it was still in the nature of a preproclamation controversy hence may be resolved by a division in
the exercise of its administrative power to enforce election laws
relative to election, return and qualifications.
Held:
Under the Constitution, the term “election” should be interpreted in
its totality, that it refers to the conduct of polls, registration of
voters, campaign and the casting and counting of votes. In making
the Comelec the sole judge of all contests involving the election,
returns and qualifications of Members of Congress, the
Constitution intended to give it full authority to hear and decide
these cases from beginning to end and on all related matters,
including those arising before the proclamation of winners.
PURPOSE OF ELECTIONS
Lino Luna v. Rodriquez
The purpose of elections in a democratic society is to give the
voters a direct participation in the affairs of their government,
either in determining who shall be their public officials or in
deciding some question of public interest; and for that purpose all
the legal voters should be permitted, unhampered and
unmolested, to cast their ballot.
PURPOSE OF ELECTION LAWS
Rulloda v. Comelec
Facts: A widow substituted her deceased husband as candidate for
Punong barangay and obtained the highest number of votes. But it
was voided because substitution is allowed in barangay elections,
it being non-partisan. As such, there is no political party from which
a substitute is designated.
Held:
The absence of provision for substitution in barangay elections does
not mean it is prohibited. Such interpretation ignores the purpose
of elections laws which is to give effect to, rather than frustrate, the
will of the voters.
COMMENTS:
• The widow did not file a COC, but she merely wrote the
COMELEC law department that she will replace her husband.
So election…nidaog sya. So the losing party questioned it
contending that she is not a legitimate party because she did not
file a COC.
• Technicalities aside, somebody won, the people have spoken
respect that.
• It treated the letter to the law department as the COC. In other
words, it liberalize the rules.
Caveat: please do not use this as precedent because today
COMELEC is very strict. The moment you file your COC, that’s the
only time you are considered as a candidate. Without a COC you
can never be a candidate.
HOW ARE ELECTION LAWS CONSTRUED
Carlos v. Angeles
Facts:
The proclamation of a mayor was nullified by the lower court on
account that he won through significant badges of fraud like
mismatch of keys to the padlocks, empty ballot boxes, boxes with
election returns, delay in counting due to brownout, absence of
watchers during counting.
Held:
These did not affect the integrity of the ballots. Election contests
involve public interest and technicalities should not impeded the
determination of the true will of the people.
Frivaldo v. Comelec
Facts:
A candidate for governor was disqualified because he did not
reacquire his Filipino citizenship at the time he filed his COC and
at the time of election.
Held:
Citizenship need not be possessed at the time of filing of COC or
election, but must be at the start of the term. In case of doubt,
election laws are liberally and construed in favor of the sovereign
will. In applying election laws, it would be far better to err in favor
of popular sovereignty than to be right in complex but little
understood legalisms.
COMMENTS:
! | UNIVERSITY OF SAN CARLOS
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• This was the time of Marcos, and he was anti- Marcos. As he
could no longer stand the dictatorship, he went to the US,
renounced his Philippine citizenship. He became a US citizen.
• However, when Cory Aquino came to power, he came back, ran
for governor once or twice, and won twice. On the third time,
there was a disqualification case filed against him contending
that at the time he filed his COC, he was not yet a Filipino
Citizen, he did not reacquire his Philippine citizenship.
• At the start of term lang niya na reacquire iyang Philippine
citizenship; and again, the SC liberalized.
Caveat: Do not use this as precedent because today, comelec’s
very strict. You will be disqualified when you lack the necessary
qualifications at the time of the filing of the COC.
It’s only here that when we construe election laws, the purpose is
only to give life to the sovereign will or choice of the people.
Technicalities aside.
I AM SO INLOVE WITH THIS STATEMENT. So well written. That’s
my one liner for this case.
CLASSIFICATION OF ELECTION
Q. What are the kinds of election?
1. Regular elections – refers to one provided by law on such
dates at regular intervals for the election of officers either
nationwide or in certain subdivisions.
2. Special elections – refers to one held to fill a vacancy
before the expiration of the full term for which the
incumbent was elected. It is also held when there is failure
of election.
If there is vacancy in the office (eg. Congressman has
permanent disability, death), we fill it out by special
election. What if the vacancy occurs in the office of the
governor/mayor, there is no election because the remedy is
succession. There is also another kind of special election if
there is failure of election. If election fails in a municipality
for example, then that has to be postponed and reset to
another date and that another date is now the special
election.
Q. If a congressman, in the middle of the term, died. How are
we going to replace him?
There cannot be succession because there are no other person
that can succeed. There cannot be appointment. What you hold is
special election.
Q. If it is the Mayor who died in the middle of the term?
The remedy is succession. The Vice Mayor becomes the Mayor.
No special election.
Q. What if it is the Councilor who died in the middle of the
term?
The remedy is not succession because all the eight councilors
have equal footing. One cannot succeed the other. It is not
election, it is not succession. It is appointment.
Q. What is failure of elections?
Failure of election means that in one polling place, nobody voted.
In other words, the number of registrants or registered voters can
still affect the result of the elections. Then, you declare failure of
elections.
When there is failure of elections, we conduct a special election.
Q. Is the Sangguniang Kabataan election regular or special?
Neither, based on the definition of a regular and special election.
COMMENTS:
There was a protest but the RTC nullified the proclamation on the
basis that his victory was done through badges of fraud such as:
- the keys to the ballot box were mismatched: the fact that you
cannot open that meaning it is so safe and secured
- there were empty ballot boxes: what of it? We are not going to
count an empty ballot box.
- Boxes without election returns: if there is no election returns,
no problem. In the same way that if you see a PCOS machine
somewhere else, don't be alarmed. It's useless. A PCOS
machine without a memory card is like a cellphone without a
sim card. But people speculate. Ø Delay in counting due to
brownout: if there is a brownout or power interruption, the best
thing to do is stop the counting. If there is power again,
resume the counting.
- Absence of watchers during counting: it is not the fault of the
COMELEC if the watchers disappeared during the counting
because the proceedings inside the polling place continue
with or without the watchers.
• The Supreme court said: These did not affect the integrity of the
ballots.
• If the watchers believe that there are irregularities inside the
polling place, the proper thing to do is file a written protest and
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
must be received by the BEI (teachers). Once received, give to
the lawyer for the election protest later on.
• The watchers are actually the lawyers inside the polling place.
Election contests involve public interest and technicalities
should not defeat the determination of the true will of the people.
The Supreme court said the the RTC is without jurisdiction to
nullify the proclamation.
Paras v. Comelec
Facts: A Punong barangay was subject of a recall election that was
scheduled within a year prior to the SK election, which also falls
on the second year of the term of office of local elective officials.
Section 74 of the LGC prohibits recall election within a year from
assumption of office and within a year immediately preceding the
next regular local election.
Held:
If the SK election was a regular election, there would be no more
recall election because it always falls within the second year of
term of office, the only time when a recall election is allowed.
Thus, the next regular must refer to one where the office of the
official sought to be recalled is contested. The SK election is not a
regular election because its members do not even possess
suffrage under the Constitution.
Q. What are the SKs?
The SK is nothing more than a youth organization. Its elected
officers are not one of those enumerated as elective local officials
under the law.
Before the members of the SKs are at least 15 and below 18. And if
you are below 18, you are not yet a registered voter. You have no
suffrage yet.
But the SK Reform Act, that might partially changed this. Because
the SK Reform Act now says that below 18 are members of the
KK (Katipunan ng Kabataan). But, the KK is now going to be
composed of at least 15 years old but not over 30 years old on
election day. And under the SK Reform Act, you can run if you are
18 years old to not more than 24 years old on election day.
COMMENTS:
• In this case, there was a punong barangay subject of a recall
election. On the year na ma recall unta sya, there was also an SK
election. Sec 74 of the LGC says, yes there can be a recall
election. However, you cannot do that within the year from the
assumption of office and within the year following the next regular
election.
• In this case, the SK election was held on the 2nd year. And that
2nd year was supposedly the only time he can recall an elective
official. The result is you can never recall an elective official. How
did the supreme court ruled? If the SK election is a regular
election, there will be no recall election because it always falls on
the 2nd year of the term of office.
• The SK officials is not one of those enumerated as public officials.
In this case, Justice Davide said that the SK is nothing but a mere
youth organization which jurisdiction falls under the DILG and not
the COMELEC.
Q. What are the requisites of special election after failure of
election?
Lucero v. Comelec
• In this case, there is a polling place which results were snatched.
That is a ground where you can say there is failure of election.
But in that polling place, there were a maximum of 213 votes.
There is still a possibility where you can still overcome the first
placer. What if the 2nd placer got 213 votes then he can still
overcome the first placer. Keyword: statistically probable.
• The COMELEC now reset the election and had a special election
for that polling place. The winner said the COMELEC has no
authority because the law says if you want to reset the election,
it must be reasonably close to the election upheld. What
happened in this case is it is only after 2 years that had the
special election. The supreme court answered that there are 2
requisites for holding a special election.
• One there is failure of election. In this case, ni fail man jud ang
election – gi snatch ang ballot. Even though there was voting in
the polling place, but the results which embody the proceedings
in the voting can no longer be found.
• Second, the failure affects the results of the election. In other
words, even if we give everything to the 2nd placer, does it
affect the results? Is it still statistically probable?
• In this case, these 2 conditions were met. So the court granted
the special election. Another argument was it's too late of the
day – it's been 2 years. The law says reasonably close. The
supreme court said it is your fault. Your lawyers had legal
maneuvers that delayed the proceedings.
SYSTEMS OF ELECTION
Q. What are the systems of election?
1. Manual system of election
2. Automated system of election
Manual system of election.
B.P 881 or the Omnibus Election Code
Automated Election System (AES)
R.A 8436 as amended by R.A. 9369
Manual count during automated election.
R.A. 8436, Section 9
R.A 9369, Section 11
COMMENTS:
Even though we are automated nationwide, still the barangay
elections remain manual. The reason is there is no need for
transmission. Why? In barangay elections, including SK, the
winners are proclaimed within the barangay only.
Q. Can there be manual count during an automated election?
Loong v. Comelec
Facts:
During the first automated election in ARMM, the counting
machines in the Province of Sulu could not accurately read the
official ballots because the ovals opposite the names of candidates
were misaligned. In 5 municipalities, the official ballots were
rejected because of incorrect sequence codes. Thus, Comelec
ordered a manual count which was opposed on the ground that
under the automation law, automated counting is mandatory. The
remedy is not manual count but replacement of defective counting
machines.
Facts:
Two candidates for district representative were separated by a mere
175 votes. But no election was done in one polling place with 213
voters due to ballot snatching. But the leading candidate
questioned the authority of the Comelec to call for a special
election after almost two years.
Held:
Manual counting during automated election is not prohibited by law.
The Constitutional grant of the power to “enforce and administer all
laws and regulations relative to the conduct of elections” is so
broad as to cover all the necessary and incidental powers for it to
achieve the objective of holding a free, orderly, honest, peaceful
and credible elections.
Held:
There are two requisites for holding a special election:
1. There is failure of election
2. Failure affects the results of the election
COMMENTS:
• There are glitches and the system can detect it. In this case,
because of the misalignment of the ovals, if you vote for
candidate A, the vote goes to candidate B. In 5 municipalities,
the ballots were rejected because in automation, dili jud masaag
ang ballots. The COMELEC said okay, dili man ta ka count
accurately, manual count nalang ta. It was opposed. How can
there be manual count in automated elections? The supreme
court said manual count in automated elections is not prohibited
by law. In the first place, automated elections is not mandatory.
If you read the law, it says “Congress authorizes COMELEC to
automate the elections”. It did not say mandates but merely
authorizes. Manual elections is the last resort. It is always
possible.
• If you insist on automated counting, the result is inaccurate –
does not reflect the true will of the people.
Since only 175 votes separate them, the 213 votes in the polling
place where election failed could still affect the results of the
election. Hence, it is still statistically probable for the special
election to affect or change the final result of the election.
The delay is not attributable to the voters of the polling place where
election failed but to the legal maneuvers of parties. Thus, the
holding of the special election almost two years after the regular
election is still “reasonable close to the date of election not held.”
COMMENTS:
The problem is nagdaog na. But the difference is only 175 votes.
• Precinct – that is your territory. That is your address, your sitio,
your barangay, your neighborhood.
• Voting Center – the school
• Polling place – the classroom where you actually vote
! | UNIVERSITY OF SAN CARLOS
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Q. Can the COMELEC manual count the votes?
A: Yes, it can because there is no specific prohibition under the law.
The Constitution grants the power to administer and enforce
election laws is so broad as to cover all the necessary procedural
powers to achieve the objective of free and orderly elections. The
COMELEC, being the administrative body, is authorized to do
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
snap judgments during elections because the candidates do not
follow “Emelie Pose”. Who is “Emelie Pose”? She is the writer of
good manners and right conduct.
Q. Who is Emily Post?
She was an American writer in the 1960s. The Supreme Court in
the case of Loong cited her because of the power of the Comelec
which is too broad. The Comelec can actually do snap judgements
(diskarte) in the field. They can do whatever they want for as long
as it is consistent with the law and for as long as there is no
prohibition. And because of this, the Supreme Court said that the
manual counting is part of the “diskarte” of Comelec. And being
“diskarte,” that is part of the broad powers of the Comelec.
In one of the cases the Supreme Court said that Comelec can
actually use its common sense in dealing with the problems in the
field. And then the Supreme Court said the powers of the Comelec
is so broad because the candidates do not follow the rules of
Emily Post.
She is an American writer on chivalry – good manners and right
conduct. The Supreme Court said that if the candidates does not
follow the rules of Emily Post, then the Comelec must be
empowered with broad powers to deal with politicians who are
rude.
Q. Is there a Cordillera Autonomous Region?
Ordillo v. Comelec
Facts: RA 6766 An Act Providing for an Organic Act for the
Cordillera Autonomous Region was enacted and the people of the
provinces of Benguet, Mountain Province, Ifugao, Abra, and
Baguio cast their votes in a plebiscite. Only the Province of Ifugao
approved the creation of the Region, leading to the creation of the
Cordillera Autonomous Region of Ifugao. This was challenged by
the petitioners, alleging that the law requires that the said Region
must be composed of more than one constituent unit.
Issue: Whether the province of Ifugao being the only province
which voted favorably for the creation of the Cordillera
Autonomous Region can, alone legally and validly constitute such
Region.
Ruling: The sole province of Ifugao cannot validly constitute the
Cordillera Autonomous Region. The term region in its ordinary
sense means two or more provinces. Ifugao is a province by itself.
To become part of a region, it must join other provinces, cities,
municipalities, and geographical areas.
COMMENTS:
Q: Is there a cordillera autonomous region?
A: None. There was a plebiscite but out of the provinces, only
Ifugao voted to be part. The SC said the sole province cannot
constitute an autonomous region. There should be at least 2
provinces to constitute a region. This is a statutory construction
case. It would result to absurdity. We have regional and provincial
officials governing same territory and constituency.
CONSTITUTIONAL BASIS FOR ELECTION
7. 776 SP Members
8. 145 City Mayors
9. 145 City Vice Mayors
10. 1,624 SP Memberss
11. 1,489 Municipal Mayors
12. 1, 489 Municipal Vice-Mayors
13. 11,916 SB Members
14. 1 ARMM Regional Governor
15. 1 ARMM Regional Vice Governor
16. 24 ARMM Assemblymen
Total of 18, 083 contested seats
PRESIDENT
HOW ELECTED, TERM OF OFFICE AND TERM LIMIT
HOW ELECTED, TERM OF OFFICE AND TERM LIMIT
1987 Constitution, Article VII, sec. 4(1)
SECTION 4. The President and the Vice-President shall be elected
by direct vote of the people for a term of six years which shall
begin at noon on the thirtieth day of June next following the day of
the election and shall end at noon of the same date six years
thereafter. The President shall not be eligible for any reelection.
No person who has succeeded as President and has served as
such for more than four years shall be qualified for election to the
same office at any time.
Q. How is the President elected? How long is his term of office
and is there a limit to it?
The President and the Vice-President shall be elected by direct
vote of the people for a term of six (6) years which shall begin at
noon of the same date six years thereafter. The President shall
not be eligible for any re-election. No person who has succeeded
as President and has served as such for more than four years shall
be qualified for election to the same office at any time. (Article 7,
Section 4 (1) 1987 Constitution)
Take note:
1. By a direct vote
2. For a term of 6 years
3. Not eligible for any re-election
Q. How do we elect him? By division or at large?
At large
Q. So you mentioned by for six years, how many terms?
1 only
Q. What does the sentence “The President shall not be eligible
for any re-election” mean?
It means that the Presidency is a once in a lifetime opportunity. He
cannot be re-elected either immediately after his term of office or
after an interval of two or more terms.
Q. What is the constitutional basis for election?
A: The Philippines is a democratic state; sovereignty resides in the
people and all government authority emanate from them.
Q. What does the phrase “direct vote” mean?
It means the president is elected by popular vote of the people for
a term of six years.
Article 2, Section 1, 1987 Constitution
The Philippines is a democratic and republican State. Sovereignty
resides in the people and all government authority emanate from
them.
• The president is elected through popular vote. Compare with the
US system of elections. Americans do not directly elect their
president and vice president. They vote through electoral
college. Principle: Winner takes all. Each state has a minimum
of 3 electoral votes. Advantage: avoids concentration of power;
disadvantage: does not reflect popular will
• The presidency is a once in a lifetime opportunity.
• In Pormento v Estrada: How did COMELEC resolved the issue
regarding Estrada's candidacy as president? That provision only
applies to incumbent presidents.
• Furtheremore, there was no TRO. The SC rendered it moot and
academic since Erap already lost to Nonoy.
ELECTIVE OFFICIALS
Q. Who are elective officials?
1. President
2. Vice-President
3. Senators
4. House of Representatives
5. Governors
6. Vice-Governors
7. SP Members
8. ARMM Governors and Vice-Governors
9. ARMM Assemblymen
10. Mayors
11. Vice-Mayors
During the May 9, 2016 elections:
1.
2.
3.
4.
5.
6.
1 President
1 Vice President
12 Senators
238 House of Representatives
81 Governors
81 Vice Governors
! | UNIVERSITY OF SAN CARLOS
4
Comelec Resolution, Jan. 20, 2010, 2nd Division
Q. Did you find the comelec resolution? What did it state?
“The better policy approach is to let the people decide who will
be the next President. For on political questions, this court may
err but the sovereign people will not… Estrada no longer holds a
public office, more importantly, he is no longer the President and
wields none of the vast powers of this position… Because of this
prevailing status, a simple application of the rule will lead any
reasonable and logical person to conclude that the prohibition
against the reelection of the President does not apply to
Estrada.”
Q. But why was Joseph Estrada allowed to run in 2010 after
having been elected in 1998?
The Comelec said that the provision applies to incumbent
presidents only. It said the better policy approach is to let the
people decide who the next president is. For on political
questions, this court may err but the sovereign people will not.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Q. What did the Supreme Court say in Pormento v Estrada?
It declined to exercise its power of judicial review. Since Estrada
already lost in the elections, the issue whether he can still run has
become moot and academic. It is no longer justiciable
Pormento v. Estrada
One liner: The Presidency is a once in a lifetime privilege. - Bernas
Facts: Joseph Estrada was elected as President in the general
elections on May He sought the Presidency again in 2010. A
disqualification case was filed on the ground of the constitutional
provision which states that “The President shall not be eligible for
any re-election”, but such petition was denied by Comelec saying
that the provision applies to incumbent presidents only. It said that
the better policy approach is to let the people decide who the next
president is. For on political questions, this court may err but the
sovereign people will not. Estrada did not win in the said elections.
Issue: What is the proper interpretation of the provision “The
President shall not be eligible for any re-election?
Ruling: The issue is now moot and academic. Since Estrada was
not elected President for the second time, any discussion of his
“re-election” will simply be hypothetical and speculative. It will serve
no useful or practical purpose.
Atty. Guji:
Here it would have been a little difficult to Estrada if Pomento was
able to secure a temporary restraining order and had he been
serious the petitioner SHOULD HAVE filed an injunction which
may have barred Estrada from running and the SC would be
forced to rule on the matter and it would be interesting to see how
the court will rule on the case.
Q. If the Estrada won, what do you think the SC would have
ruled?
“As you can see the Comelec and the SC in this case is hugas
kamay, if Estrada won I think the court will just say “the people
have spoken”.
Q. What did Pormento lack in this case that he could have
done?
File a Temporary Restraining Order (TRO)
Q. Presidency is a once in a lifetime opportunity, do you
agree?
Yes
Q. Is this rule absolute?
No.
Q. What is the exception?
Succession. When he is succeed by the vice president and he did
not finish his term. “No person who has succeeded as President
and has served as such for more than four years shall be qualified
for election to the same office at any time.”
Q. Does it apply to succession only or by election?
Both if by succession more than 4 years have been served
equivalent to 1 term thus no re-election.
Q: Why six years term?
6 years is too short for a bad president and long enough for a good
president. This is actually a reaction to the Marcos regime.
Q: Can the President run again?
No because when you see the phrase “The President shall not be
eligible for any re-election” Does the law distinguish? It does not.
Q. What is the difference of effects of succession on term limit
between the vice president and vice mayor?
Borja v. Comelec
One liner: Succession of the Vice-President to the Presidency for
more than 4 years is counted as one term, whereas succession of
the Vice mayor to the mayorship is not counted as one term for
the purpose of determining term limit.
Facts:
The vice-mayor succeeded the mayor upon the latter’s death by
operation of law. Consequently, he ran and was elected mayor for
another two terms. On his third attempt to run for mayor, a
disqualification case was filed against him, on the ground that he
already served as mayor for three consecutive terms, counting as
one term that he served by virtue of succession.
Issues:
1. Whether a vice-mayor who succeeds to the office of mayor by
operation of law and serves the remainder of the term is
! | UNIVERSITY OF SAN CARLOS
5
considered to have served a term in that office for the purpose
of the three-term limit.
2. How different is the effect of succession on term limit with the
Vice-President.
Ruling:
1. No. If he is not serving a term for which he was elected because
he is simply continuing the service of the official he succeeds,
such official cannot be considered to have fully served the
term. The Constitution provides for succession of the VP as
President in the event of vacancy. It further provides that “No
person who has succeeded as President and has served as
such for more than four years shall be qualified for election to the
same office at any time.”
The absence of a similar provision on elective local officials throws
in bold relief the difference between two cases. It underscores the
intent to cover only the terms of office to which one may have
been elected for purpose of the three-term limit on local elective
officials, disregarding for this purpose service by automatic
succession.
A fundamental tenet of representative democracy is that the people
should be allowed to choose those whom they please to govern
them. To bar the election of a local official because he has already
served three terms, although the first as a result of succession by
operation of law rather than election, would therefore be to violate
this principle.
2. The Vice-President is elected primarily to succeed the President
in the event of the latter’s death, permanent disability, removal or
resignation. While he may be appointed to the cabinet, his
becoming so is entirely dependent on the good graces of the
President. In running for VP, he may this be said to also seek
the President. For their part, the electors likewise choose as
VP the candidate who they think can fill the Presidency in the
event it becomes vacant. Hence, service in the Presidency for
more than four years may rightly be considered as service for a
full term.
This is not so in the case of the Vice-Mayor. Under the LGC, he is
the presiding officer of the Sanggunian and he appoints all officials
and employees of such local assembly. He has distinct powers and
functions, succession to mayorship in the event of vacancy therein
being only one of them. It cannot be said of him, as much as of
the VP in the event of a vacancy in the Presidency that in running
for Vice-Mayor, he also seeks the mayorship. His assumption of the
mayorship in the event of vacancy is more a matter of chance than
of design. Hence, his service in that office should not be counted
in the application of any term limit.
Atty. Guji:
Remember that when we elect the Vice-President we have the
mindset that he/she is a potential President because under the
law the Vice- President does nothing, he/she is a spare part only
in case of the President’s death or permanent disability unless the
President appoints him/her to the cabinet. Unlike that of the ViceMayor who has a specific role under the LGC.
TN: If you are Vice-President and if you are appointed as cabinet
secretary that appointment does not need the confirmation of the
Commission on Appointments. That’s an exemption.
QUALIFICATIONS
QUALIFICATIONS
Art VII, Sec 2, 1987 Constitution
No person may be elected President unless he is a natural-born
citizen of the Philippines, a registered voter, able to read and
write, at least forty years of age on the day of the election, and a
resident of the Philippines for at least ten years immediately
preceding such election.
TN: (CARRL)
1. C- Natural-born citizen of the Phils
2. R - Registered voter
3. L - Able to read and write (Filipino or English)
4. A - At least 40 years old on the day of the election
5. R - Resident of the Phils for at least 10 years, immediately
preceding the elections.
Q. What are the qualifications of the President?
TN: NARRA
1) Natural-born Citizen of the Phils
2) Able to read and write (Filipino or English)
3) Registered voter
4) Resident of the Phils for at least 10 years, immediately
preceding the elections
5) At least 40 years old on the day of the election
Q. Who are citizens of the Philippines?
1. Those who are citizens of the Philippines at the time of the
adoption of this Constitution
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
2. Those whose fathers or mothers are citizens of the
Philippines
3. Those born before January 17, 1973, of Filipino mothers,
who elect Philippine Citizenship upon reaching the age of
majority
4. Those who are naturalized in the accordance with law.
Q. Does that apply to the vice president?
Yes
NATURAL-BORN FILIPINO
Q. Who are natural-born citizens?
Natural-born citizens are those who are citizens of the Philippines
from birth without having to perform any act to acquire or perfect
their Philippine citizenship. Those who elect Philippine citizenship
in accordance with paragraph (3), Section 1 hereof shall be
deemed natural-born citizens.
Q. If you go to the father, is there a chance? Why?
Yes. He became a filipino.
Q. How?
By virtue of Philippine Bill of 1902. En masse filipinazation
Q. What constitution applied for FPJ?
1935 constitution
Q. Who is a natural born filipino citizen?
A natural-born Filipino citizen is one who did not perform any act to
acquire or perfect his Philippine citizenship, except those born
before January 17, 1973 of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority.
FOUNDLING AS NATURAL-BORN
Poe v. Comelec
Q. Natural-born citizens are those who are citizens of the
Philippines from birth without having to perform any act to
acquire or perfect their Philippine citizenship. Is this rule
absolute?
No, because it may be done through election. Article VI, Section 2 of
the 1987 Constitution provides that those born before January 17,
1973 of Filipino mothers who elect Philippine citizenship upon
reaching the age of majority, shall be deemed natural-born
citizens.
One liner: Foundlings are presumed to be natural-born citizens of
the country where they are found.
Fornier v. Comelec
ISSUE: Whether or not Grace Poe a foundling is a natural-born
citizen who is eligible to run for the Presidency
One liner: A natural-born Filipino citizen is one who did not perform
any act to acquire or perfect his Philippine citizenship, except those
born before January 17,, 1973 of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority.
Citizenship is a treasured right conferred on those whom the state
believes are deserving of the privilege. It is a "precious heritage, as
well as an inestimable acquisition," that cannot be taken lightly by
anyone — either by those who enjoy it or by those who dispute it.
Facts:
FPG ran for President but he was sought to be disqualified
because he is not a natural-born Filipino, since his mother was
American and his father, Spanish. Petitioner said that FPG’s father
could not be Filipino because his grandfather was a Spanish
subject. Even if his father was a Filipino, he could not have
transmitted his Filipino citizenship to his son FPG because the
latter is an illegitimate child.
Issue: Whether FPJ is a natural-born Filipino and thus did not
materially misrepresent his COC.
Held:
Yes. To trace, FPJ’s roots – FPJ’s grandpa died in Pangasinan in
1954, it could have been his residence before death and he would
have benefited from the “en masse Filipinization” of the Philippine
Bill in 1902. Having acquired Filipino citizenship, the grandfather
extended it to his son, who is the father of FPJ.
Under Article 4, Section 1 (3) of the 1935 Constitution, the following
are citizens of the Philippines:
(3) Those whose fathers are citizens of the Philippines.
FACTS: Grace Poe run for the 2016 elections and her citizenship
was questioned because she was a front runner and when traced
where she came from it was found out that she was found in Jaro
Church in Iloilo, abandoned. She was registered as a foundling in
the civil registrar of Iloilo and was later on adopted by the spouses
Susan Roces and Fernando Poe Jr.
RULING:
1. She is considered a natural-born Filipino citizen although there
are strong arguments to the contrary such as the “certificate
that she is a foundling” which they considered as an act to
become a Filipino citizen. The SC said that it was not Grace
Poe who did it but the authority where she was found so the act
was not attributable to Grace Poe.
Atty. Guji: Take note: When you say perform an act to acquire
citizenship, it is personal.
2. Another contention is that a foundling was never mentioned in
the 1935 Constitution but it was found out that there plans to
include a provision regarding foundlings but was not included
because of there numbers back then (practically).
Atty. Guji: In other words these are isolated cases before but the
position of the people who drafted the 1935 Constitution was very
clear -> foundling gani ka = natural born ka but because of their
number no need to categorically state them in the Constitution. It is
not express but the intention is there – statutory construction,
“intention prevails over language”.
1. Moreover we are recognizing GAPIL and even if we are not
signatories to these treaties, the rule on foundlings is already
customary International law thus we are bound to follow this
conceptions. In other words the SC said in International
agreements you need not be a signatory to follow them as a
matter of fact there are a lot of Int’l agreements that the
Philippines is not a signatory but it applies to us.
Since FPJ has first seen light under the 1935 Constitution which
confers citizenship to all persons whose fathers are Filipino
citizens regardless of whether such children are legitimate or
illegitimate, he is a natural- born Filipino because he did not need
to perform any act to acquire or perfect his Filipino citizenship.
Atty. Guji’: The biggest problem here was Grace Poe was not only a
foundling but likewise her parents are unknown. Remember he
was forced to exhume some bodies whom she believes are her
relatives to prove filiation.
Atty. Guji:
Actually FPJ’s grandad is not a Spaniard, they are called Spanish
subjects (imagine you are a subject in your own territory).
2. On her adoption, the SC said that if you are adopted it
presupposes that you are a Filipino if you have undergone the
process of adoption chances are you are a Filipino citizen.
Remember the title of the law on adoption is “Adoption of
Filipino Children”.
Philippine Bill of 1902 “en masse Filipinization”
The evidence actually presented to prove FPJ’s citizenship was not
conclusive but even if it is not conclusive the SC believe those
evidences because there are no evidences that would refute the
claims or prove otherwise. In short “He who alleges has the
burden of proof” which is in favor of FPJ compare to the bare
allegations of the opposing party. Thus the SC was constrained to
take credit of the story of FPJ because of preponderance of
evidences because at least he had some evidences as opposed to
the bare allegations of the petitioner.
On FPJ’s illegitimacy, it doesn’t matter because the law does not
distinguish.
Q. Is it enough for one parent to make the child filipino?
Yes
Q. So if you go to the mother, is there a chance?
No.
! | UNIVERSITY OF SAN CARLOS
6
RESIDENCE, DEFINED
Q. How is residence treated under election laws?
Residence is synonymous with domicile.
Marcos v. Comelec
One liner: For election purposes, residence is synonymous with
domicile, that is, a fixed permanent residence to which, when
absent, one has the intention of returning.
Facts: A candidate for district representative wrote in her COC 7
months as her period of residence in the constituency where she
seeks to be elected preceding the election. She was sought to be
disqualified for failure to comply with the one-year residency
requirement because she briefly stayed in the constituency and
resided and even voted in different places for four decades.
Issue: Whether or not Marcos satisfy the constitutional requirement
of Presidency to run as representative of the 1st district of Leyte
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Held: It is the fact of residence, not a statement in the COC that is
decisive whether an individual satisfies the residence requirement.
Domicile means the individual’s permanent home, a place to
which whenever absent for business or pleasure, one intends to
return.
An individual does not lose his domicile even if he has maintained
several residences for difference purposes over a long period of
time. If none of these purposes point unequivocally to an intention
to abandon her domicile of origin, she retains it.
Atty. Guji:
Domicile is otherwise known as the place where you leave your
heart behind.
Take note: For purposes of election Domicile and residence means
the same thing. There are actually 3 types of domicile; 1.) Domicile
of origin, 2.) Domicile of choice, 3.) Domicile by operation of law.
Here Imelda did not lose her domicile of origin because she did
have the intention to return to Leyte it’s just that she need to follow
Ferdinand.
The problem here is that She herself made an admission that she
only resided for a period of 7 months. There is incriminating
evidence.
Q: Do we need to go beyond the face of the COC to justify here
compliance with the requirement of the residency?
Yes because there is a tendency that the candidates can confuse
the word residence with domicile. The SC said that your unilateral
declaration in your COC does not really define who you are so we
need to go beyond the face of the COC.
Q: Why did the SC said “ok lang yan” honest mistake, when the
COC is notarized. How did the SC justified Imelda’s case?
The SC based their decision on her history.
Q. How many years was she a resident?
7 months, which is short of 5 months of residency as required by
the law.
Q. How did Imelda justify this?
Actually she said there, it was an honest mistake.
Q. How did the SC treat that 7 month declaration, did the SC
say that she was a resident of TACLOBAN?
Yes. How come the SC said she is but in fact Imelda herself
unilaterally declared in her COC that she is only a resident for 7
months, how did the SC justify this response? Now actually here,
the SC said, regardless of your unilateral declaration in your COC,
the determination of your period of residence, is not dependent
upon it. It should be based on established facts, of whether or not
you are resident of your place. But here, you cannot move thru
this case, if you don’t pass by the concept that, residence is one
with
domicile for purposes of election.
Q. How do you define domicile?
So even you leave that place for business or pleasure, you
always have that intention to return.
Q. Why? Where did Imelda go? Did she register somewhere
else, aside from Tolosa, in that 4 decade period?
Yes, as a matter of fact she voted. She went wherever Ferdinand
went.
3 kinds of domicile
1. Domicile of origin
Q. Is it necessary that you are born there for that place to be
your domicile of origin?
No. Imelda was in fact 8 years old when her parents brought
her there. So we cannot say that the domicile of origin is
necessarily your place of birth, because as young as 8 years
old you do not have any discretion as to where you want to
go. Thus, domicile of origin may be the place where you were
born, or where you were raised.
2. Domicile by operation of law
Q. When she married Marcos, did she change her domicile by
operation of law?
Because in this case it was established, that she had the
intention to go back. But, marriage operates to change by
operation of law, your domicile, provided if you comply with
the requisites. IN this case, the SC said there is no evidence
to show that Imelda abandoned her domicile.
Q. Did the death of Marcos further strengthen Imelda’s
position that she did not abandon Tacloban? Yes. Why?
The SC said, you cannot compel the wife to still cling on to the
domicile of her dead husband.
! | UNIVERSITY OF SAN CARLOS
7
3. Domicile of choice
So remember, residence is synonymous with domicile. So if
residence is defined as, physical presence in a locality, that
would be sufficient. But since we say that it is synonymous
with domicile, your physical presence in the locality is not
required, as long as you intend to return to that domicile,
provided that is your domicile of origin.
Domino v. Comelec
One-liner: "Residence" as used in the law prescribing the
qualifications for suffrage and for elective office, means the same
thing as "domicile," which requires not only such bodily presence
in that place but also a declared and probable intent to make it
one's fixed and permanent place of abode, one's home.
Facts: Domino ran as Representative in Sarangani, with 1 yr and 2
months as residency in his COC. Comelec disqualified him as his
Voter’s Registration Record negate such. The Constitution
required at least 1 year residency. Domino won, but his
proclamation was put on hold.
Issue: Whether Domino satisfied the residency requirement.
Held: No. The principal elements of domicile, physical presence in
the locality involved and intention to adopt it as a domicile, must
concur in order to establish a new domicile. Domino lacked the
intention to abandon his residence in QC as he registered there as
a voter (then just had it cancelled by a MeTC to effect transfer to
Sarangani). While voting is not conclusive of residence, it does
give rise to a strong presumption of residence especially in this
case where DOMINO registered in his former barangay.
Exercising the right of election franchise is a deliberate public
assertion of the fact of residence, and is said to have decided
preponderance in a doubtful case upon the place the elector claims
as, or believes to be, his residence. While, Domino's intention to
establish residence in Sarangani can be gleaned from the fact that
be bought a house, sought cancellation of his previous registration
in QC and that he applied for transfer of registration, DOMINO still
falls short of the one year residency requirement.
Atty. Guji:
Take note: when you say domicile it has elements, not only
physical presence but intent to reside or return therein to make it
your permanent residence. And the court of Quezon City who
ordered his transfer has no jurisdiction because this is
administrative in nature; the jurisdiction lies with the ERB (Election
registration Board) the court cannot order the transfer.
While property is indicative of residence but intent is a state of mind.
To prove that there must be physical presence which Domino
failed to do, the SC found out that it does not engender the kind of
permanency required under the Constitution.
Take note of the elements for the change of domicile.
Q. How the the SC treat the Contract of Lease (property
evidence)?
It might indicate intention to reside , but it does not engender the
degree of permanency to establish new domicile
Q. How did the SC rule regarding the Exclusion and Inclusion
Proceeding judgment?
Exclusion and inclusion proceeding judgment is not binding to the
COMELEC since it’s a SUMMARY PROCEEDING & MTC’s
jurisdiction is only to identify WON the voter will be included in the
voter’s list in a specific place.
Even if MTC says you are a resident, still not binding cause MTC’s
concern is only on the right to vote.
Q. How did the SC rule with regards to permanency?
The lease contract my be indicative of Domino’s intention to reside
in Sarangani but it does not engender the kind of permanency
required to prove abandonment of one’s original domicile.
Q. What is the requirement for change of Domicile?
1) Animus Manendi coupled with Animus non revertendi
2) Intention = State of Mind
3) how to gauge? Acts / Conduct of the person
Q. What are the requisites for change of domicile?
1) Physical presence
2) Intention to reside
3) Intention not to return
Q. How do you gage intention if it is state of mind?
In actions
Q. There were neighbors who vouched for the residence, what
did they say?
Poe vs Comelec: Period of Residence
SC cited the case of Marcos that even if there is unilateral
declaration on the residence that could have disqualified her, what
is more controlling is the evidence outside of the COC.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
PERIOD OF RESIDENCE
Poe v. Comelec
the welfare of their constituencies; likewise, it enables the
electorate to evaluate the seekers' qualifications and fitness for
the job they aspire for.
Facts: Grace Poe went to the US and renounce her Filipino
citizenship and came back in 2004 to support FPJ and when his
father died she decided to transfer back to the Philippines. She
claims that they transferred here in 2005 (May 25) which she put in
her COC. The Comelec decided against it because it said that she
failed short of 2 months of the 10 year requirement because the
renunciation of her US citizenship should be the one counted (July
2006). Poe defended it by saying that her intentions saying that
when she came back it was already for good. The evidences
presented are the enrollment of her kids, buying and construction
of their house and shipping of their furnitures from the US to the
Philippines.
Facts:
Immediately after being the governor of Misamis Oriental for the
third term, Emano ran as Mayor of CDO, saying in his COC his
residency thereat for 2 yrs and 5 months. Emano asserted under
oath that he was qualified to act as governor until end of his term
and admitted in sworn statements that he was a resident of
Misamis Oriental.
Issue: Whether or not Poe complied with the residence requirement
Emano: I actually and physically resided in CDO while being
Governor, since the seat of provincial government is in CDO.
There is no law preventing an elective official from transferring
residence while in office.
Ruling: Yes because there was no prohibition with balikbayans
even if she has not yet renounces her US citizenship, the intention
to permanently reside in the Philippines was there.
Atty. Guji:
Another problem with Grace Poe was this Not only she was a
foundling but also she renounced her Filipino Citizenship,
repatriated and reacquired the natural-born status.
Take note: that when you are repatriated you revert back to your
original natural-born status.
Q. How did the SC justified this ruling even with the unilateral
declaration that could disqualify her ?
Stated the case of Marcos
- Fact of residency
- Whatever is stated in the COC
- Despite the unilateral declaration her act was not willful and
deliberate
There was no concealment of the fact since the COC became
public document.
It was also acceptable because during the Senatorial election , the
mindset of Grace Poe was just to qualify as a Senatorial candidate
which only requires lower number of years of residency than the
position or Presidency
Q. Generally, what is the reckoning point in computing the years of
residency for somebody who returned to the country ?
GR: (2)
1. Permanent Visa was issued,
2. (one missing )
— EXC: Grace Poe case
Once he/she stepped into the country because the body of
evidences was so overwhelming that she has all the intention to
permanently stay here in the Philippines
Q. Considering Grace Poe period of residence in the COC of
her running as senator wrote that could disqualified her, how
did SC treat that COC?
It was not contested by the petitioner.
If you talk about willful and deliberate, it must show.
Q. What was the evidence that it was not willful and
deliberate?
The fact that she entered it in the COC, she did not CONCEALED
that fact and there was no concealment. It is understandable that
Q. If you’re talking about the evidence to reside in the country,
what should be the reckoning period on WON she complied
with that period? Or what is the general rule if you’re talking
about former citizens coming back?
General Rule:
1) Permanent resident visa
2) Reacquire Philippine Citizenship
Q. Who is in the best position to rule the period?
Candidate himself
Torayno vs Comelec
Rationale of the purpose is from
1) Candidate himself
2) Voter
RATIONALE OF THE RESIDENCE REQUIREMENT
Torayno v. Comelec
One liner: The Constitution and the law requires residence as a
qualification for seeking and holding elective public office, in order
to give candidates the opportunity to be familiar with the needs,
difficulties, aspirations, potentials for growth and all matters vital to
! | UNIVERSITY OF SAN CARLOS
8
Petitioners: Residence is a continuing qualification that an elective
official must possess throughout his term. Thus, private
respondent could not have changed his residence to CDO while he
was still governor of Misamis Oriental.
Issue: Whether Emano acquired a bona fide domicile of choice for
at least 1 year to qualify him to run as Mayor of CDO.
Held:
Yes. The Constitution or the law intends to prevent the possibility of
a stranger or newcomer unacquainted with the conditions and
needs of a community and not identified with the latter from
seeking an elective office to serve that community. Such provision
is aimed at excluding outsiders from taking advantage of favorable
circumstances existing in that community for electoral gain.
Emano could not be said to be a stranger or newcomer.
Atty. Guji:
Rationale:
1. To be familiar with the needs and issues of the community
2. To avoid strangers in so far as the electorate is
concerned to evaluate the seekers' qualifications and
fitness for the job they aspire for.
The problem here is this how will you reconcile the fact that he is
registered somewhere else and his claim that he is also a resident
in the city. Take note: Registration is not equivalent to residence.
Q. What benefit is on the part on the candidate?
Acquaint himself of the area
Q. Benefit on the voter?
Evaluate the qualifications and fitness of the candidate whether he
is deserving
Q. If you transfer residence during your incumbency, IOW you
lost one qualification which is continuing, and he may be
removed because of the lack of qualification by what
process?
File for the removal or quo warranto.
Q. How do you classify Cagayan de Oro?
Highly urbanized City.
If you are the governor, you cannot be part of the city.
Ironic because the Cagayan de Oro is NOT part of the Misamis
Province, but the seat or the capitol is inside the city. Just like here
in Cebu. Cebu City and Lapu-Lapu City is not part of the province
of Cebu but capitol is in the heart of Cebu City.
Q. Would you answer the same if you have not read this case?
Just be honest. ☺
Q. If you transferred during Public office – what is the process
called?
Quo Warranto
COMMENTS:
Because CDO, is a highly-urbanized city, you cannot be part of a
province. IOW, people in highly-urbanized cities cannot vote for
provincial officials. Mandaue city, is highly urbanized, but it
remains part of the province of Cebu, the reason there is prior to
the LGC? Ask Atty. Largo.
There are 2 viewpoints here.
1. The viewpoint of the candidates: you should know the
problems in the locality of where you
are running.
2. The viewpoint of the voter: is to know the qualifications,
credentials, personality, character and everything about
the candidate. You cannot know these things if the
candidate is not residing in the locality.
PROPERTY QUALIFICATION
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Maquerra v. Borra
One liner: The right to vote and be voted for is not dependent upon
the wealth of the individual concerned. Social justice presupposes
equal opportunity for all, rich and poor alike, and that, no person
shall, by reason of poverty, be denied the chance to be elected to
public office.
Facts: Republic Act No. 4421 requires a candidate to post a surety
bond equivalent to one-year salary of the position to which he is a
candidate, which bond shall be forfeited in favor of the
government, if the candidate, except when declared winner, fails to
obtain at least 10% of the votes cast for the office.
Issue: Whether RA 4421 is constitutional.
Held: No. Property qualifications are inconsistent with the nature
and essence of the Republican system ordained in our
Constitution and the principle of social justice underlying the same,
for said political system is premised upon the tenet that sovereignty
resides in the people and all government authority emanates from
them. This implies necessarily that the right to vote and to be voted
for shall not be dependent upon the wealth of the individual
concerned, whereas social justice presupposes equal opportunity
for all, rich and poor alike, and that, accordingly, no person shall,
by reason of poverty, be denied the chance to be elected to public
office.
The effect of said Republic Act No. 4421 is to impose property
qualifications in order that a person could run for a public office,
which property qualifications are inconsistent with the nature and
essence of the Republican system ordained in the Constitution
and the principle of social justice underlying the same.
Consequently, Republic Act No. 4421 is unconstitutional and
hence null and void.
A. To prevent monopoly of power
B. To enhance the freedom of choice
Atty. Guji:
The intention of Congress here was to avoid nuisance candidates
but
It is unconstitutional because of the forfeiture of the money or
property of the candidate if he/she lost which amounts to arbitrary
and oppressive confiscation; and it is contrary to the nature and
essence of social justice that is only the wealthy or those who can
secure the bond that is allowed to run, property qualification.
They say that it is only during elections that Filipinos are equal,
whether you are rich or poor your vote only counts as one (except
if you buy votes ©)
Take note: This particular qualification has no basis in the
constitution. See CARRL. You cannot add qualifications to
candidates who may run for public office by ordinary legislation;
you have to amend the constitution
Nuisance candidates, as an evil to be remedied, do not justify the
adoption of measures that would bar poor candidates from
running for office. Republic Act 4421 in fact enables rich
candidates, whether nuisance or not, to present themselves for
election. Consequently, it cannot be sustained as a valid
regulation of elections to secure the expression of the popular will.
Q. If you require surety bond, that amounts to what kind of
qualification?
Property Qualification
You do not have to pay anything when you file for COC except only
for the documentary tax stamp.
Posting Surety Bond
- becomes a property qualification
- void because it will expand the list of qualification , and we cant
add any requirement unless we will amend the Constitution
itself.
COMMENTS:
• SC the posting of a cash bond is not one of those contemplated
in the Constitution. Why what are the qualifications to be
President? CARRL. The SC said that the enumeration of the
requirements for Presidency are exclusive. You cannot change
by mere legislation. IT needs amendment by the constitution.
• If it is required for you to post a cash bond, and you fail, it is
called a property disqualification.
• Along that line, there is a proposal, that only those taxpayers
should be allowed to vote? Does not make sense, forgetting that
everybody pays taxes everyday. Kanang VAT. Even the poorest
of the poor.
VICE-PRESIDENT
HOW ELECTED, TERM OF OFFICE AND TERM LIMIT
HOW ELECTED
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Article VII, Section 4, 1987 Constitution
The President and the Vice-President shall be elected by direct
vote of the people for a term of six years which shall begin at noon
on the thirtieth day of June next following the day of the election
and shall end at noon of the same date six years thereafter. The
President shall not be eligible for any reelection. No person who has
succeeded as President and has served as such for more than
four years shall be qualified for election to the same office at any
time.
TERM-LIMIT
No Vice-President shall serve for more than two successive terms.
Voluntary resignation of the office for any length of time shall not
be considered as an interruption in the continuity of the service for
the full term for which he was elected.
Q. How do we elect the vice president?
Article VII , Section 4, 1987 Constitution
By direct vote for a term of six years. (same process as the
President)
By national election and direct vote.
Q. What about the term limit?
2 terms
Shall not serve for more than 2 consecutive terms (not cumulative
but successive).
May be re-elected or can run again as long as there is an interval
between the term.
(eg. 2 successive terms — relax sa for a term — run again)
Q. Is that successive or cumulative?
Successive
Q. So are you saying he can be president more than 2 terms?
Yes as long as there is an interval
Q. So if you ran as VP and won 2 terms then an interval
happens than you ran again. Can you run again for the 4th
time?
Yes. There was an interval.
Q. When does the term of office start?
Noon of June 30 you call it “start of term” beyond that like 12:01pm,
it marks the actual term of office, it already belongs to the “midterm” - the period between the start and the end of term.
Q. When can you say that the person is a President/ VP-elect?
Has been elected (won and proclaimed) but has not yet assumed
office
Q. Grounds for Pres. Vacancy at the Middle of Term?
A: P*R*R*D Atty’s Tip: President Rodrigo Roa Duterte =)
P-ermanent Disability
R-esignation
R-emoval from Office
D-eath
QUALIFICATIONS
The Vice-President shall have the same qualifications and term of
office and be elected with and in the same manner as the
President. He may be removed from office in the same manner as
the President.
Q. How is voluntary renunciation defined in Aldovino v.
Comelec?
It is an act of surrender based on the free will or loss of title to office
by free choice. It is an act of abandonment that emanates from the
author.
Q. Does preventive suspension interruption the term of
office?
NO. Preventive suspension does not involve loss of title to office
hence it cannot interrupt the term of office.
Q. How do you illustrate the sentence “No person who has
succeeded as President and has served as such for more
than four years shall be qualified for election to the same
office at any time?”
Joseph Estrada assumed the Presidency on June 30, 1998, but
was forced by People Power II to step down on January 2001.
Thus, he served for only 2 years and 6 months, leaving a balance
of 3 years and 6 months from his 6-year term as president.
Gloria Arroyo succeeded and served for 3 years and 6 months. Since
she did not serve for more than 4 years, she was able to run and
win the Presidency in 2004.
BASIS FOR PROCLAMATION OF PRESIDENT & VP
Article VII, Section 4 (5), 1987 Constitution
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
The person having the highest number of votes shall be proclaimed
elected, but in case two or more shall have an equal and highest
number of votes, one of them shall forthwith be chosen by the vote
of a majority of all the Members of both Houses of the Congress,
voting separately.
The Supreme Court, sitting en banc, shall be the sole judge of all
contests relating to the election, returns, and qualifications of the
President or Vice-President, and may promulgate its rules for the
purpose.
Q. Who shall be declared winner?
The person having the highest number of votes shall be proclaimed
elected.
Q. How is a tie resolved?
By a vote of a majority of all the Members of both Houses of the
Congress, voting separately.
WINNER DEFINED
Rudolla v. Comelec
One-liner: The winner is the candidate who has obtained a majority
or plurality of valid votes cast in the election.
Facts: A widow substituted her deceased husband as candidate for
Punong Barangay and obtained the highest number of votes. But it
was voided because substitution is not allowed in barangay
elections, it being non-partisan. As such, there is no political party
from which a substitute is designated.
Issue: Can the widow be proclaimed as the duly elected Brgy
Chairman?
Held: Yes, as it was she who obtained the plurality of votes in the
contested election. Technicalities and procedural niceties in
election cases should not be made to stand in the way of the true
will of the electorate. Absence of any provision governing
substitution of candidates in barangay elections cannot be inferred
as a prohibition against it. As doing so would ignore the purpose of
election laws which is to give effect to, rather than frustrate, the
will of the voters.
In case of doubt, political laws must be so construed as to give life
and spirit to the popular mandate freely expressed through the
ballot. In all republican forms of government the basic idea is that,
no one can be declared elected and no measure can be declared
carried unless he or it receives a majority or plurality of the legal
votes cast in the election.
PRESIDENTIAL SUCCESSION IN CASE OF VACANCY
VACANCY AT THE START OF THE TERM
Article VII, Section 7&8, 1987 Constitution
Section 7. The President-elect and the Vice President-elect shall
assume office at the beginning of their terms.
If the President-elect fails to qualify, the Vice President-elect shall
act as President until the President-elect shall have qualified.
If a President shall not have been chosen, the Vice President-elect
shall act as President until a President shall have been chosen
and qualified.
If at the beginning of the term of the President, the President-elect
shall have died or shall have become permanently disabled, the
Vice President-elect shall become President.
Where no President and Vice-President shall have been chosen or
shall have qualified, or where both shall have died or become
permanently disabled, the President of the Senate or, in case of
his inability, the Speaker of the House of Representatives, shall
act as President until a President or a Vice-President shall have
been chosen and qualified.
The Congress shall, by law, provide for the manner in which one
who is to act as President shall be selected until a President or a
Vice-President shall have qualified, in case of death, permanent
disability, or inability of the officials mentioned in the next
preceding paragraph.
Section 8. In case of death, permanent disability, removal from
office, or resignation of the President, the Vice-President shall
become the President to serve the unexpired term. In case of
death, permanent disability, removal from office, or resignation of
both the President and Vice-President, the President of the
Senate or, in case of his inability, the Speaker of the House of
Representatives, shall then act as President until the President or
Vice-President shall have been elected and qualified.
The Congress shall, by law, provide who shall serve as President in
case of death, permanent disability, or resignation of the Acting
President. He shall serve until the President or the Vice-President
shall have been elected and qualified, and be subject to the same
restrictions of powers and disqualifications as the Acting
President.
• If the President-elect fails to qualify – The Vice-President-elect
shall act as President until the President-elect shall have
qualified.
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• If a President shall not have been chosen – The VicePresident- elect shall act as President until a President shall
have been chosen and qualified.
• If at the beginning of the term of the President, the
President-elect shall have died or shall have become
permanently disabled – The Vice-President-elect shall become
President.
• Where no President and Vice-President shall have been
chosen or shall have qualified, or where both shall have
died or become permanently disabled – The President of the
Senate or, in case of his inability, the Speaker of the House of
Representatives shall act as President until a President or a
Vice-President shall have been chosen and qualified.
Q. When the Vice Pres assumes the office of the President when
the latter has not been chosen yet, what is his title?
Only Acting President as this is only temporary in character. As
opposed to when the VP replaces the Pres due to death or
permanent disability, the VP really becomes the President as it is
permanent in character.
Q. Why did the Constitution contemplate the situation of “if
the President shall not have been chosen”?
Because the Constitution contemplates of a situation when there
has been no proclamation yet at start of the term of office.
Q. When is the start of the term of office?
Noon of June 30, following the day of elections.
Q. What about if it was 12:01 noon of June 30, is that still start
of term?
No.
Q. What do you call the period of time if it is not the term?
Term of office
Q. When does it end?
At the same day, 6 years after.
Q. What do you call the period in between the start and end of
term?
Middle of the term (Midterm)
Start of term: at the stroke of 12:00.
Any time beyond that (12 noon) is the midterm already.
Q. Why is there such period of time before you start the term of
office from the day of election (2nd Monday of May)?
The reason why we were given this time from the 2nd Monday of
May until June 30 is to give the election officers ample time to
canvass election returns from all over the country. So with this in
mind, in relation to the provision, during this period, there probably
might not have a President chosen yet.
Remember that the 1987 Constitution was drafted at such a time
wherein election returns are canvassed manually. The process of
counting them might be slow or could take a long period of time.
Q. What vacates the presidency at the start?
1) If the President-elect fails to qualify
2) If a President shall not have been chosen
3) If at the beginning of the term of the President, the
President-elect shall have died or shall have become
permanently disabled
4) Where no President and Vice-President shall have been
chosen or shall have qualified, or where both shall have
died or become permanently disabled
Q. When you say failure to qualify, what does it mean?
Failure to take the oath of office.
Q. President has not been chosen, what is the situation there?
No proclamation of president because there may still be
canvassing of vote.
Q. In case of death or permanent disability, who becomes the
president?
Vice president
Q. Does he become acting president or president?
President
Q. What about his failure to qualify?
Merely acting as president
Q. What is president elect and vice president elect?
They have been elected but have not yet taken the oath of office or
assumed the office.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
VACANCY ON MID-TERM
Presidential succession, in case of vacancy on mid-term
Art VII, Sec 8, 1987 Constitution
In case of death, permanent disability, removal from office, or
resignation of the President, the Vice-President shall become the
President to serve the unexpired term.
In case of death, permanent disability, removal from office, or
resignation of both the President and Vice-President, the
President of the Senate or, in case of his inability, the Speaker of
the House of Representatives, shall then act as President until the
President or Vice-President shall have been elected and qualified.
The Congress shall, by law, provide who shall serve as President in
case of death, permanent disability, or resignation of the Acting
President. He shall serve until the President or the Vice-President
shall have been elected and qualified, and be subject to the same
restrictions of powers and disqualifications as the Acting
President.
• In case of death, permanent disability, removal from office,
or resignation of the President – The Vice-President shall
become the President to serve the unexpired term.
• In case of death, permanent disability, removal from office,
or resignation of both the President and Vice-President –
The Senate President or, in case of his inability, the Speaker of
the House of Representatives, shall then act as President until
the President or Vice-President shall have been elected and
qualified.
Q. Causes that vacate presidency at the middle term?
PRRD (Pres Rod Roa Duts)
1) Permanent Disability (change this to Inability of the President)
2) Removal from office (Impeachment)
3) Resignation or Voluntary Renunciation
4) Death
Q. Can a President be suspended?
No. He can only be impeached or be removed from office.
Q. Are all of these causes permanent?
Yes. Hence, the Vice President who replaces the President due to
the above causes, he shall really become the President, not as
Acting President.
Q. When you resign, can you take it back after?
No. Once the President resigns, it is permanent.
Q. When is the middle of the term?
Any moment after President assumed office at noon of June 30
following the day of elections.
Q. When can you say that a person is a President-elect?
He is the President that was already elected. When we say elected,
it means he won in the elections and was already proclaimed. BUT
he has not yet assumed office.
Because once you assumed office at the noon of June 30 following
the day of elections, you are already the President.
Q. If both president and president suffers incapacity?
Senate president shall act as acting president.
Q. Why not president?
There will be a special election for the position of president.
If there is vacancy, it is filled by virtue of succession by the VP.
EXCEPT when both P and VP suffers PRRD, it is the speaker of
the house that succeeds as acting president while a special
election proceeds.
Q. Does the senate president become president or acting?
Acting
Q. What happens if all 4 (Pres, VP, Senate Pres, Speaker of
House) suffers PRRD?
Special election
Q. What if the cabinet declares he is unable, but president
says he is able, what does he need to do?
Declare that there is no inability
When President transmits to the Senate President and to the
Speaker of the House his written declaration that no inability exists
– He shall reassume the powers and duties of his office.
PERMANENT DISABILITY OF THE PRESIDENT
PERMANENT DISABILITY OF THE PRESIDENT
Article VII, Section 11, 1987 Constitution
Section 11. Whenever the President transmits to the President of
the Senate and the Speaker of the House of Representatives his
written declaration that he is unable to discharge the powers and
! | UNIVERSITY OF SAN CARLOS
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duties of his office, and until he transmits to them a written
declaration to the contrary, such powers and duties shall be
discharged by the Vice-President as Acting President.
Whenever a majority of all the Members of the Cabinet transmit to
the President of the Senate and to the Speaker of the House of
Representatives their written declaration that the President is
unable to discharge the powers and duties of his office, the VicePresident shall immediately assume the powers and duties of the
office as Acting President.
Thereafter, when the President transmits to the President of the
Senate and to the Speaker of the House of Representatives his
written declaration that no inability exists, he shall reassume the
powers and duties of his office. Meanwhile, should a majority of all
the Members of the Cabinet transmit within five days to the
President of the Senate and to the Speaker of the House of
Representatives, their written declaration that the President is
unable to discharge the powers and duties of his office, the
Congress shall decide the issue. For that purpose, the Congress
shall convene, if it is not in session, within forty-eight hours, in
accordance with its rules and without need of call.
If the Congress, within ten days after receipt of the last written
declaration, or, if not in session, within twelve days after it is
required to assemble, determines by a two-thirds vote of both
Houses, voting separately, that the President is unable to
discharge the powers and duties of his office, the Vice-President
shall act as President; otherwise, the President shall continue
exercising the powers and duties of his office.
• Whenever the President transmits to the Senate President
and the Speaker of the House his written declaration that he
is unable to discharge the powers and duties of his office –
Such powers and duties shall be discharged by the VicePresident as Acting President.
• Whenever a majority of all the Members of the Cabinet
transmit to the Senate President and to the Speaker of the
House their written declaration that the President is unable
to discharge the powers and duties of his office – The VicePresident shall immediately assume the powers and duties of
the office as Acting President.
• When President transmits to the Senate President and to the
Speaker of the House his written declaration that no
inability exists – He shall reassume the powers and duties of
his office.
• If majority of all the Members of the Cabinet transmit within
five days to the Senate President and to the Speaker of the
House their written declaration that the President is unable
to discharge the powers and duties of his office – The
Congress shall decide the issue by a vote of 2/3 of both Houses,
voting separately.
Q: If the President is unable (or joke! too lazy) to perform his
functions, what should he do?
A: Transmit a written declaration to the Senate President and the
Speaker of the House that he is unable to discharge the power
and functions of his office.
Whenever the President transmits to the Senate President and the
Speaker of the House his written declaration that he is unable to
discharge the powers and duties of his office – Such powers and
duties shall be discharged by the Vice-President as Acting
President.
Q: What if he is unwilling to admit that he is unable to
discharge the power and duties of his office, who will be the
proper party to raise the same?
Majority of all the Members of the Cabinet. They’ll transmit a written
declaration on the same ground.
Whenever a majority of all the Members of the Cabinet transmit to
the Senate President and to the Speaker of the House their
written declaration that the President is unable to discharge the
powers and duties of his office – The Vice-President shall
immediately assume the powers and duties of the office as Acting
President.
Q. What if the cabinet members and deny the denial of
president?
If majority of all the Members of the Cabinet transmit within five
days to the Senate President and to the Speaker of the House
their written declaration that the President is unable to discharge
the powers and duties of his office – The Congress shall decide
the issue by a vote of 2/3 of both Houses, voting separately.
Q: If the President claims that there’s no inability that exists
but the Cabinet members repeatedly claims the opposite
(assuming that they don’t like him anymore)?
A: Congress shall decide the issue by a 2/3 vote of both Houses,
voting separately.
Q: When the Congress says that the President is indeed
unable to discharge his functions or that such inability exists,
is it final?
A: Yes, Congress is vested with full discretionary authority to
determine the inability of the President which is beyond the ambit
of judicial review. It is a political judgement such that when the
Court intervenes it will violate the doctrine of separation of powers.
Q. Is that subject to judicial review?
No.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Q: Can it be covered by the Court’s expanded certiorari
jurisdiction?
A: Student says No, for it only applies when there is grave abuse of
discretion resulting to lack or excess of jurisdiction.
Atty. Gujilde says “It may be an exception to the expanded
jurisdiction. But who can stop the SC if they want to intervene?
What’s the remedy?” = IMPEACHMENT
Q. What can correct the SC if it abuses its authority?
Impeachment
Q: Why is it that the Members of the Cabinet are allowed to
assess the status or functions of the President?
A: They are already considered to be part of the official family of
the President. They have the closest access to him. They are
considered as alter-ego of the president.
Another reason: Cabinet members are part of the, they maintain
the closest access to the president.
They are under the control of the president. They are closest to the
president hence, more capable to determine condition of the
president.
ASSIGNMENT: How many Cabinet Members are there?
Estrada v. Desierto
One-liner: The determination of the President’s inability to govern
is determined by Congress and such is a political judgment that
cannot be subject to judicial review.
Facts: Estrada was accused to be a jueteng lord that led to his
impeachment case. Edsa Revolution II ensued with people asking
Estrada’s resignation, and his allies defected (AFP, PNP and most
of his cabinet members). On the day Arroyo took her oath as the
new President, Estrada wrote Senate President and Speaker of
the House that he is unable to exercise Presidential powers and
duties. However, he claims he did not resign as President, but
merely was on leave on the ground that he is unable to govern
temporarily. Despite receipt of letter, the House of Reps and
Senate passed Resolutions expressing support to Arroyo as the
new President.
Issue: Whether SC has jurisdiction to review the claim of temporary
inability of Estrada and thereafter revise the decision of both
Houses of Congress recognizing Arroyo as the new President.
Held: SC does not have jurisdiction. It is Congress that has the
ultimate authority to determine such, and the determination of
Congress is a political judgment which the SC cannot review.
Estrada’s claim had been put to rest by Congress by the latter
declaring Arroyo as the de jure President. Such decision made by
the Congress, a co-equal branch of government, cannot be
reviewed by SC.
Q. Is permanent disability defined?
No.
Q. But can it be declared? How and who declares?
Yes. By 1. The president himself, 2. Congress; 3. Members of
cabinet
Q. Was there really such a letter written/transmitted by
Estrada? Did SC believe there was such letter? How did the
SC take that letter?
SC says letter is wrapped in mystery.
Despite the probative value of letter, it was never mentioned in the
pleadings or oral arguments in the SC. Its probative value could
have exculpated Estrada. That letter never existed. It was a mere
afterthought.
Q. What did the Senate and House of Rep do when Arroyo was
working as president?
Passed a resolution recognizing Arroyo’s oath taking not only
recognizing and congratulating Arroyo — that negates the letter of
Estrada.
RESIGNATION OF THE PRESIDENT
Estrada v. Desierto
One-liner: Estrada’s acts and omissions before, during and after
Arroyo’s oath taking, or taking into account the totality of prior,
contemporaneous and posterior facts and circumstantial evidence
bearing a material relevance on the issue, implied his resignation
from presidency.
Facts:
Estrada claims he did not resign as President, but merely was on
leave on the ground that he is unable to govern temporarily. He
wrote a letter (see above) about it. Further, Estrada relies on RA
No. 3019 (AGACPA) prohibiting his resignation from office. The
circumstances surrounding the case were based on an “Angara
Diary”, where he said, “Ayoko na, masyado nang masakit”.
Negotiations involving Estrada’s resignation and Arroyo’s
assumption took place.
Issue: Whether Estrada has resigned as President before Arroyo
took her oath as President.
Held:
Yes. Elements of resignation are (1) there must be an intent to
resign and (2) the intent must be coupled by acts of
relinquishment. It is not governed by any formal requirement – it
can be oral, written, express or implied. As regards the letter re:
inability to govern, if it was prepared before the press release of the
petitioner clearly showing his resignation from the presidency, then
the resignation must prevail as a later act. If, however, it was
prepared after the press release, still, it commands scant legal
significance.
Petitioner's resignation from the presidency cannot be the subject
of a changing caprice nor of a whimsical will especially if the
resignation is the result of his repudiation by the people. Further,
reliance on RA No. 3019 was misplaced. The intent of the law is to
prevent the act of resignation or retirement from being used by a
public official as a protective shield to stop the investigation of a
pending criminal or administrative case against him and to prevent
his prosecution. But no person can be compelled to render service
if he wants to retire or resign.
Q. Did Estrada really resign? How was it resolved by the SC?
Yes. According to the Supreme Court, there is no formal
requirement as to form in order to effectuate a valid resignation. It
could be oral, written, expressed, or implied. The acts or omission
of Estrada before, during and after January 20, 2001 or in other
words the totality of prior, contemporaneous, and posterior facts
and circumstantial evidences material to the issue were
considered in ruling that he indeed resigned.
Q: Why are members of the cabinet authorized to declare such
disability?
They are under the control of the president. They are closest to the
president hence, more capable to determine condition of the
president.
(Although no formal letter, actions are considered the best index of
intention, his acts can be regarded to as what in Labor is called
“Constructive Resignation” = chikka ni Atty. So ayaw nalang
paobvious haha.)
Q. What is in the law, and is this case applicable?
Law says permanent disability hence Not applicable.
No formal requirement in terms of submitting a resignation letter. It
is not governed by any formal requirement. It can be oral, written,
express or implied.
Q. Did SC believe that there was a letter from Estrada? Why?
No, it didn’t believe because this was a sudden appearance; and at
that time, cabinets were already supporting Arroyo.
If there was indeed a letter, it didn’t matter because, there was
already a resolution issued congratulating the Arroyo as president.
There is an obvious dismatch of the facts presented by Estrada in
his letter declaring his temporary disability as against Sec 11.
Q. What happens if it was settled by Congress?
Congress has the exclusive authority to determine permanent
disability. This is purely a political question which is beyond
reviews by the Supreme Court.
Q. Was there a press release by Estrada other than the letter
saying his temporary disability?
Yes, stating he is stepping down. The fact remains that he didn’t
provide a resignation letter.
! | UNIVERSITY OF SAN CARLOS
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Q. What are the elements of resignation?
Elements of resignation are:
(1) there must be an intent to resign, and
(2) the intent must be coupled by acts of relinquishment.
Q. In this case, SC justified their ruling based on the Angara
Diary which was serialized in which newspaper?
Philippine Daily Inquirer. It gave a window into the mindset of
Estrada that time
Q: How about if it was serialized in tabloids, will the SC
consider it?
No. As compared to tabloids, Philippine Daily Inquirer is very
credible.
Additional chikka: Remate is a tabloid while Philippine Daily
Inquirer is considered a broadsheet)
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Q. Was it about oath taking or was it about the moment he
stepped down of Malacañang?
Moment he stepped down of Malacañang.
There was also a press release thanking the Filipinos etc and
acknowledge the oath taking/proclamation of Arroyo.
Q. What words did he use there in the separation whether
temporarily or?
He did not use term “resign”. He stated that he is just stepped
down.
SC said its not about the formal tender. In the absence of letter,
what we examine is his INTENTION.
Q. What were these acts?
- Press release
- Angara Diary
Q. SC suddenly invoked a diary. SC is not supposed to be a
trier of facts. What newspaper?
Philippine Daily Inquirer
Q. Can it be serialized in other newspaper (like international
version of Banat) or tabloid?
No.
Q. If it is a newspaper like Philippine Daily Inquirer, which is
not a tabloid, what is it called?
It is called Broadsheet.
In the diary of Angara, it gave SC a window into the mindset of
Estrada.
Q. What were these pronouncements?
Snap election
Q. First Premise: Estrada did not file or write a formal
resignation. Despite the absence of letter of resignation, we
deem you resigned because of your acts before, during and
after. What kind of resignation is that? What do you call that
in your labor law?
Constructive Resignation
Remember: When you resign, there is no form in tendering your
resignation. It could be oral, written, implied.
Q. Enumerate the acts/indications that he resigned..
His proposal for a snap election where he would not be a
candidate.
Pagod na pagod na ako. Ayoko na masyado ng masakit LINES..
His concern on the five -day grace period that he could stay in the
palace.
Contents of the negotiations (pls. refer to the full text)
His press release:
- Acknowledging the oath
- taking of PGMA albeit reservation of its legality
- Emphasized that he was leaving the Palace, the seat of
Presidency for the sake of peace and in order to begin the
healing process of the natio
- Expressing his gratitude to the people for the opportunity to
serve them. (reflective of past opportunity given to him)
- keyword to answer: did not use the word resign but “STEP
DOWN”
Q. Why Estrada insists that he is just the President on Leave?
Why does he wants still to be President?
There were cases filed against him & he said that the President is
Immune from suit.
Q. Was the letter presented before the court? DID SC believe
that the letter of Estrada existed?
NO, never presented/mentioned in the pleadings/oral arguments.
The letter is a mere afterthought.
Q. Did Congress expressly state that Estrada is UNABLE to
perform function?
No, they congratulated Arroyo thru resolutionS (plural kay daghan
man).
Q. Was there a chance for the cabinet members to declare the
inability of Estrada?
No, they abandoned the President.
Q. Did the Consti Define inability?
No
Q.What if the President does not admit that he is unable?
! | UNIVERSITY OF SAN CARLOS
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Majority of Cabinet members will transmit a letter to the congress
stating his inability
Q. What is the best evidence that he did not resign, accdg to
ESTRADA?
Absence of resignation letter
Q. Why did the SC say that Estrada effectively resigned?
SC applied the totality tests
Q. How is vacancy in the office of the VP filled?
President nominates then congress confirms
Q. What happens if Congress rejects the one nominated?
Choose another nominee
Q. What if the congress still rejects?
Nominate and nominate again, there is no limit until the congress is
satisfied
VACANCY IN THE OFFICE OF THE VP, HOW FILLED
Article VII, Section 9, 1987 Constitution
SECTION 9. Whenever there is a vacancy in the Office of the VicePresident during the term for which he was elected, the President
shall nominate a Vice-President from among the Members of the
Senate and the House of Representatives who shall assume office
upon confirmation by a majority vote of all the Members of both
Houses of the Congress, voting separately.
Q. How is vacancy in the office of the Vice-President filled?
The President shall nominate a VP from among the Members of
the Congress. Such nomination shall be confirmed by a majority
vote of all the Members of both Houses, voting separately.
Q. What happens if Congress rejects the one nominated?
Choose another nominee
Q. What if the congress still rejects?
Nominate and nominate again, there is no limit until the congress is
satisfied
Q. What if there’s a vacancy in the office of the vice president.
How do you fill it up?
The president will nominate a vice president from the senate And
from the house of the rep
Q. And after the nominations, what happens next?
Congress will confirm the nomination separately
Q. What if the lower house confirms and the upper house
doesn’t confirm? Is there a constitutional basis there? Is the
constitution silent?
Yes. The constitution is silent.
Q. So, if you were the president and the constitution is silent.
What will you do if your nominee is unacceptable to both
houses?
Nominate another.
Estrada v. Desierto
One-liner: Upon nomination for VP of the President from among
the Congress members, both Houses of Congress shall confirm
such by voting separately.
Facts: After assumption into office, Pres. Arroyo nominated Sen.
Guingona as her Vice President. Both the Senate and House of
Reps separately resolved to confirm such nomination. Thereafter,
Guingona took his oath as Vice President.
Q. So what happened in Estrada vs. Desierto that illustrates
how the vice pres is nominated? What happened?
GMA nominated Senator Giungona Jr as Vice-president. Congress
confirmed it. However some senators voted yes but with
reservations because there’s still a pending challenge on the
legitimacy of GMA’s presidency.
Q. In other words, despite reservations, the nomination of the
vice was confirmed. After it was confirmed what happened
next?
He took his oath of office as a Vice-President.
Summarize how you fill out the office of the vice
Pres will nominate from congress. Congress will confirm the
nomination. If they will not confirm the nomination, the pres will
nominate another. If the congress confirms the nomination, that
person nominated will become the vice-president.
So, to fill out the vacancy in the office of the vice.
• Nomination by the president
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
• Confirmation by the congress
• Oath-taking
Q. What do you thing is the reason why out of the entire
person in Congress, GMA nominated Guingona? Of course in
her press release she said I want to nominate a son of
Mindanao because they underrepresented? But what do you
think is the real reason aside from they came from the same
party? How old is Guingona? Was he old?
Yes. Because Guingona was too old. He is not a threat to the
presidency.
Did you notice that this is about a story. The President was gone.
He stepped down. The V-Pres assumed office. Someone from the
senate was nominated as the V-pres. So there’s a vacancy in the
senate. DOMINO EFFECT.
VACANCY IN BOTH THE P AND VP, HOW FILLED
Article VII, Section 10, 1987 Constitution
The Congress shall, at ten o’clock in the morning of the third day
after the vacancy in the offices of the President and VicePresident occurs, convene in accordance with its rules without
need of a call and within seven days enact a law calling for a
special election to elect a President and a Vice-President to be
held not earlier than forty-five days nor later than sixty days from
the time of such call. The bill calling such special election shall be
deemed certified under paragraph 2, Section 26, Article VI of this
Constitution and shall become law upon its approval on third
reading by the Congress.
Appropriations for the special election shall be charged against any
current appropriations and shall be exempt from the requirements
of paragraph 4, Section 25, Article VI of this Constitution. The
convening of the Congress cannot be suspended nor the special
election postponed. No special election shall be called if the
vacancy occurs within eighteen months before the date of the next
presidential election.
TN: This presupposes that succession cannot happen since the
Senate President and Speaker of the House are likewise dead.
Q. How are the vacancies occurring midterm in both the
Presidency and Vice-Presidency filled?
TN: If the President, Vice-President, Senate President and House
Speaker die, resign or are permanently disabled at the middle of
term.
GR: The Congress shall enact a law calling for a special election to
elect a President and VP, to be held not earlier than 45 days nor
later than 60 days from the time of such all.
XPN: If the vacancy occurred within 18 months before the date of
the next presidential election, no special election shall be called.
Q. How are the vacancies occurring at the start of the term in
both the Presidency and Vice-Presidency filled?
TN: If the President, Vice-President, Senate President and House
Speaker die, resign or are permanently disabled at the start of
term.
Congress legislates the manner in which one who is to act as
President shall be selected.
Q. If President and VP are vacated at the same time?
Special Election
Q. What happens if the vacancy occurs 18 months prior to
regular notice?
Special election held simultaneous with next regular election; avoid
expenses
SENATORS
HOW ELECTED, TERM OF OFFICE AND TERM LIMIT
COMPOSITION AND HOW ELECTED
Q. How many members shall compose the Senate?
24 members. Of the Senators elected in the election of 1992, the
first twelve obtaining the highest number of votes shall serve for
six years and the remaining twelve for three years.
Q. How are senators elected?
They are elected at large by the qualified voters of the Philippines.
Q. How many senators are there?
12 senators.
Q. Was there ever a time that we had more than 12?
Yes
Q. When?
! | UNIVERSITY OF SAN CARLOS
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The first senatorial election happened in 1992 not 1987. In 1992 we
had 24 senators.
At that time Aquino was so popular. And because of her popularity:
23 out of 24 senatorial candidate she produced won.
Q. Only one from the opposition made it to the top 24. Who do
you think it is?
ERAP. Popular among the masses. He then became V-President
and then President overwhelmingly.
Q. What do you think is the reason why after we elected 24
senators in 1993, there were now 12 senators elected every 3
years?
Based on the constitution, you alternate. First 12 are for 6 years
and the 2nd is for 3 years.
Q. In other words you replenish. It’s called staggered. What do
you think is the reason why constitution staggers the term of
office of the senators?
Because, the first six years, there’s 12. And in any case if there’s a
problem or failure in election, at least there are still 12 senators
that are still functioning.
Q. Top 12 serve for 6 years, bottom 12 for 3 years. At midterm
after 3 years the bottom 12 disappears and the top 12 stays
for another 3 years. But bottom 12 that disappeared is
replenished by a new batch. So this new batch of senators
find companion in the senate. In this case what do you think
is the reason now?
Continuity. In other words, the older 12 will bring experience in the
senate and the new batch will bring freshness, new ideas. Mixture
of experience and freshness.
Q. What is the term of office?
6 years
Q. Term limit?
2 consecutive terms. That is the term of office. Meaning you cannot
exceed 2 successive terms. After 2 successive terms you rest.
Then can run again.
Q. Since the term of office is 6 years. But the election is held
every 3 years. Do you need to rest for 6 years or 3 years only
before you can run again?
When we get to the topic term limit, you will realize that even a gap
of one day will already qualify one for another term. Law does not
distinguish between 3 or 6 years. There was a case against Drilon
because he only rested for 3 years. A disqualification case was
filed alleging that he should rest for 6 years because that is
exactly the length of his office. COMELEC dismissed the case
because there is NO legal basis. So one can rest for 3 or 6 years
for as long as there is a gap after the 2 successive terms.
Tolentino v. Comelec
One-liner: Although the Comelec failed to call and give notice, the
special election is still valid as the right and duty to hold the
election emanate from the statute and not from any call for the
election by some authority and the law charges voters with
knowledge of the time and place of the election (statutory notice).
Facts: After Arroyo’s succession to Presidency and Sen.
Guingona’s confirmation as the new VP, a seat in Senate was left
vacant. Senate resolved to call on Comelec to fill such vacancy
through a special election to be held simultaneously with the
upcoming regular election, such that the Senatorial candidate with
the 13th highest number of votes shall fill the vacancy. The
Comelec did so.
Issue: Whether a special election to fill a vacant 3-yr term Senate
seat was validly held.
Held: Yes. The calling of an election, that is, the giving notice of the
time and place of its occurrence, whether made by the legislature
directly or by the body with the duty to give such call, is
indispensable to the election's validity. In a special election to fill a
vacancy, a statute that expressly provides that an election to fill a
vacancy shall be held at the next general elections fixes the date at
which the special election is to be held and operates as the call for
that election.
In determining whether there was a failure of election, it should be
determined whether the lack of notice misled a substantial number
of voters to believe that there was no special election. This did not
happen in this case since more than 10 million voters already cast
their votes for the winning candidate.
If it’s in the law, the people are charged with its knowledge.
Q. What happens to the votes cast absence notice?
Nullified. Disenfranchised. Because such is the law and presumed
that people know such.
Q. What happens if the vacancy occurs 18 months prior to
regular election?
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
A: To avoid expenses, the special election for the vacancy is held
together with the next regular election.
Q. Form of notice that compensated the lack of notice?
STATUTORY NOTICE; provided already by the law
Q. Did the SC admonish the COMELEC?
Yup
Q. Does that leniency apply to district rep?
No; no statutory notice so dapat sila ma inform; only range
provided , no specific date provided as opposed to senate;
Q. What if it is reported that a senator died (like published);
can the comelec immediately conduct a special election?
NO. Needs certification from congress;
Q. Who are our local elective officials?
Governor down to brgy officials
Q. When do we require natural-born citizenship?
President, VP, senate, house of rep, officers of autonomous regions
Q. When do we require Filipino citizenship?
Local elective officials
TERM OF OFFICE AND TERM LIMIT
Article VI, Section 4, 1987 Constitution
The term of office of the Senators shall be six years and shall
commence, unless otherwise provided by law, at noon on the
thirtieth day of June next following their election.
No Senator shall serve for more than two consecutive terms.
Voluntary renunciation of the office for any length of time shall not
be considered as an interruption in the continuity of his service for
the full term for which he was elected.
Q. What is the term of office and term limit of Senators?
The term of office shall be six years and they shall not serve for
more than two consecutive terms.
Qualifications of a Senator cannot be amended, expanded or
restricted by ordinary legislation. We have to amend the
constitution.
Maquera v Borja = property qualification
Pimentel v COMELEC = lifestyle qualification
MEMBERS OF THE HOUSE OF REPRESENTATIVES
NUMBER, HOW ELECTED, TERM OF OFFICE
COMPOSITION AND HOW ELECTED
Article VI, Section 5 (1), (2) & (4), Section 7
1. The House of Representatives shall be composed of not more
than two hundred and fifty members, unless otherwise fixed by
law, who shall be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan Manila area
in accordance with the number of their respective inhabitants,
and on the basis of a uniform and progressive ratio, and those
who, as provided by law, shall be elected through a party-list
system of registered national, regional, and sectoral parties or
organizations.
2. The party-list representatives shall constitute twenty per centum
of the total number of representatives including those under the
party list.
3. For three consecutive terms after the ratification of this
Constitution, one-half of the seats allocated to party-list
representatives shall be filled, as provided by law, by selection
or election from the labor, peasant, urban poor, indigenous
cultural communities, women, youth, and such other sectors as
may be provided by law, except the religious sector.
4. Within three years following the return of every census, the
Congress shall make a reapportionment of legislative districts
based on the standards provided in this section.
Q. How many members compose the HREP?
The House of Reps shall be composed of not more than 250
members, unless otherwise fixed by law.
Q. Absolute?
No
Q. Why?
Growing population, there is a possibility of new districts
Q. What is the effect of voluntary renunciation of the office?
It shall not be considered as an interruption in the continuity of his
service for the full term for which he was elected.
Q. Term limit of representatives?
3 consecutive terms
QUALIICATIONS
Q. Can you run again after 3 terms?
YES; provided there is a pause/rest period
Q. What are the qualifications to be a senator?
1. Natural-born citizen of the Philippines
2. At least thirty-five years of age on the day of the election
3. Able to read and write
4. A registered voter
5. A resident of the Philippines for not less than two years
immediately preceding the day of the election.
Registered voter anywhere in the country; elected at large unlike
District Representatives (only in their respective districts)
In the case of Aquino Sr, his age was short of few days at the day
of election, still short of few days at the day of proclamation,
however at the time he assumed office he was already of age, so
he was accommodated by a split decision of SET at that time.
Today, under the 1987 Constitution, he should be of age at the DAY
OF ELECTION, not on the day of proclamation, not on the day of
assumption of office. Maybe under age in filing COC but must be
of age on the day of election.
Pimentel v. Comelec
One-liner: The right of a citizen in the democratic process of
election should not be defeated by unwarranted impositions of a
requirement not otherwise specified in the Constitution.
Q. How are the members of the House of Reps elected?
They shall be elected from legislative districts apportioned among
provinces, cities and the Metropolitan Manila area in accordance
with the number of their respective inhabitants.
Q. Difference between the election of district representative
and party-list representatives.
Members of the House of representatives are elected by the
constituents of the district whereas the party-list representatives are
elected at large. At large because they are representing a
particular sector.
TERM OF OFFICE
Art VI, Sec 7, 1987 Constitution
The Members of the House of Representatives shall be elected for
a term of three years which shall begin, unless otherwise provided
by law, at noon on the thirtieth day of June next following their
election. No Member of the House of Representatives shall serve
for more than three consecutive terms. Voluntary renunciation of
the office for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for
which he was elected.
Facts: Law and Comelec resolution requiring mandatory drug
testing of candidates for public office, etc were questioned as
unconstitutional.
Q. What is the term of office and term limit of the HREPs?
The Members of the House of Reps shall be elected for a term of 3
years and shall not serve for more than 3 consecutive terms.
Issue: Can Congress or Comelec expand the qualification
requirements of candidates for senator under the Constitution?
Q. How many are members of the House of Representatives?
250
Held: No. A law or an administrative rule violating any norm of the
Constitution is null and void and has no effect.
Q. Is that the maximum? Why or why not?
It is the maximum as provided, but it can be adjusted later.
The Congress cannot validly amend or otherwise modify the
qualification standards of the Constitution. It cannot disregard
evade or weaken the force of a Constitutional mandate or alter or
enlarge the constitution.
Q. What is the basis for Congress to adjust?
Aside from the constitution, the growing population. As the number
of inhabitants increments, meaning as it gets larger, then chances
are, we are going to add more districts. Especially if it is a city and
it now has 250, 000 inhabitants, it can be made as a sole district.
Q. When we say inhabitants, do we mean representatives?
! | UNIVERSITY OF SAN CARLOS
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ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
No, it is only the population. That is the reason why if you legislate
a district, you don’t need to get a certificate from COMELEC of the
number of registered voters to support that but a certification from
the Census or the National statistics office that you have reached
250, 000 inhabitants
• Determine the number of seats the first party is entitled to, in
order to be able to compute that for the other parties. (4% additional 1; -6% - additional 2)
• The number of seats allotted to the other parties cannot
possibly exceed that to which the first party is entitled to.
Q. So, out of this 250 members of the house of
representatives, how many are the party-list members?
Party-list members shall constitute 20% of the total number of the
house of representatives.
The 20% allocation is based on the combined number of the district
representative and the party-list representatives.
Q. What is the formula in determining additional seats for the
first party?
Number of votes of first party / Total votes for party-list system
QUALIFICATIONS
Q. What are the qualifications to be a member of the HREP?
1. A natural-born citizen of the Philippines
2. At least twenty-five years of age on the day of the election
3. Able to read and write
4. A registered voter in the district in which he shall be elected
(except the party-list representatives)
5. A resident thereof for a period of not less than one year
immediately preceding the day of the election (except the
party-list representatives)
NUMBER OF PARTY LIST
The party-list representatives shall constitute twenty per centum
(20%) of the total number of representatives including those under
the party list.
Q. Is 20% allocation mandatory?
No, merely a ceiling
Q. Why is there a need to compute the 2% minimum
threshold?
To attain meaningful representation of party list
Q. Is this constitutional?
Yes, according to Banat Case with regard to computation in
guaranteed seats but not with the computation of the additional
seats
Veterans Federation Party v. Comelec
One-liner: Having determined that the 20% seat allocation is merely
a ceiling, and having upheld the constitutionality of the 2% vote
threshold and the three-seat limit imposed under RA 7941, to
determine how many party list seats the qualified parties are
entitled to, rank all of the parties and allocate basing on the votes
garnered by the party in first rank.
Facts: Two Comelec resolutions ordering the proclamation of 38
additional party-list representatives to complete the full
complement of 52 seats in the House of Reps were challenged.
Issues:
1. Whether the 20% allocation for party-list is mandatory.
2. Whether the 2% threshold requirement and three-seat limit
is constitutional.
3. If yes to number 2, how should the additional seats of a
qualified party be determined?
Held:
1. No, the 20% is just a mere ceiling and the mechanics by
which it is to be filled up has been left to Congress in the
exercise of its prerogative.
2. Yes. The 2% threshold is constitutional since it is
consistent with the very essence of “representation”,
because to have a meaningful representation the elected
persons must have the mandate of a sufficient number of
people. Otherwise, the result might be the proliferation of
small groups which are incapable of contributing
significant legislation, and which might even pose a threat
to the stability of Congress.
3. Yes. The three-seat limit is likewise constitutional since it
ensures the entry of various interest-representations into
the legislature. Thus, no single group, no matter how large
its membership, would dominate the party-list seats, if not
the entire House.
4. The following rules shall be followed to determine the
additional seats:
TN: Under this, only those already qualified can have additional
seats.
• Rank all the parties according to the votes each obtained
• Compute the ratio for each party by dividing its votes by the
total votes cast for the party-list
• All those who garnered at least 2% shall have a guaranteed
seat. Only these parties shall be considered in the
computation of additional seats
• The party having the highest number of votes is referred to
as the “first party”
! | UNIVERSITY OF SAN CARLOS
16
If at least 6% = 2 additional seats
If equal to or greater than 4 % but less than 6% = 1 additional seat
Less than 4% - no additional seat
Example:
1,178,747 / 16,261369 = 7.2% (2 additional seats)
Q. What is the formula in determining additional seats for the
other qualified parties?
No. of votes of qualified party / No. of votes of first party X No. of
additional seats allocated to first party
Example:
977,476 / 1,178,747 X 2 = 1.65% (1 additional seat)
Q. What are the four parameters to determine the winners in
the party-list election under the Veterans case?
1. The 20% allocation – the combined number of all party-list
congressmen shall not exceed 20% of the total
membership of the House of Representatives, including
those elected under the party list.
2. The 2% threshold – only those parties garnering a
minimum of 2% of the total valid votes cast for the party-list
system are “qualified” to have a seat in the House.
3. The three-seat limit – each qualified party, regardless of the
number of votes obtained is entitled to a maximum of
three seats only, one qualifying and two additional seats.
4. Proportional representation – the additional seats which a
qualified party is entitled to shall be computed in
proportion to their total number of vote
BANAT v. Comelec
Facts:
Petitioner BANAT party-list, questioned the proclamations of the
Comelec as well as the formula being used. They questioned Sec.
11 of RA 7941 for being void because its provision that a party-list,
to qualify for a congressional seat, must garner at least 2% of the
votes cast in the party-list election, is not supported by the
Constitution. Further, the 2% rule creates a mathematical
impossibility to meet the 20% party-list seat prescribed by the
Constitution.
Issue: Whether the 2% threshold is unconstitutional.
Held:
Yes, but only insofar as it is used in the distribution of additional
party- list seats. The allocation of the additional seats is no longer
limited to the two-percenters. Hence, even those who did not get
at least 2% of votes, can still benefit from the second round of
seat allocation.
We therefore strike down the two percent threshold only in relation
to the distribution of the additional seats as found in the second
clause of Section 11 (b) of R.A. No. 7941. The two percent
threshold presents an unwarranted obstacle to the full
implementation of Section 5 (2), Article VI of the Constitution and
prevents the attainment of "the broadest possible representation of
party, sectoral or group interests in the House of Representatives
The following rules shall be followed to determine the additional
seats:
Allocation of guaranteed seats:
• Rank all the parties according to the votes each obtained
• Compute the ratio for each party by dividing its votes by the total
votes cast for the party-list
• All those who garnered at least 2% shall have a guaranteed seat.
Allocation of additional seats
• The percentage of votes is multiplied by the remaining available
seats, 38. (55 maximum seats less the 17 guaranteed seats of
the two-percenters)
Examples:
7.33% x 38 = 2.79% (2 additional seats)
4.74% x 38 = 1.80% (1 additional seat)
2.12% x 38 = 0.80% (1 additional seat)
Q. Is this 20% allocation for the party list members mandatory
(meaning, you have to maximize the 20%)?
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Yes, it is mandatory, you have to fill it up, you have to maximize,
provided that there are enough number of party-lists that are
participating in the election. Because otherwise, it will not be
enough no matter how much we maximize, we cannot maximize
the 20% allocation.
Q. Why is there a 2% threshold? Why do we impose a minimum
number of votes for party-lists?
It is important because otherwise some fly-by-night party-list
members might get in into the system. So to show that you have
enough constituents to represent, that you have enough members
in your sector to represent, the 2% threshold must be imposed,
otherwise, anybody can just get inside.
Q. Why do we limit to a maximum of three seats only per partylist?
To prevent the monopoly of one party-list in so far as the party-list
representation is concerned.
Q. What’s your one-liner in so far as the number of party-list
representatives is concerned?
As much as possible, the maximum 20% allocation must be filled
up unless otherwise it is hypothetically impossible to fill that up, as
such, the allocation of which should be in lined with the interest of
the people, that they shall be properly represented.
Q. What is the basis of Congress to increase the seats in
proportion to the population?
It is constitutionally mandated that the Congress, three years after
the release of the Census, should act whether to increase the
members of HRep or not.
Sir Guji: In other words, that particular provision is not self-limiting
for it requires a positive act by Congress to increase the number
of members. Even if it says maximum, it is not self-limiting. There
is that census every three years that would be made as a basis by
Congress to whether or not reapportion more seats. Like for
example, if there’s a city which has at least 250, 000 population,
that can be made as a separate or lone district.
THREE-TERM LIMIT
Q. Why do we need to limit the term of office?
1. To prevent monopoly of power.
2. To prevent developing proprietary interest over the public office.
PURPOSE OF THE THREE-TERM LIMIT
Borja v. Comelec
One-liner: The purpose of limiting the number of terms elective
local officials may serve is to prevent excessive accumulation of
power by perpetuating themselves in office. It seeks to protect the
people from the evils that a monopoly of political power may bring
about.
Facts:
The vice-mayor succeeded the mayor upon the latter’s death by
operation of law. Consequently, he ran and was elected mayor for
another two terms. On his third attempt to run for mayor, a
disqualification case was filed against him, on the ground that he
already served as mayor for three consecutive terms, counting as
one term that he served by virtue of succession.
Issue:
Whether a vice-mayor who succeeds to the office of mayor by
operation of law and serves the remainder of the term is considered
to have served a term in that office for the purpose of the threeterm limit.
Held:
No. Under the Constitution, the three-term limitation refers to the
term of office for which the local official was elected. The purpose
of this provision is to prevent a circumvention of the limitation on
the number of terms an elective local official may serve. If he is
not serving a term for which he was elected because he is simply
continuing the service of the official he succeeds, such official
cannot be considered to have fully served the term
notwithstanding his voluntary renunciation of office prior to its
expiration. While the people should be protected from the evils
that a monopoly of political power may bring about, care should be
taken that their freedom of choice is not unduly curtailed.
Sir Guji:
What the Borja case tells us is that, one of the reasons why there is
a term limit is to prevent monopoly of power. But in this case, the
first term where he assumed the mayorship, did not count
because one of the requisites for the three-term limit rule to apply
is to be fully re- elected. When you succeed only, that is omitted
from the purview of the provision.
Second reason for the term limit is, to prevent developing
proprietary interest. Normally, when you get to taste power, power is
very addicting. Once you get addicted to power, chances are, you
develop proprietary interest. Meaning, you look at your position as
! | UNIVERSITY OF SAN CARLOS
17
your property, that it belongs to you, which should not be the case
because that power is limited by term of office because it’s
supposed to be temporary
Q. What is the justification of the Supreme Court in this case
why there is a 3-limit rule?
Legal Justification: Constitution and LGC
Practical Justification: Because the argument there is that if we
are a democratic country, why are we limiting the choices of the
people?
Q. What is the purpose of the three term limit?
- Not to develop proprietary rights – that is in Latasa vs Comelec
that if we allow politicians to serve more than three terms,
chances are they will tend to develop a sense of interest over
the public office
- Prevent monopolization of power
- Enhance freedom of choice of the people
Democracy only works when we have an intelligent electorate.
Unfortunately, they cannot discern what is abuse from what is
proper; hence, there are certain safeguards provided under the
constitution, and one is the three term limit. For as long as our
electorate, again this is not an absolute statement, sees election
not as a political activity but as an economic opportunity, we will
never be able to choose. (??)
Latasa v. Comelec
One-liner: The framers of the Constitution 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.
Facts:
Latasa held three consecutive offices as mayor, and on his third
term, the Municipality of Digos was made into the City of Digos.
He does not deny the fact that he has already served for three
consecutive terms as municipal mayor. However, he asserts that
when Digos was converted from a municipality to a city, it attained
a different juridical personality. Therefore, when he filed his
certificate of candidacy for city mayor, he cannot be construed as
vying for the same local government post.
Issue: Whether Latasa is eligible to run as candidate for the
position of mayor of the newly-created City of Digos immediately
after he served for three consecutive terms as mayor of the
Municipality of Digos.
Held:
No. Although the new city acquired a new corporate existence
separate and distinct from that of the municipality, it does not
mean, that for the purpose of applying the subject Constitutional
provision, the office of the municipal mayor would now be
construed as a different local government post as that of the office
of the city mayor.
The territorial jurisdiction of the City of Digos is the same as that of
the municipality. Consequently, the inhabitants of the municipality
are the same as those in the city. These inhabitants are the same
group of voters who elected petitioner Latasa to be their municipal
mayor for three consecutive terms. These are also the same
inhabitants over whom he held power and authority as their chief
executive for nine year.
The framers of the Constitution 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 petitioner 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 Digos, petitioner would then be possibly holding office
as chief executive over the same territorial jurisdiction and
inhabitants for a total of eighteen consecutive years.
Q. What are the requisites of the three-term limit rule?
For the three-term limit for elective local government officials to
apply, two conditions or requisites must concur, to wit:
1. That the official concerned has been elected for three
consecutive terms in the same local government post
2. That he has fully served three consecutive terms.
Sir Guji:
Actually, the argument of Latasa was very sound, because he said
“Okay, while it is true that I fully served three terms, but that was
then when it was still a municipality. Now, it’s already a city. But
the SC, No, despite the conversion, you were still governing the
same territory and constituents. So, same place and same people.
Because otherwise, if we were to allow that, Latasa would have
served 18 years, hence he could develop proprietary interest.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
But the main argument in the case is that, we are a democracy. If
there are people who want to stay in power forever, why not?
We’re a democracy! But that only works if we have an intelligent
electorate. For as long as our electorate cannot yet discern
according to how politicians should be discerned, I think there has
to be basic safeguards against abuse of power and perpetuation
of power.
Q. Why SC imposed term of limit in Latasa Case?
Prevent official from developing proprietary interest in the pubic
office
EFFECTS OF THE FOLLOWING ON THE CONTINUITY OF
TERM:
1.
2.
3.
4.
5.
6.
7.
Succession
Preventive suspension
Disqualification prior to end of term
Disqualification after end of term
Recall
Conversion of municipality to city
Election protest
SUCCESSION
Borja v. Comelec
being the highest ranking municipal councilor, succeeded him in
accordance with law. It is clear therefore that his assumption of
office as vice mayor can in no way be considered a voluntary
renunciation of his office as municipal mayor.
The legal successor is not given any option under the law on
whether to accept the vacated post or not. Section 44 of the Local
Government Code makes no exception. Only if the highestranking councilor is permanently unable to succeed to the post
does the law speak of alternate succession. Under no
circumstances can simple refusal of the official concerned be
considered as permanent inability within the contemplation of law.
Essentially therefore, the successor cannot refuse to assume the
office that he is mandated to occupy by virtue of succession. He
can only do so if for some reason he is permanently unable to
succeed and occupy the post vacated.
Succession by law to a vacated government office is involuntary
since it involves performance of a public duty, non-performance of
which exposes said official to possible administrative and criminal
charges of dereliction of duty and neglect in the performance of
public functions. It is therefore more compulsory and obligatory
rather than voluntary.
Sir Guji: If you succeed, it does not count as one term for the
purposes of the three-term limit rule because the effect of
succession is, it interrupts the continuity.
One-liner: If the official is not serving a term for which he was
elected because he is simply continuing the service of the official
he succeeds, such official cannot be considered to have fully
served the term.
What are the requisites for disqualification?
1. the official concerned has been elected for three
consecutive terms in the same local government post
2. that he has fully served three consecutive terms
3. obtain the position by way of election
Facts:
The vice-mayor succeeded the mayor upon the latter’s death by
operation of law. Consequently, he ran and was elected mayor for
another two terms. On his third attempt to run for mayor, a
disqualification case was filed against him, on the ground that he
already served as mayor for three consecutive terms, counting as
one term that he served by virtue of succession.
Q. What is the mode by which you get into that position?
By election. In other words, you must be elected to that particular
position and fully served that particular office of the same position.
That will count as one term for three terms for purposes of three
term limit.
Issue:
Whether a vice-mayor who succeeds to the office of mayor by
operation of law and serves the remainder of the term is considered
to have served a term in that office for the purpose of the threeterm limit.
Ruling:
No. If he is not serving a term for which he was elected because he
is simply continuing the service of the official he succeeds, such
official cannot be considered to have fully served the term.
Sir Guji:
If you succeed, your term is actually interrupted. That is
succession’s effect on term limit: it interrupts. It interrupts both:
your term as the vice mayor and your term as the mayor. Both is
in your favor then. But the legal successor has no choice because
by operation of law, succession says “You have no choice. You
are going to be the next in line.”
Q. When does the 3 term limit apply? What are the requisites?
Valid election & fully served the consecutive terms
In other words here if you succeed, it does not count as one term.
Q. As a vice-mayor, he succeeded as mayor. As a mayor, does
it count as one term?
No, because he merely succeeded.
Q. Now as a vice mayor since he vacated that by virtue of
succession, does the vice-mayor count as one term?
No again. The effect here is you interrupt both terms, as vice mayor
it is interrupted and as mayor it is interrupted. In other words, if
you succeed it is favorable to both positions. As mayor it does not
count as one term and as a vice mayor it does not count as one
term because it is effectively interrupted by succession and
succession is not your choice. It is under the law.
Montebon v. Comelec
Facts:
A disqualification case was filed against a municipal councilor
alleging that he has already served three terms. In his defense,
the councilor said that his second term was interrupted when he
succeeded as vice mayor when the latter retired. Consequently, he
is not disqualified from running for councilor again.
Issue: Whether respondent is deemed to have fully served his
second term in view of his assumption of office as vice-mayor.
Ruling:
No. Succession in local government offices is by operation of law. In
this case, a permanent vacancy occurred in the office of the vice
mayor due to the retirement of Vice Mayor Mendoza. Respondent,
! | UNIVERSITY OF SAN CARLOS
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Q. In which case, if you succeed, is that by election?
No. Thus, if you succeed that does not count as one term because
the requisite is you must be elected to that position to count as
one term.
PREVENTIVE SUSPENSION
Aldovino v. Comelec
One liner: Voluntary renunciation refers only to the elective
official's voluntary relinquishment of office and loss of title to this
office. It does not speak of the temporary "cessation of the
exercise of power or authority" that may occur for various reasons,
with preventive suspension being only one of them.
Facts:
Respondent was elected councilor for three consecutive terms.
During his third term, Sandiganbayan preventively suspended him
which was subsequently lifted. When he ran again for councilor, a
disqualification case was filed on the ground that he has already
served for three terms.
Issue: Whether preventive suspension of an elective official is an
interruption of his term of office for purposes of the three-term limit
rule.
Held:
No. The interruption of a term exempting an elective official from
the three-term limit rule is one that involves no less than the
involuntary loss of title to office. However, temporary inability or
disqualification to exercise the functions of an elective post, as in
preventive suspension, even if involuntary, should not be
considered as an effective interruption of a term because
suspended official continues to stay in office although barred from
exercising the functions and prerogatives of the office within the
suspension period.
Q. What is the best evidence that we can say that even if you
were suspended, you did not lose title to the office?
There is no replacement. So whatever loss of title to the office
there is, it is only temporary. So it could not count as one term.
In the constitution, it says, “Voluntary renunciation does not
interrupt the term”. Voluntary meaning, you resigned. If you
resigned, you are still considered to have fully served the term. It
counts as one term because otherwise, it’s so easy to circumvent
the law:
E.g., one week prior to the expiration of term or 1 week prior to the
filing of COC, you’d probably would wish to resign so you could
run again.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Q: So if voluntary renunciation does not interrupt the term of
office, how about INVOLUNTARY renunciation or leave of
office?
As a general rule, Involuntary severance interrupts.
Q: But why is it in this case, the SC still said that it will NOT
interrupt?
It is because, SC believe that there is a possibility that the
government officials will fabricate administrative charges against
themselves so to involuntary suspend them, thus will not count as
one term. It sounds so unfair but it emphasizes the strict
safeguards by which the Constitution provides against the
excessive terms for power of elective officials.
Q. Aside from suspension, what are other involuntary
severance of office that SC said that “No, it still count as one
term. It does not interrupt”.
A. Sickness
B. Force Majeure
Sir Guji:
What we are talking here is about preventive suspension.
Remember: Preventive suspension is NOT a penalty. Hence, it
does not interrupt the term.
Q. What if you were suspended as a penalty? Does it matter?
No, it does not matter. Because, there is no loss of title. More so,
there is a possibility that you fabricated or invented administrative
charges against you so that you will be preventively suspended or
suspended as a penalty, just to circumvent the Constitutional
prohibition against the three-term limit.
Q. In so far as preventive suspension is concerned, it is not a
voluntary action. Why did the SC rule that you still served the
term?
There is no loss of title to the office
Q. What is the best evidence that you did not lose your title?
Retained title and was not permanently replaced
Q. Is preventive suspension a penalty?
NO, just pause for an investigation;
Q.Does suspension interrupt term?
NO
Q. SC speculated that we should not consider preventive
suspension as an interruption to the term of office. Why?
Because it is a way to circumvent the term limit; politicians will
deliberately cause the suspension so it will cause his extension of
term.
Q. IF I got sick and went to US for treatment, does it interrupt
my office?
NO; no replacement of office; did not lose title
ATTY: as long as there is no permanent replacement, no
interruption of term
Voluntary renunciation not equal to resignation that’s why SC
included preventive suspension, force majeure, sickness
repeatedly held by this court that a proclamation subsequently
declared void is no proclamation at all and while a proclaimed
candidate may assume office on the strength of the proclamation
of the Board of Canvassers he is only a presumptive winner who
assumes office subject to the final outcome of the election protest.
Secondly, he cannot be deemed to have served the third term
because he was ordered to vacate his post before the expiration of
the term. He vacated his post not by voluntary renunciation but in
compliance with the legal process of writ of execution issued by
the COMELEC to that effect. Such involuntary severance from
office is an interruption of continuity of service and thus, the
petitioner did not fully serve the 1995- 1998 mayoral term.
Q. It was said that there was an involuntary leave of office. Why
is that so?
He was forced to vacate through the order of the writ of execution.
By the force of the writ of execution, he had no choice but to leave
so that makes it very, very, VERY involuntary. And as such, being
involuntary, it now interrupts the term of office. As a matter of fact,
he was not even considered elected in the first place. Hence, the
three- term limit rule cannot attach because one of the
requirements there is that, he should be elected.
Of course, in the case, he was proclaimed as the winner and so he
was the de facto officer. But then again, there was the involuntary
interruption of office by force of the writ of execution. And you have
no choice but to follow the writ of execution.
Disqualification prior to end of term seldom happens, really this
seldom happens. Because when you file an election protest case,
the decision becomes final probably a week prior to the expiration
of term. That’s what happened to Lucy Torres. Her disqualification
case decision was promulgated a month prior to term end.
Q. What order from COMELEC that compelled him to vacate
the office?
Proclamation was null & void; writ of execution from COMELEC
(involuntary)
DISQUALIFICATION AFTER END OF TERM
Ong v. Alegre
One-liner: Assumption of office by an elective official and
continuous exercise of the functions thereof from start to finish of
the term, notwithstanding a belated decision by the court in an
election protest case disqualifying said elective official, should
legally be taken as service for a full term in contemplation of the
three-term rule.
Facts:
A disqualification case predicated on the three-consecutive term
limit rule was filed against Francis Ong. During his second term, the
opposing party filed an election protest and the RTC declared the
opposing party as the duly elected mayor. However, such decision
came out only three years after, when Francis already finished his
second term and in fact already starting with his third term.
Issue:
Whether or not the assumption of office as mayor from July 1, 1998
to June 30, 2001, may be considered as one full term service in the
context of the consecutive three-term limit rule.
DISQUALIFICATION PRIOR TO END OF TERM
Held:
Yes. Such assumption of office constitutes, "service for the full
term", and should be counted as a full term served in
contemplation of the three-term limit.
One liner: A proclamation subsequently declared void is no
proclamation at all and one assuming office on the strength of a
protested proclamation does so as a presumptive winner and
subject to the final outcome of the election protest.
It is true that the court ruled in the election protest case that it was
Francis’s opponent who was the legally elected mayor. However,
such decision, was without practical and legal use and value,
having been promulgated after the term of the contested office
has expired.
Lonzanida v. Comelec
Facts:
Petitioner was duly elected and served two terms as mayor. He ran
for the same office the third time and was proclaimed winner. He
assumed office and discharged his duties until he was ordered to
vacate the post by reason of a Comelec decision on the election
protest filed against him which declared his opponent as the duly
elected mayor. In the next elections, he ran again for mayor. A
disqualification case was filed against him on the ground that he
had served three consecutive terms in the same post.
Issue:
Whether petitioner’s assumption of office as mayor may be
considered as service of one full term for the purpose of applying
the three-term limit for elective local government officials.
Held:
No. First off, petitioner cannot be considered as having been duly
elected to the post in the last election. His assumption of office as
mayor cannot be deemed to have been by reason of a valid
election but by reason of a void proclamation. It has been
! | UNIVERSITY OF SAN CARLOS
19
His proclamation by the Municipal Board of Canvassers of San
Vicente as the duly elected mayor in the 1998 mayoralty election
coupled by his assumption of office and his continuous exercise of
the functions thereof from start to finish of the term, should legally
be taken as service for a full term in contemplation of the threeterm rule.
Q. Did we not say that for the three-tem limit rule to apply, the two
requisites must be present: (1) that he was elected for three
consecutive terms for the same office and (2) he had fully served
the term. In this case, he had fully served the term. BUT, there was
a question to it if he was really elected as his proclamation was
nullified. So if his proclamation was nullified, then he was not
elected in the first place. But why did the the SC still consider
that as one term?
The focus should be the service of the term. Regardless of whether
or not the second term was nullified, nevertheless, that mayoralty
candidate or that incumbent official was able to serve the full term.
Therefore, it should be counted as one term.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Sir Guji: Exactly, because if we were to rule otherwise, it would be
absurd because the candidate who is supposed to be the lawful
possessor of that government office was unjustly dislodged. And for
you to say that it does not count, it adds insult to the injury.
Q. Was there still a term of office that is interrupted if
disqualified after the term?
NO more, that’s why SC declared as served the term
TN: In case of doubt, rule in favor of limitation and not with the
exception.
Rivera v. Comelec
Facts:
A petition to cancel the candidate’s Certificate of Candidacy on the
ground that he was elected and had served three previous
consecutive terms as mayor. Respondent however countered that
he served his second term only as a caretaker of the office or a de
facto officer because he was not validly elected for the term 1998
to 2001 since the RTC, declared in its Decision that his
proclamation as mayor was void.
Issue:
Whether or not the term 1998 to 2001 should be counted for
purposes of the three-term limit, when his proclamation as mayor
was subsequently declared void.
Ruling:
Yes. He was mayor for the entire period notwithstanding the
decision of the RTC in the electoral protest case ousting him as
mayor. Such circumstance does not constitute an interruption in
serving the full term.
Sir Guji: What these two cases are telling us is this:
Despite the fact that there are requisites on when the three-term
limit rule will apply, still in case of doubt, whether or not the
requisites are complied with, SC will always rule against the
extension of the term of office.
Summary of three cases:
• In case of disqualification and discontinuance of service
BEFORE the end of term, it DOES NOT COUNT as one term.
• If the disqualification or discontinuance occurred AFTER the term
of the official, it will be considered as ONE TERM.
• In case of doubt on WON term counts considering that one of the
requisites are missing, the doubt should be resolved in favor of
the limitation.
• In the case of Richard Gomez: His COC was cancelled due to
material misrepresentation.
• Substitution is allowed in case of death, disqualification with
finality, or withdrawal.
• What happened here was Richard did not withdraw but he was
disqualified with finality so Lucy replaced him as a candidate it
was allowed beyond December 10 because Lucy and Richard
shared the same surnames if it had not been the same
surnames it will not be allowed because the ballots were already
printed by then. Lucy won but her election was sought to be
voided on the ground that she substituted Richard who was not
a candidate in the first place. If he is not a candidate in the first
place then there is no one to replace. Remember that his COC
was cancelled due to material misrepresentation so it’s as if
Richard never filed his COC that being said Lucy cannot replace
him because he was not a candidate in the first place and so
Lucy’s election was also voided a month prior to term end. So it
does not count as one term. Lucy has three more terms.
RECALL
Adormeo v. Comelec
Facts:
A petition was filed to disqualify the candidate from running for
Mayor on the ground that the candidate was elected and had
served as city mayor for three (3) consecutive terms. The candidate
was elected mayor in May 1992. He served the full term. Again, he
was re-elected in 1995- 1998. In the election of 1998 he lost. In
the recall election of May 12, 2000, he again won and served the
unexpired term until June 30, 2001.
Issue: Whether the candidate was elected for 3 consecutive terms.
filed for candidacy on this recall election. In the recall
election, he won. So what is really the issue here?
If whether or not, the term he fully served after winning in the recall
election should be counted for the purposes of the three-term limit
rule.
A: No. Because right before he was elected through the recall
election, he was a private citizen. There was interruption. In
contemplation of the intent of the law, the interruption took him out
of the purview of the three-term limit.
Socrates v. Comelec
One-liner: What the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. A
recall election mid-way in a term following the third consecutive
term is a subsequent election but not an immediate re-election
after the third term.
Facts:
Hagedorn had been elected and served as mayor for three
consecutive terms. Obviously aware of the three-term limit rule,
Hagedorn opted not to vie for the same mayoralty position in the
2001 elections, in which Socrates ran and eventually won.
However, due to the loss of confidence, members of the incumbent
barangay officials convened themselves into a Preparatory Recall
Assembly, midway into Socrates’ term. Socrates faced recall
proceedings and in the recall election held, Hagedorn ran and
eventually won the recall election.
Issue: Whether or not one who has been elected and served for 3
consecutive full terms is qualified to run for mayor in the recall
election.
Held:
Yes. After three consecutive terms, an elective local official cannot
seek immediate re-election for a fourth term. The prohibited
election refers to the next regular election for the same office
following the end of the third consecutive term. Any subsequent
election, like a recall election, is no longer covered by the
prohibition for two reasons. First, a subsequent election like a recall
election is no longer an immediate re-election after three
consecutive terms. Second, the intervening period constitutes an
involuntary interruption in the continuity of service.
Q. There is a line there that is very important. Hagedorn was
elected and served fully the same office for three consecutive terms
but was still allowed by the SC to run in the recall election because
of that interruption. Based on that, what is that condition
then for the three- term limit rule to apply so that you
cannot run for the fourth term?
There must be an immediate re-election to the fourth term.
Sir Guji: What is prohibited is the immediate re-election to the
fourth term. For as long as there was an interruption, even for only
one day, you can run for re-election after having fully served three
terms. Hence, the three-term limit rule will not apply.
Q. When you run in a recall election (where you might serve
your office for probably only a year), does it count as one
term?
Yes, it counts as one term.
(Discussed in the deliberations of the Constitutional Commission)
Q. In comparison to Adormeo case (where it was said that the
term served after the recall election was not counted for the
purposes of the three-term limit rule), how did the SC
reconcile this?
When you are elected in a recall election, onwards---it counts as
one term.
Moving backward — Adormeo
Moving forward — Socrates (recall election counted as one term if
counted forward)
So for example:
You run in a recall election (first term) ― counted as one term. Then
for the second term, regular election ― counted as two terms
already. Third term onwards, but not backwards.
Ruling:
No. For nearly two years he was a private citizen. The continuity of
his
mayorship was disrupted by his defeat in the 1998 elections.
Neither can respondent's victory in the recall election be deemed
a violation of Section 8, Article X of the Constitution as "voluntary
renunciation" for clearly it was not. Hence, he was not disqualified
to run for mayor in the May 14, 2001 elections.
Because backwards, that’s what happened in the Adorneo case.
That’s
why it was not counted.
*** Adorneo:
1st — won
2nd — won
3rd — lost
4th — recall
Q. In this case, he was mayor for two consecutive terms. On the
third try, he lost. However, there was a recall election, and he
Sir Guji: Example of “backwards”:
1st: Elected, served fully ― one term
! | UNIVERSITY OF SAN CARLOS
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ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
2nd: Elected, served fully ― two terms
3rd: Recall, served fully ― SC: this is not counted as a term
because you do not go backwards. Meaning, you do not go one
term (1st) ― second term (2nd) ― third term (Recall).
It will only count as one term if you count onwards. Meaning, one
term
(Recall) ― second term (Regular) ― third term (Regular).
Q. How was this resolved in the 3rd case?
Recall election does not constitute as one term;
Q. Is Socrates abandoned by this new jurisprudence?
Yes. Mendoza case latest ruling (recall elec not counted as one
term)
Summarize the cases
Q. Can recall election be applied to district representatives?
NO. Applicable only to elective officials
Q. So, if Regular- Regular- Recall, can he run again for the
fourth term?
Yes. The recall election is only counted onwards. So from that
recall election, one term. The fourth election, will be the second
term, and so on.
However, this is merely an obiter dictum. This was not contested
yet.
Summary of these cases
• A recall election cannot bar the candidate from running because
it is not considered an immediate reelection. There is that period
of time/ gap that you are considered a private citizen, in which
case, it does not count as one term.
• You know, a recall petition is tedious/expensive. However,
curiously, almost always, if there is a recall election in Palawan,
it is granted. But here, when there was a recall election in
Danao city. What happened there was the Durano brothers, and
I think it was the Vice-Mayor Durano who initiated, but of course
seemingly for the people, a recall petition against the Durano
Mayor.
• You must prove that the recall petition is called for/signed by at
least 25% of the voters. We verify whether or not the signatures
really belonged to the voter who signed it by comparing it
against our records, one-by-one (around 40,000-50,000
signatures) and we are not hand- writing experts. There are
boxes labeled as “looks similar”, “does not look similar”. So we
just check. That process is very tedious. So after the verification,
there are still other requirements that have to be complied with.
• The COMELEC will then determine if the petition is sufficient in
form and substance, then let there be a recall election. But then
suddenly, COMELEC will suddenly say, there is no budget. And
curiously, if it is in Palawan, there is budget.
• The only ground for a recall election is “loss of confidence”.
CONVERSION OF MUNICIPALITY TO CITY
Latasa v. Comelec
Facts:
Latasa held three consecutive offices as mayor, and on his third
term, the Municipality of Digos was made into the City of Digos.
He does not deny the fact that he has already served for three
consecutive terms as municipal mayor. However, he asserts that
when Digos was converted from a municipality to a city, it attained
a different juridical personality. Therefore, when he filed his
certificate of candidacy for city mayor, he cannot be construed as
vying for the same local government post.
Issue: Whether Latasa is eligible to run as candidate for the
position of mayor of the newly-created City of Digos immediately
after he served for three consecutive terms as mayor of the
Municipality of Digos.
Held:
No. Although the new city acquired a new corporate existence
separate and distinct from that of the municipality, it does not
mean, that for the purpose of applying the subject Constitutional
provision, the office of the municipal mayor would now be
construed as a different local government post as that of the office
of the city mayor.
The territorial jurisdiction of the City of Digos is the same as that of
the municipality. Consequently, the inhabitants of the municipality
are the same as those in the city. These inhabitants are the same
group of voters who elected petitioner Latasa to be their municipal
mayor for three consecutive terms. These are also the same
inhabitants over whom he held power and authority as their chief
executive for nine year.
Q. What is the effect of the conversion of municipality to city
in so far as the three term limit is concerned?
! | UNIVERSITY OF SAN CARLOS
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It’s not so much on whether or not it interrupts, but rather whether
or not the city is not different from the municipality (ex: different
land area, different voters, etc.)
ELECTION PROTEST
Abundo v. Comelec
One-liner: Serving the remaining term after a proclamation in an
election protest, does not count as one full term.
Facts:
Abundo vied for the position of mayor of for four consecutive
elections (2001, 2004, 2007, 2010). In both 2001 and 2007, he
was proclaimed the winner and served his terms. However, in the
2004 elections, Torres was proclaimed as the winner in the
election. Abundo unseated Torres after a successful election
protest. Abundo served the remaining 1 year and 1 month of the
term. In the 2010 elections, Abundo and Torres again opposed
each other. Torres filed a petition to disqualify Abundo based on
the three-term limit rule.
Issue: Whether Abundo is deemed to have served 3 consecutive
terms.
Held:
No. The consecutiveness of what otherwise would have been
Abundo’s
three successive, continuous mayorship was effectively broken
during the 2004- 2007 term when he was initially deprived of title
to, and was veritably disallowed to serve and occupy, an office to
which he, after due proceedings, was eventually declared to have
been the rightful choice of the electorate. The two-year period
during which Torres was serving as mayor should be considered
as an interruption, which effectively removed Abundo’s case from
the ambit of the three-term limit rule.
Sir Guji:
First term, Abundo was elected as mayor. He completed the term.
On the second election, he lost but he filed an election protest.
During the three-term period which was supposed to be the term
of office, the election protest declared him as the real winner of the
elections. As such, he was installed and served the remaining
term. On the third term, he ran and won again, completed it as
well.
The issue here is, in these three terms, Torres says that Abundo is
now barred to run for the fourth consecutive term because the first
three counted as such. But Abundo’s contention is that, the
second term should not be counted as one full term.
So the main issue here is that whether the second term mus be
counted for the purposes of the three-term limit rule.
SC said, that no. The two requisites must be complied. Firstly, he
must be elected into the same office, which was complied by
Abundo although he was only declared later on. But the second
requisite, which is that he must have fully served the term, was not
complied with as he merely served the remaining term for the
second term he was elected in. Ergo, the proclamation in the
election protest does not count as serving full term.
Q. Did not this case reiterate the requisites by which you can
say that it counts as a terms? What are the requisites?
1. He is elected for that purpose
2. He fully served that term
Q. What do you think is the reason why there are a lot of cases
on term limit?
A politician has all the tricks to circumvent the three term limit. They
are trying to test the
waters.
Q. What if you were disqualified after your term of office? So
you will argue that my election was void from the beginning
and so it should not count as one term. How will you address
that?
In case of doubt, resolve in favor of limitation.
Q. Does it count as one term in case of election protest and
the office as vacated?
NO
Q. Can it not be argued that in the meantime that there was an
election protest, was merely a de facto officer. Can it not be
argued that the second term should count as a full term in
favor or against Abundo because anyway, the person who
occupied the position was merely a de facto officer?
No. During the three-year period prior to the proclamation that he
was indeed the rightful winner, Abundo was a private citizen who
was barred from doing the duties and responsibilities in the office
of the mayor. He was not a public officer at all, much less a mayor.
He was merely a private citizen, waiting for the proclamation. As
such, the second term does not count as one term.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Q. So did not the SC reiterate the three requisites for the 3
term limit rule to apply
• The official concerned has been elected for 3 consecutive terms
in the same local government post
• The official has fully served 3 consecutive terms
• G: Should be elected not only a candidate because you might
have lost the elections
• G: In this particular case, it’s a reversal of fortune because in this
case he was not proclaimed the winner so he was not able to
take his oath to assume office; in the middle of the term he was
latter on proclaimed the winner; during the interim wherein he
was waiting for the result of the election protest he was a
private individual
Take note of the first requisite which is election. In this case no less
than the COMELEC is now saying that “you were the one who
was elected”
Q. Does it not count as one term then?
No because he was not able to serve the term
Atty: Go back to requisites; in case of doubt rule in favor of 3 term
limit rule because the court is zealous in guarding against
excessive terms of office
Q. What about the one who was proclaimed first and served
for quite some time; did it count as one term for him?
No, because the candidate does not fall under the contemplation of
the 2 requisites
1) 1st: was not validly elected; void proclamation is no
proclamation at all
2) 2nd: did not fully serve the term bc forced to vacate office
thus it was interrupted; no choice but to vacate because
there was a writ of execution
Atty: G: Lucy torres story — Richard Gomez first who ran but was
disqualified for material misrepresentation as to his residence bc it
was Lucy who actually resided in Ormoc; Lucy was domiciled in
Ormoc so it was her residence thus she replaced Richard; Lucy
was disqualified shortly before the end of her term bc the
COMELEC said that Richard not a candidate to begin with so he
cannot be validly substituted; Lucy “theoretically” had to vacate;
Lucy’s term interrupted so does not count so she can still run for a
3rd and 4th term
VACANCY IN THE SENATE OR HOUSE OF REPS
HOW FILLED
Article VI, Section 9, 1987 Constitution
In case of vacancy in the Senate or in the House of Representatives, a
special election may be called to fill such vacancy in the manner prescribed
by law, but the Senator or Member of the House of Representatives thus
elected shall serve only for the unexpired term.
Q. How is vacancy in the Senate or HREP filled?
Through a special election called for such purpose. However, the
person elected shall serve only for the unexpired term.
Q. Is the rule on special elections absolute in case a vacancy
occurs in the Senate or House of Representatives?
NO. The rule will depend on the date when the vacancy occurred
and the House where the vacancy originated. If the vacancy
occurred in the Senate, irrespective of the date it occurred, the
special elections shall be simultaneous with the next regular
elections. If the vacancy occurred in the House of Representative,
the rule will depend on the date when it occurred:
1. If vacancy falls inside the one year period prior to the
next regular elections – no more special elections. It
shall be done simultaneously with the next regular
elections
2. If vacancy falls outside the one year period prior to
the next regular elections – there will be a special
election.
Q. When shall the special election be held?
Not earlier than 60 days nor longer than 90 days after the
occurrence of the vacancy.
PARTY-LIST
PARTY-LIST REPRESENTATIVES OR NOMINEES
COMPOSITION
Q. How many party-list representatives shall compose the
HREP?
The party-list representatives shall constitute 20% of the total
number of representatives including those under the party list.
Q. What is the policy of the State?
The State shall promote proportional representation in the election
of representatives to the House of Representatives through a
party-list system of registered national, regional and sectoral
parties or organizations or coalitions thereof, which will enable
Filipino citizens belonging to marginalized and under-represented
! | UNIVERSITY OF SAN CARLOS
22
sectors, organizations and parties, and who lack well-defined
political constituencies but who could contribute to the formulation
and enactment of appropriate legislation that will benefit the nation
as a whole, to become members of the House of Representatives.
Towards this end, the State shall develop and guarantee a full, free
and open party system in order to attain the broadcast possible
representation of party, sectoral or group interests in the House of
Representatives by enhancing their chances to compete for and
win seats in the legislature, and shall provide the simplest scheme
possible.
QUALIFICATIONS
Q. What are the qualifications of party-list nominees?
1. Natural-born citizen of the Philippines
2. Registered voter
3. Resident of the Philippines for a period of not less than
one (1) year immediately preceding the day of the election
4. Able to read and write
5. Bona fide member of the party or organization which he
seeks to represent for at least ninety (90) days preceding
the day of the election
6. At least twenty-five (25) years of age on the day of the
election
TN: In case of a nominee of the youth sector, he must at least be 25 but not
more than 30 years of age on the day of the election. Any youth sectoral
representative who attains the age of 30 during his term shall be allowed to
continue in office until the expiration of his term.
Q. If you know, when can you be not necessarily natural born
but still Filipino and can run for public office [aka naturalized]
• Governor to barangay kagawad — need not be natural born but
filipino citizen only
• G: natural born citizenship required only from president to district
rep & also ARMM governor, vice-governor and assemblymen
• G: literacy for governor to brgy kagawad it is the ability to read
and write the local dialect
Q. Difference between nominee and party list representative
Nominee: those submitted by the party list to the COMELEC;
another term for candidate in relation to party lists
Representative: when your party list wins a seat you become a
representative; candidate chosen by sector or voting public
Q. Is there a qualification that in order to represent a party list
you should belong to that sector?
No. As long your intention is in line with those people belonging to
that sector. Aside from intention you must have a track record of
your advocacy.
Q. What do you understand by track record of advocacy?
It must not be an isolated case. When you say track record it
implies a significant period of time and it must be sustained. And
how you determine that is a matter of evidence.
What we are saying here is that before the SC said that you must
belong to the sector that you are representing. But now the SC says
that it could be either way. You could be a member of the sector or
you have the track record of advocacy for the enhancement of a
particular sector’s rights. That’s why you can represent the elderly
even you are just 25 years old provided that you have a track
record of advocacy in line with their rights.
Q. For the youth sector, what if at the time I was elected so my
party list won a seat I was already 29 so during my
incumbency I became 31, should I give up my seat?
- Allowed to complete the term of office because qualified at the
time of election
- G: maturing age at the time of incumbency does not disqualify
you
Q. Can 65 year old represent the youth sector?
No. The constitution provides that in case of a nominee of the
youth sector, he must at least be 25 but not more than 30 years of
age on the day of the election. Any youth sectoral representative
who attains the age of 30 during his term shall be allowed to
continue in office until the expiration of his term
First premise class is that, you can represent the sector even you
don’t belong there provided you have a track record of advocacy.
But except the youth sector because you must be 25 to 30 years
old.
Q. Let’s say you are between 25 to 30 years old, do you need to
have a track record of advocacy in order to represent the
youth sector?
No. because what I said earlier, it could be either way, number or
your track record of advocacy.
Q. What do you understand by the word marginalized?
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
When you say marginalized it means lack of attention. They are not
given the attention that they deserved.
Q. Do you need to be dirt poor in order to represent the
marginalized?
There is no financial requirement in order for you to become a party
list representative.
Q. Are you saying if I am a billionaire I can be a party list
nominee?
Yes, as long as you are representing the interest of the
marginalized; you need not be a member of the sector you
represent as long as you have a track record of advocacy
espousing the interests of that particular sector
Atty: So candidates who are disqualified because of the 3 term limit
rule can still join Congress, can still become a representative
through the back gate.
GMA’s son was the representative of security guards. How do you
expect him to advance the interests of security guards of the
country? But since he was about to exceed the 3 term limit rule he
wanted to be part of Congress by being a party list rep.
Basically masking your disqualification with a party list nomination
Ang Bagong Bayani-OFW v. Comelec
One-liner: The nominees must represent the marginalized and
underrepresented sectors. They must be Filipino citizens "who
belong to marginalized and underrepresented sectors,
organizations and parties." Hence, the interests of the youth
cannot be fully represented by a retiree; neither can those of the
urban poor or the working class, by an industrialist. To allow
otherwise is to betray the State policy to give genuine
representation to the marginalized and underrepresented.
Facts:
Petitioners Ang Bagong Bayani and Bayan Muna object to the
participation of major political parties. They seek the
disqualification of private respondents, arguing mainly that the
party-list system was intended to benefit the marginalized and
underrepresented; not the mainstream political parties, the nonmarginalized or overrepresented
Issues:
1. Whether political parties may participate in the party-list
stem
2. Whether the party-list system is exclusive to marginalized
and underrepresented sectors.
Held:
1. Yes. They cannot be disqualified from the party-list elections
merely on the ground that they are political parties. The
Constitution provides that members provides that members of
the House may be elected through a party-list system of
registered national, regional, and sectoral parties or
organizations. The purpose of the party-list is to open up the
system. Indubitably, therefore, political parties — even the
major ones — may participate in the party-list elections.
That political parties may participate in the party-list elections does
not mean, however, that any political party — or any organization
or group for that matter — may do so. The requisite character of
these parties or organizations must be consistent with the purpose
of the party-list system, as laid down in the Constitution and RA
7941. In other words, while they are not disqualified merely on the
ground that they are political parties, they must show, however, that
they represent the interests of the marginalized and
underrepresented.
2. Yes. Only those Filipinos who are marginalized and
underrepresented become members of Congress under the
party- list system. Logic shows that the system has been
opened to those who have never gotten a foothold within it —
those who cannot otherwise win in regular elections and who
therefore need the "simplest scheme possible" to do so.
Conversely, it would be illogical to open the system to those who
have long been within it — those privileged sectors that have
long dominated the congressional district elections. This Court,
therefore, cannot allow the party-list system to be sullied and
prostituted by those who are neither marginalized nor
underrepresented.
Q. What is the purpose of the party-list system?
The party-list system is a social justice tool designed not only to
give more law to the great masses of our people who have less in
life, but also to enable them to become veritable lawmakers
themselves, empowered to participate directly in the enactment of
laws designed to benefit them. It intends to make the marginalized
and the underrepresented not merely passive recipients of the
State's benevolence, but active participants in the mainstream of
representative democracy. Thus, allowing all individuals and
groups, including those which now dominate district elections, to
have the same opportunity to participate in party-list elections
would desecrate this lofty objective and mongrelize the social
justice mechanism into an atrocious veneer for traditional politics.
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Q. May political parties participate under the party-list system
of elections?
Yes. The Supreme Court laid down 8 parameters before a political
party may be allowed registration. For a political party to be
allowed participation, it must align itself with sectoral groups. In like
manner that nominee thereof must also be representing the
underrepresented and the marginalized sectors.
8 parameters:
1. The political party must represent the marginalized and
underrepresented groups
2. It must comply with the declared statutory policy of
enabling “Filipino citizens belonging to marginalized and
underrepresented sectors
3. The religious sector may not be represented in the partylist system
4. The party must not be disqualified under Sec 6 of RA 7941
5. The party must not be an adjunct of or a project organized
or an entity funded or assisted by the government.
6. The party must not only comply with the requirements of
the law, but its nominees must likewise do so under Sec 9
of RA 7941
7. Not only the candidate must represent the marginalized, so
also must its nominees
8. The nominees must likewise be able to contribute to the
formulation and enactment of appropriate legislation that
will benefit the nation as a whole.
TN: But this was modified by the subsequent ruling in the case of
Atong Paglaum v. Comelec
BANAT v. Comelec and Bayan Muna v. Comelec
One-liner: It is not necessary that the party-list organization's
nominee "wallow in poverty, destitution and infirmity" as there is
no financial status required in the law. It is enough that the
nominee of the sectoral party belongs to the marginalized and
underrepresented sectors, that is, if the nominee represents the
fisherfolk, he or she must be a fisherfolk, or if the nominee
represents the senior citizens, he or she must be a senior citizen.
Summary insofar as the qualifications of the nominees are
concerned.
• In Bagong Bayani, you should belong to the marginalized or
underrepresented.
• In Banat, the SC became more specific
Atong Paglaum v. Comelec
One-liner: It is not necessary that the nominee be a member of the
marginalized sector which he seeks to represent. It is enough that
he is an advocate of such sector, that, he has a proven track
record for the advocating the cause of the organization he seeks
to represent.
Facts:
52 party-list groups assailed the Resolutions issued by Comelec
denying their petitions for registration under the party-list system.
Issue:
Whether the criteria for participating as party-list system laid down
in Ang Bagong Bayani and BANAT should be applied by the
Comelec in the coming May 2013 party-list elections.
Held:
No. Political parties need not align themselves with sectoral groups
or organizations, and the nominees thereof need not come from that
sector itself, provided that he can show that he has a proven track
record for advocating the cause of the organization he seeks to
represent.
The recognition that national and regional parties, as well as
sectoral parties of professionals, the elderly, women and the youth,
need not be "marginalized and underrepresented" will allow small
ideology-based and cause-oriented parties who lack "well-defined
political constituencies" a chance to win seats in the House of
Representatives. On the other hand, limiting to the "marginalized
and underrepresented" the sectoral parties for labor, peasant,
fisher folk, urban poor, indigenous cultural communities,
handicapped, veterans, overseas workers, and other sectors that
by their nature are economically at the margins of society, will give
the "marginalized and underrepresented" an opportunity to
likewise win seats in the House of Representatives.
TN: Belonging to the "marginalized and underrepresented" sector does not
mean one must "wallow in poverty, destitution or infirmity." It is sufficient that
one, or his or her sector, is below the middle class or those who fall in the
low income group as classified by the National Statistical Coordination
Board.
Q. For example, I am to represent PWDs but I am an athlete,
can I do that?
Yes, you need not be a member of the sector you represent for as
long as you have a track record of advocacy
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Q. What is a track record of advocacy?
Body of work developed for a significant period of time; complete
credentials insofar as your advocacy for a particular sector is
concerned
Atty: mere photo op not enough as it does not amount to a track
record
Q. How long is a long period of time?
Case to case basis
Atty: COMELEC resolution wherein one must prove membership in
that particular sector, aside from track record
Q. What do you understand by marginalized?
Wala tagda
Q. What about lacking well-defined political constituencies?
Some sectors that fail to secure a seat because membership is not
enough
Q. Summarize who are really qualified to be PL nominees
1. Members of the sector or those with a track record of
advocacy
2. citizenship requirement
3. ability to read and write
4. member of the sector you represent at least 90d prior to
date of election
5. at least 25 …
Q. Are they natural born citizens or just Filipino citizens?
Natural born
6 parameters:
1. Three different groups may participate in the party-list
system: The national, regional and sectoral parties.
2. National parties and regional parties do not need to organize
along the sectoral lines and do not need to represent any
“marginalized or underrepresented” sector.
3. Political parties can participate in party-list elections
provided they register under the party-list system and do
not field candidates in legislative district elections
4. Sectoral parties may either be “marginalized and
underrepresented” or lacking in “well-defined political
constituencies.”
5. A majority of the members of sectoral parties that represent
the marginalized and underrepresented must belong to
such sector which they represent
6. National, regional and sectoral parties shall not be
disqualified if some of their nominees are disqualified,
provided that they have at least one nominee who remains
qualified.
SECTORS TO BE REPRESENTED BY PARTY-LIST
Q. What organizations may qualify under the party-list system?
1. Labor
2. Peasant
3. Urban poor
4. Fisherfolk
5. Indigenous cultural communities
6. Women
7. Youth
8. Elderly
9. Handicapped
10. Veterans
11. Overseas workers
12. Professionals
13. Such other sectors as may be provided by law, except the
religious sector.
Q. When you say “other as may be provided by law” what
does it mean?
Not self-executing.
Atty: Congress given leeway to add as long as in the enumeration
they are similarly situated
Q. so can Congress add to that enumeration?
Yes
Q. so did Congress add?
Yes, the PL law
Q. Who were added?
1) veterans
2) OFWs
3) PWDs
Q. Is the provision enumerating the sectors self-executing?
! | UNIVERSITY OF SAN CARLOS
24
No. As based in your statutory construction there are certain
provisions that are designed not to be self executory like “as
provided by law” “as may be defined by law”. If you see those
phrases. It means they are not self executory.
So, the constitution already admits that the enumeration is not
exclusive.
Q. Describe the process of registration of party-list.
Any organized group of persons may register as a party,
organization or coalition for purposes of the party-list system by:
1. Register with Comelec – file a verified petition not later
than 90 days before the election, accompanied by its
constitution, by-laws, platform or program of government,
list of officers, etc.
2. The petition has to be published in 2 newspapers of
general circulation
3. It should be acted upon within 15 days, and no later than
60 days before elections. (There should be a formal
hearing)
4. Once a party-list is accredited by the Comelec, it must
submit to the Comelec a list of 5 nominees not later than
45 days before the elections.
CLASSIFICATIONS OF PARTY-LIST SECTORS
Q. How do you classify the sectors?
- Marginalized or underrepresented
- Lacking well-defined political constituents
Q. Who fall under marginalized?
- Urban poor
- Indigenous cultural communities
Q. Who fall under lacking well-defined constituencies?
- women
- youth
Q. PWDs, do they lack well-defined political constituencies?
Yeah, they are only few in number in a particular district but if you
total them in the entire PH they could produce enough votes to
have a representative
Atty: in a particular district, dili nila kaya or there are not enough
numbers for them but in totality nationwide it would be more than
enough to have a seat in Congress by way of PL
Q. Can the religious sector be represented?
No, it is an exception
Q. Can Congress legislate allowing the religious sector to be
represented?
No, contrary to mandate of Consti [separation of church and state]
Q. When congress added to the enumeration, is that the end of
it?
No, because Congress may still legislate to add to the enumeration
Q. If a particular sector is not one of those enumerated under
the are you saying they cant send a PL group to Congress?
No, as long as they comply with the requirements provided by the
Consti and none of the disqualifications
Atong Paglaum v. Comelec
One-liner: Sectoral parties may either be “marginalized and
underrepresented” or lacking in “well-defined political
constituencies.”
Held:
The party-list system is composed of three different groups: (1)
national parties or organizations; (2) regional parties or
organizations; and (3) sectoral parties or organizations. National
and regional parties or organizations are different from sectoral
parties or organizations. National and regional parties or
organizations need not be organized along sectoral lines and
need not represent any particular sector
Section 5 of R.A. No. 7941 states that "the sectors shall include
labor, peasant, fisher folk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth, veterans,
overseas workers, and professionals." The sectors mentioned in
Section 5 are not all necessarily "marginalized and
underrepresented." For sure, "professionals" are not by definition
"marginalized and underrepresented," not even the elderly, women,
and the youth. However, professionals, the elderly, women, and the
youth may "lack well-defined political constituencies," and can
thus organize themselves into sectoral parties in advocacy of the
special interests and concerns of their respective sectors.
Lacking well-defined political constituency: Their number in the
district is not sufficient to earn a seat in Congress but taking into
account that of the entire nation, it could be sufficient.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Q. What do you understand by “lack of well-defined political
constituencies”?
What we are saying here, is that there are some sectors that
despite their best efforts they fail to secure a seat because one,
the membership is not enough to earn them the necessary votes
for them to be in Congress.
Q. What are these sectors?
The professionals, elderly, the youth and the women. In other
words the SC tells us that if you represent these sectors there is a
bigger chance of you winning if it’s done nationwide.
Q. What about the marginalized sectors?
It consists of labor, peasants, the urban poor, fisherfolks,
indigenous
cultural communities, the veterans and OFW’s
Now, it presupposes that they are financially challenged. But why
did the SC included the OFW’s when they are supposed to be the
breadwinners?
Q. What are the reasons?
It is because their problems are not easily heard especially the
abuses they experienced outside the country.
Q. Example of group not in enumeration but can be part
Construction workers
Q. Can there be a sector for bar flunkers?
Uhmm no
Q. OFWs: why do we say they are marginalized when in fact
they are earning much?
They pertain to a special class constrained to go out of the country
to seek greener pastures they should be represented in Congress
Q. Professionals: why do we allow them to be a PL group?
PL representation should not be limited to those marginalized and
underrepresented but also to those ideologically based
Atty: Its not all about money as such is not a sufficient ground to
disqualify so long as you have some special interest to advance in
Congress
Q. Consti enumerated the secrors. Was lgbt included?
NO
Q. If you are not part of the enumeration, are you disqualified
automatically?
NO; not exclusive enumeration; may still qualify
N AT U R E O F CO N ST I T U T I O N A L & STAT U TO R Y
ENUMERATION
NATURE OF LIST OF NOMINEES
One-liner: The enumeration of marginalized and underrepresented sectors is not exclusive. The crucial element is not
whether a sector is specifically enumerated, but whether a
particular organization complies with the requirements of the
Constitution and RA 7941
One-liner: Comelec has a constitutional duty to disclose and
release the names of the nominees of the party-list groups. The
people have the right to elect their representatives on the basis of
an informed judgment. Hence the need for voters to be informed
about matters that have a bearing on their choice. The ideal cannot
be achieved in a system of blind voting.
Ang Ladlad v. Comelec
Facts:
Ang Ladlad is an organization composed of men and women who
identify themselves as lesbians, gays, bisexuals, or transgendered individuals (LGBTs). They applied for registration for
party-list since the LGBT community is a marginalized and underrepresented sector that is particularly disadvantaged because of
their sexual orientation and gender identity. The Comelec denied
the application on the ground that Ang Ladlad advocates sexual
immorality.
BA-RA 7941 v. Comelec
Facts:
Both petitions seek to compel the Comelec to disclose or publish
the names of the nominees of various party-list groups. Comelec
denied arguing that the party-list elections must not be personality
oriented and that people are to vote for sectoral parties and not for
their nominees.
Issues: Whether Comelec is mandated by the Constitution to
disclose to the public the names of said nominees.
Issue: Whether Ang Ladlad can qualify as a party-list.
Held:
Yes. The enumeration of marginalized and under-represented
sectors is not exclusive. The crucial element is not whether a
sector is specifically enumerated, but whether a particular
organization complies with the requirements of the Constitution
and RA 7941. They can fall on the “Such other sectors as may be
provided by law, except the religious sector.”
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.
Atty Guji:
The first contention there was that you cannot be a party list
because you are not even part of those enumerated under the
law. But the SC said that it’s not an excuse. As long as you have
the qualifications and none of the disqualifications you can be a
partylist nominee.
Q. How did the SC address the ruling of the COMELEC when it
said they cannot accredit Ang Ladlad as a party list?
The main gument here was that Ang Ladlad was not one of those
enumerated under the law. But the COMELEC raised it only in the
SC, it was just a mere afterthought. Their first argument was
based on immorality. As what the SC said there is a separation of
the church and state.
Q. Did the COMELEC raise the issue that the LGBT community
is not one of those sectors enumerated by law for the first
time on appeal?
No, sa SC na
Atty: mere afterthought meaning they ran out of arguments. SC
admonished COMELEC for imposing its morality upon the
populace; you cannot legislate morality
Q. Insofar as the PL enumeration is concerned, is that
exclusive?
No
Atty: even if the law says “these are the sectors” it does not end
there bc it is not exclusive; can still be part of a PL group even if it
is not enumerated
! | UNIVERSITY OF SAN CARLOS
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Held:
Yes. It has been repeatedly said in various contexts that the people
have the right to elect their representatives on the basis of an
informed judgment. Hence the need for voters to be informed about
matters that have a bearing on their choice. The ideal cannot be
achieved in a system of blind voting, as veritably advocated in the
assailed resolution of the Comelec. The Court has consistently
made it clear that it frowns upon any interpretation of the law or
rules that would hinder in any way the free and intelligent casting
of the votes in an election.
While the vote cast in a party-list elections is a vote for a party,
such vote, in the end, would be a vote for its nominees, who, in
appropriate cases, would eventually sit in the House of
Representatives.
One of reasons there why the COMELEC refuse to divulge the
information is that the party list system is not about personalities.
Q. What is blind voting?
You do not know the persons you are voting for
Q. How do you classify the nature of the list of nominees in
this case?
Public
Q. Is the list of nominees confidential?
No
Q. How do you fill up vacancy in the senate?
Special election simultaneous with regular election
Q. Whats the reason?
Budget
Q. Vacancy In district rep?
If occurs 1 year preceding election-no need for special elec;
If beyond 1 year preceding regular election-special elec,
Q. Why not appointment?
Representative - dapat elected by the people; must be represented
by the will of people
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Q. How do you classify the information insofar as the list of
nominees is concerned?
Confidential
Representatives, as the case may be, shall be sufficient for such
purpose. The Member of the House of Representatives thus
elected shall serve only for the unexpired term.
Q. COMELEC invoked which law?
No specific answer but it prohibited the COMELEC from disclosing
the names of the PL nominees
Q. And does it count as one term?
Unlike Recall elections, if you are selected for the Senate or House
of Representatives, it counts as one term for purposes of applying
the three term limit rule, no matter how short it is.
Atty: SC said that that it is confidential info may be valid to a point
but it cannot supersede the more primordial consideration of the
people’s right to information on matters of public concern
What prompted the COMELEC to classify it as confidential was that
it was during this time that mikey arroyo represented the security
guards so COMELEC was shy
Q. What happens if the special elections happens within a year
from the next regular elections? Are we going to have that
special elections still?
The election will be held simultaneously with the next regular
elections.
Q. What are matters of public concern?
Affects the public either directly or indirectly
Atty: Neither jurisprudence nor law define matters of public
concern. Anything that sparks public curiosity is a matter of public
concern
Q. Does jurisprudence ever define matters of public concern?
No but SC in this case compared it to another case where it said
that disclosure of the name of the sanitary officers was matters of
public concern so SC said how much more for those who occupy
lofty positions of a PL rep.
Atty: if we were to follow the argument of COMELEC it would result
in blind voting because essentially the people will never know who
are the people behind that particular PL
Q. How did the SC address this ruling?
It is based on the people’s right for information. Otherwise if the
COMELEC will not divulge the list of the nominees, it will result to
blind voting. The right to information is very basic.
Q. What rights are violated?
Right to information, right to freedom of expression
Q. A matter of public concern or public interest, is that defined
by law or jurisprudence?
No.
Q. Define it as a law student?
Atty G: Anything that sparks the curiosity of the people subject to
certain limitations
VACANCY IN THE SENATE OR HOR
In the Tolentino case, the things that you should remembered is that
in case there is a vacancy in the senate. The vacancy in the senate
can be take out in a special election but not in a separate special
election. But in a special election held simultaneously with the
regular election.
But in so far, as the District Reps is concerned, a separate special
election can be done provided that the vacancy does not occur
in18 months
Of course, one of the issues there is the necessity of notice given
by COMELEC to the public is indispensable regarding the special
elections is concerned. But can be dispensed with so far the
Senate is concerned because it is already provided by the law in
which case there is already a statutory provision.
But remember in this case, the SC again admonished the
COMELEC, that the next time there is a special election alongside
a regular election, you must still notify the public even there is
already a statutory provision.
Q. When do we hold the special election for senator?
Simultaneously with regular elections
Q. When do we hold the special election for district
representative?
Not earlier than 60 days or not later than 90 days after the office is
vacated except if it occurs within a year prior to expiration of term
Q. What is the term of office for local elective officials?
3 years
Q. What happens if there is a permanent vacancy in the
district representatives?
If there is a permanent vacancy, if the vacancy is at least 1 year
before the next regular election for Members of Congress, the
COMELEC, upon receipt of a resolution of the House of
Representatives, certifying to the existence of such vacancy and
calling for a special election, shall hold a special election to fill
such vacancy. If Congress is in recess, an official communication
on the existence of the vacancy and call for a special election by
the President of the Senate or by the Speaker of the House of
! | UNIVERSITY OF SAN CARLOS
26
Q. What happens if there is a permanent vacancy in the
Senate? Regardless of the time of the vacancy, will we have a
special elections? When?
RA 6645 Sections 1 and 2 states
“Section 1. In case a vacancy arises in the Senate at least eighteen
(18) months or in the House of Representatives at least (1) year
before the next regular election for Members of Congress, the
Commission on Elections, upon receipt of a resolution of the
Senate or the House of Representatives, as the case may be,
certifying to the existence of such vacancy and calling for a
special election, shall hold a special election to fill such vacancy. If
Congress is in recess, an official communication on the existence
of the vacancy and call for a special election by the President of
the Senate or by the Speaker of the House of Representatives, as
the case may be, shall be sufficient for such purpose. The Senator
or Member of the House of Representatives thus elected shall
serve only for the unexpired term.
Section 2. The Commission on Elections shall fix the date of the
special election, which shall not be earlier than forty-five (45) days
not later than ninety (90) days from the date of such resolution or
communication, stating among other things the office or offices to
be voted for: provided, however, that if within the said period a
general election is scheduled to be held, the special election shall
be held simultaneously with such general election.”
But RA 7166 Section 4 states that “Postponement, Failure of
Election and Special Elections. - The postponement, declaration
of failure of election and the calling of special elections as
provided in Sections 5, 6 and 7 of the Omnibus Election Code
shall be decided by the Commission sitting en banc by a majority
vote of its members. The causes for the declaration of a failure of
election may occur before or after the casting of votes or on the
day of the election.
In case a permanent vacancy shall occur in the Senate or House of
Representatives at least one (1) year before the expiration of the
term, the Commission shall call and hold a special election to fill
the vacancy not earlier than sixty (60) days nor longer than ninety
(90) days after the occurrence of the vacancy. However, in case of
such vacancy in the Senate, the special election shall be held
simultaneously with the succeeding regular election.”
Therefore, in case of vacancy in the permanent vacancy in the
Senate, regardless of when there was vacancy, the special
elections shall be held together with the next regular elections.
And this special election is not specific, only arranged.
ELECTIVE LOCAL OFFICIALS
Q. Who are our elective local officials?
It’s the Governor down to our barangay officials
Q. Why do we call them local?
Because they represent or serve a certain local community and not
of the national level
Q. What about the district representative? Do they represent a
local community?
Yes sir, but technically they are not covered by the Local
Government Code and thus they are not elective local officials nor
national elected officials. We just call them “District
Representatives”.
Atty. Guji:
They are like A4 neither long nor short.
TERM OF OFFICE AND TERM LIMIT
TERM OF OFFICE AND TERM LIMIT
Article X, Section 8, 1987 Constitution
The term of office of elective local officials, except barangay
officials, which shall be determined by law, shall be three years
and no such official shall serve for more than three consecutive
terms. Voluntary renunciation of the office for any length
of time shall not be considered as an interruption in the continuity of
his service for the full term for which he was elected.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Q. What is the term of office of elective local officials?
Term of office is 3 years and shall not serve for more than 3
consecutive terms. (Except barangay officials – their term of office
is determined by law)
Atty. Guji’s:
Take note – for the same position
Section 43, Local Government Code of 1991
Term of Office. –
A. The term of office of all local elective officials elected after the
effectivity of this Code shall be three (3) years, starting from
noon of June 30, 1992 or such date as may be provided for by
law, except that of elective barangay officials: Provided, That
all local officials first elected during the local elections
immediately following the ratification of the 1987 Constitution
shall serve until noon of June 30, 1992.
B. No local elective official shall serve for more than three (3)
consecutive terms in the same position. Voluntary renunciation
of the office for any length of time shall not be considered as
an interruption in the continuity of service for the full term for
which the elective official concerned was elected.
C. The term of office of barangay officials and members of the
Sangguniang Kabataan shall be for three (3) years, which shall
begin after the regular election of barangay officials on the
second Monday of May 1994.
Q. What is the term of office of barangay officials?
David v. Comelec
One-liner: While the term for barangay officials is not
constitutionally provided, the intent and design of the legislature to
limit their term to only 3 years as provided under the Local
Government Code emerges as bright as the sunlight. RA 6679
which provides for a term of five years was repealed by RA 7160
reducing it to 3 years. Basic is the principle in statutory
construction that between two laws with apparent irreconcilable
conflict, the later law prevails because it is the later legislative will.
Facts:
David et al contended that the term of office of barangay officials is
5 Years.
• RA 6679 prescribes 5 years for the barangay officials while
RA 7160 provides 3 years for the barangay officials however
David et all contends that the LGC (7160) cannot supersede
a special law since it is a general law
• The Constitution specifically stated that the term of office of
elective officials is 3 years EXCEPT barangay officials
which shall be determined by law and therefore can never
be 3 years
Issue:
How long should the term of office of the barangay officials be?
Ruling: 3 years only
• The specific provision of the LGC which provides that the
term of office of barangay officials shall be for three years
is a SPECIAL PROVISION and with such particularity it
cannot be regarded as general law
• As for the contention that the Constitution provides that the
term of office of barangay officials should never be only for
3 years, the SC rules that they cannot tie the hands of
Congress. It merely says that the Congress must decide
how long the term of office should be
• It also doesn’t make sense that governors and mayors
should serve only for 3 years while those subordinate to
them will serve for 5 years
Atty. Guji:
This case revealed that they have a hidden jealousy. They are
jealous of the barangay officials because if you think about it if you
are a mayor a governor you only have 3 years as your term of
office (your position is higher than that of the barangay officials yet
you will serve for a shorter term). What will that mean? – It means
your office is inferior.
TN: Klaro na ha, in black and white barangay officials’ term of office
is 3 years. Term limit is the same as the other local officials but of
course we know that we reset the election of the barangay officials
from time to time.
Q. There was an argument that LGC is a general law. How did
the SC rule on that?
Not general law; provisions in terms of term limit was specific to the
brgy officials
Sir this case was decided in 1998 it amended the portion about the
term of office of the barangay official were it states that it’s 5 years.
Sir – Ah yes but again it was amended, I forgot the law but the
prevailing now is 3 years. I will look into that. Actually utang pud
nako ni Danrey.
Q. Do you know who is the father of the Local Government
Code of 1991?
Aquilino “Nene” Pimentel, Jr.
Q. One of the main arguments they said was that because
although the LGC is a subsequent law, it is a general law and
a general law does not supersede a general law, how did the
SC rule on that issue?
Provision of the LGC was a specific provision so even if LGC was a
general law, the provision will stand on its own as a specific
provision
Guji: Even if LGC as a whole is a general law but insofar as the
term limit is concerned, it is very specific
Q. Did not the Constitution say that the term of office of local
officials say 3 years then it says except barangay officials?
SC recognized the power of Congress to enact a law
Q. Are you saying that Congress can set the term limit to 5
years?
Yes because the Constitution says “as may be provided for by law”
Q. Can it be longer?
Yes
Q. Can it be shorter?
Yes
Q. Why?
Because the Constitution provides so if Congress decides
Q. What is referred to by the exception clause?
The term of 3 years
Q. Are you saying that it should be any other term of office
except 3 years?
Not necessarily because there is a qualification that it must be
provided for by law
Guji: It gives leeway unto the Congress to fix the term of office of
the barangay officials
Q. Were the other elective officials jealous of the 5 year term?
Yes.
Reason: felt inferior because in higher position but shorter term of
office so the Congress was constrained to equalize the
opportunities of public office and said 3 years but the contention
was that past 2 laws provided for 5 years and now the LGC says 3
years.
Q. Can the SC provide a win-win solution? Like say 4 years?
No because this would amount to judicial legislation and would run
counter to the principle of separation of powers
Q. Does the 3 term limit rule apply to them?
Yes.
Reason: To equalize the opportunities of public office. There is a
law which provides and not only through analogy
QUALIFICATIONS
QUALIFICATIONS
Q. What are the qualifications of elective local officials?
1. A citizen of the Philippines
2. A registered voter in the barangay, municipality, city, or
province or, in the case of a member of the Sangguniang
Panlalawigan, Sangguniang Panlungsod, or
Sangguniang Bayan, the district where he intends to be
elected
3. A resident therein for at least 1 year immediately
preceding the day of the election
4. Able to read and write Filipino or any other local
language or dialect
Q. What are the age requirements?
21 years old
Q. Can not the SC provide a win-win solution? (like ok 4 years
nalang para way gubot)
Nope, judicial legislation
Lisanie’s question:
! | UNIVERSITY OF SAN CARLOS
27
18 years old
At least 15 but
not more than
21
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Governor, ViceGovernor, member
of the Provincial
Council, Mayor,
Vice-Mayor,
Member of the
City
Council of highly
urbanized cities
Member of the
City or Municipal
Council
Mayor, Vice-Mayor
of independent
component cities
or municipalities
Punong barangay,
member of the
Barangay council
Sangguniang
Kabataan
Q. What are the qualifications of an elective official of the SK?
1. A Filipino citizen
2. Qualified voter of the katipunan ng Kabataan
3. Resident of the barangay for at least one (1) year
immediately prior to election
4. At least fifteen (15) years but less than eighteen (18) years
of age on the day of the election
5. Able to read and write Filipino, English, or the local dialect,
6. Must not have been convicted of any crime involving moral
turpitude.
Q. What is the purpose of Philippine citizenship as a
requirement?
Philippine citizenship is an indispensable requirement for holding
an elective public office, and the purpose of the citizenship
qualification is none other than to ensure that no alien, i.e., no
person owing allegiance to another nation, shall govern our people
and our country or a unit of territory thereof.
Q. When do we require natural-born citizenship?
President, VP, senate, house of rep, officers of autonomous regions
Positions from the president down to district officials
Q. When do we require Filipino citizenship?
Local elective officials
Frivaldo v. Comelec
One-liner: The citizenship requirement in the Local Government
Code is to be possessed by an elective official at the latest as of
the time he is proclaimed and at the start of the term of office to
which he has been elected.
example you put their natural- born citizen when you are not, the
fact that you lied there can be a basis of disqualification and
cancellation of your COC so it is pretty much impossible unless
you have Frivaldo’s case with all his circumstances. In effect this
ruling is no longer applicable because the COMELEC is now very
specific that the qualifications must be possessed on the day of the
election.
Q. Why does Frivaldo have a problem with citizenship?
Because he left the Philippines because of the Marcos Regime. He
was naturalized there so in short, he gave up his Filipino
citizenship. When Cory came into power, he now says that he
wants to be Filipino again
Q. At the time he ran for governor, was he already repatriated?
Not yet.
Q. At the time of election, was he already Filipino?
Not yet
Q. At the time of proclamation?
Not yet, he became a Filipino at the start of term of office.
Q. Issue on voter’s registration
SC said that the retroactive effect of repatriation cured.
Guji: This case was another accommodation.
Q. Is the Frivaldo doctrine controlling?
According to Sir, the Frivaldo doctrine may still hold true in the
sense that no contrary jurisprudence has been laid down by the
Supreme Court.
Q. What is the difference?
20,000
SC: this was a significant number of votes thus it is better to err in
favor of the sovereign will than to be right in the complex which
only little can understand. In other words, the people have spoken.
Summary: Frivaldo case
• He is more Filipino than anyone in the country.
• Caveat: This case is a league of its own. The SC liberalized
because he got more than 20k votes.
• In applying election laws, it would be far better to err in favor of
popular sovereignty than to be right in complex but little
understood legalisms.
You need to be a citizen when you intend to govern
Facts:
A disqualification case was filed against Frivaldo when he ran for
Governor of Sorsogon, by reason of his not being a citizen of the
Philippines. Apparently, prior to his filing of COC, he already
applied for repatriation. While his repatriation was not yet
approved during elections, it was however granted at the time of
his proclamation, albeit 2 hours late.
Issue: Whether Frivaldo can be validly proclaimed as governor.
Held:
Yes. The law does not specify any particular date or time when the
candidate must possess citizenship. In fact, the LGC speaks of
qualifications of “elective officials” and not of candidates. Hence,
unless otherwise expressly stated, such qualification should thus
be possessed when the elective official begins to govern – at the
time he is proclaimed and at the start of his term. But to remove all
doubts, the Court also held that the repatriation of Frivaldo
retroacted to the date of the filing of his application.
Atty. Guji:
Frivaldo is an anti-marcos activist who fled the country and
renounces his citizenship but saw hope when Cory Aquino was
elected so he came back ok? And run for public office but he was
not yet repatriated. That is why the issue here is that he is not yet a
Filipino citizen as required in under the constitution.
The problem in this case is this
-In citizenship, the law is silent as to when should you possess
the requirement as oppose to age where the language of the law
is very specific “on the day of the election”. In other words when
you say age
– it is determined at the day of the election; residence – 1 year
preceding the day of the election. Thus the Supreme Court saw an
opening to justify the candidacy of Frivaldo in which they ruled that
citizenship is only required upon assumption to office.
Take note: Be very careful because Frivaldo is a Sui generis. It
takes another Frivaldo case to apply the exact ruling.
Frivaldo won with 20 000 votes so the SC said here you must
respect the sovereign will and the choice of the people. And today
remember your COC can be cancelled because of material
misrepresentation which deals with CARL meaning you lied. For
! | UNIVERSITY OF SAN CARLOS
28
Q. When do you start to govern?
At the start of term of office
The law does not specify when he needs to qualify the citizen
requirement
This case is an exception and a special case. You can only invoke
this case if the facts are substantially the same
Is the election result considered by the SC?
Yes, SC said that the people has spoken
Citizenship need not be possessed at the time of filing of COC or
election, but must be at the start of the term. To apply this case
the facts must be substantially the same as frivaldo. This case is
not the general rule.
Q. When should you possess Filipino citizenship?
• The law does not specify any particular date or time when the
candidate must possess citizenship, unlike that for residence
(which must consist of at least one year's residency
immediately preceding the day of election) and age (at least
twenty three years of age on election day).
• The citizenship requirement in the Local Government Code is to
be possessed by an elective official at the latest as of the time
he is proclaimed and at the start of the term of office to which
he has been elected.
How to answer if confronted with such a question in the
exam?
If the facts of the case falls on all four with the circumstances of
Frivaldo, then you can answer in the same way. But make sure
that you qualify that it can be a ground for disqualification.
What are the unique circumstances attendant in the case of
Frivaldo?
1. He was forced to give up his Filipino citizenship and
political aspiration as his means of escaping the clutches
of Marcos’ dictatorship
2. At the first opportunity, he returned to the Philippines and
sought to serve his people once more and the people of
Sorsogon voted for him three times
3. His demonstrated tenacity and sheer determination to reassume his nationality of birth despite several legal setbacks speak more loudly, in spirit, in fact and in truth than
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
any legal technicality, of his consuming intention and
burning desire to re-embrace his native Philippines even
now at the ripe old age of 81 years.
4. He was stateless as the time he filed his COC as he has
long given up his US nationality
TN: No filing fee in filing for COC – otherwise it becomes a property
qualification.
Labo v. Comelec
One-liner: Philippine citizenship is not a cheap commodity that can
be easily recovered after its renunciation. It may be restored only
after the returning renegade makes a formal act of re-dedication to
the country he has abjured and he solemnly affirms once again his
total and exclusive loyalty to the Republic of the Philippines. This
may not be accomplished by election to public office.
Facts:
Labo was proclaimed mayor-elect of Baguio. A petition for quo
warranto was filed against him for being an Australian citizen by
virtue of his marriage with an Australian. Right after he divorced,
he sought for the change of his status from immigrant to returning
former Filipino citizen. However, he categorically declared that he
was an Australian citizen in a number of sworn statements he
voluntarily made and even sought to avoid the jurisdiction of the
barangay court on the ground that he was a foreigner.
Issue: Whether Labo’s proclamation was valid.
Held:
No. Labo is not now, nor was he on the day of the local elections, a
citizen of the Philippines. In fact, he was not even a qualified voter
under the Constitution itself because of his alienage. Hence, he
was therefore ineligible as a candidate for mayor of Baguio City.
These qualifications are continuing requirements; once any of
them is lost during incumbency, title to the office itself is deemed
forfeited. In the case at bar, the citizenship and voting
requirements were not subsequently lost but were not possessed
at all in the first place on the day of the election. The petitioner was
disqualified from running as mayor and, although elected, is not
now qualified to serve as such.
Atty. Guji:
Remember Frivaldo was repatriated and in fact his application was
approved hours before the proclamation and its effect retroact at
the time he applied thus his disqualification that he cannot be a
registered voter is cured.
Q. How did he become an Australian citizen?
Through Marriage but it was later on rendered nullified
Q. Did nullification render him a Filipino citizen?
No.
Q. What is his contention?
Labo is saying is since my marriage became annulled
Q. What should he have done to be a Filipino citizen again?
Naturalization, direct act of Congress or repatriation. He must
execute an affidavit to renounce allegiance towards the other
country.
Q. Did he perform any?
No.
Q. What about his contention that he became an Australian
citizen through marriage then the dissolution of such should
have rendered him a Filipino citizen again?
SC: If you lose Filipino citizenship by choice, it is not that easy to
get back. The issue of the nullification of marriage in Australia is
now between you and the Australian authorities. Its not between
you and us; it is now your problem.
Q. How about the margin, what did the SC said about the
margin?
It is not a loud, thunderous will of the people, since the margin of
votes in favor of Labo is only 2,100, just a whimper.
Philippine citizenship is not a cheap commodity that can be easily
recovered after its renunciation. This may not be accomplished by
election to public office.
SK OFFICIALS
QUALIFICATIONS
Sangguniang Kabataan Reform Act (RA 10742, SEC. 10.)
SEC. 10. Qualifications. – An official of the Sangguniang Kabataan,
either elective or appointee, must be:
1. a citizen of the Philippines,
2. a qualified voter of the Katipunan ng Kabataan,
! | UNIVERSITY OF SAN CARLOS
29
3. a resident of the barangay for not less than one (1) year
immediately preceding the day of the elections,
4. at least eighteen (18) years but not more than twenty-four
(24) years of age on the day of the elections,
5. able to read and write Filipino, English, or the local dialect,
6. must not be related within the second civil degree of
consanguinity or affinity to any incumbent elected national
official or to any incumbent elected regional, provincial,
city, municipal, or barangay official, in the locality where he
or she seeks to be elected, and
7. must not have been convicted by final judgment of any
crime involving moral turpitude.
Q. Example of the 2nd degree of consanguinity rule?
You cannot run for SK if your father is the barangay captain of the
same barangay.
Same rule if grandfather.
Q. If uncle?
Not prohibition because 3rd degree
Q. If you want to run for SK in barangay A but your father is
the Purongbarangay in barangay B
You can run because not in the same jurisdiction
Q. If you are the son of Duterte, can you run for SK?
No.
Q. If lolo is governor of Province of Cebu, and you want to run
for SK of Tudela?
No because same jurisdiction
Q. Who can be members of SK?
Members of Katipunan ng Kabataan
At least 15 but not more than 30
Garvida v. Sales Jr.
One-liner: For you to be an SK Chair you must be 18 yrs. Old but
not more than 24 yrs old on the day election.
Facts:
On March 16, 1996, Lynette Garvida applied for registration as
member and voter of the Katipunan ng Kabataan of Barangay San
Lorenzo, Bangui, Ilocos Norte. However, her application was
denied by the Board of Election Tellers since she exceeded the
age limit. She then filed a “Petition for Inclusion as Registered
Kabataan Member and Voter” with the Municipal Trial Court which
was granted by the said court.
Then, on April 23, 1996, Garvida filed her certificate of candidacy
for the position of Chairman, Sangguniang Kabataan, Barangay
San Lorenzo, Municipality of Bangui, Province of Ilocos Norte. On
the same date, Election Officer Dionisio Rios, per advise of
Provincial Election Supervisor Noli Pipo, disapproved petitioner’s
certificate of candidacy again due to her age.
Petitioner then appealed to COMELEC Regional Director Filemon
Asperin who set aside the order of respondents and allowed
petitioner to run. Earlier and without knowledge of COMELEC
officials, private respondent and petitioner’s rival Florencio Sales
Jr. filed with the COMELEC en banc a “Petition of Denial and/or
Cancellation of Certificate of Candidacy” via facsimile and
registered mail on April 29, 1996.
And, on May 2, 1996 respondent Riso issued a memorandum to
petitioner informing her of her ineligibility and giving hr 24 hours
why her certificate of candidacy should not be disapproved.
Also on the same date, the COMELEC en banc issued an order
directing the Board Election Tellers and Board of Canvassers to
suspend the proclamation of petitioner in the event she won in the
election. This is why on May 6, 1996, Election Day, Garvida was
not proclaimed the winner. She was only proclaimed on June 2,
1996. Said proclamation was “without prejudice to any further
action by the Commission on Elections or any other interested
parties.
AGE QUALIFICATION ISSUE:
The age requirement for the Katipunan ng Kabataan membership
is fifteen (15) but not more than twenty-one (21) years of
age(S424, LGC) while an elective official must be at least fifteen
(15) years but not more than twenty-one (21) years of age on
the day of his election (S428, LGC). The provision that an
elective official of the SK should not be more than 21 years of age
on the day of his election is very clear. The Local Government
Code speaks of years, not months nor days. When the law speaks
of years, it is understood that years are of 365 days each. The law
does not state that the candidate be less than 22 years on election
day. Petitioner must be a qualified voter prior to her eligibility as a
candidate for the election.
At the time of the filing of her
candidacy, petitioner is already more that the maximum age limit
of 21 years old, and just less than 10 days before she turns 22, at
the time of her proclamation.
The law said you should not be more than 21 yrs old at the time of
election.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
She said that the law means that you must not be 22 yrs old or
more. She is just 21 yrs old because she is not yet 22 she is only
21 and ten months old.
SC said that when you are 21 and a day old that means that you
are more than 21 yrs old and now disqualified to run. You must be
exactly 21 yrs old at most to be qualified to run.
Q. Can she not argue that she is still 21 and she is still not 22?
21 years old speaks of years which means 365 days. When you
say 21, it means the 365th day.
Q. Are you saying that if I am 21 years old and 1 day, I am
more than 21?
Yes
Q. But I’m not more than 22?
So you must complete the 365 day cycle and anything beyond that
you are more than 21 years old.
Q. If you are 24 years old and 6 months are you more than 24
years old?
Yes, because under the rules of statutory construction a year is 365
days. Not more than 24 years old means exactly 24 years old.
Atty. Guji’s:
Remember there is a new law for SK – RA 10742 (Qualifications
and Disqualifications).
Before one important qualification but rather disqualification is that
you must not be related to an incumbent government official with
the 4th civil degree of consanguinity. (NOT ANYMORE
APPLICABLE TODAY)
How to count the civil degree?
serving jail time. He was imprisoned but he was able to file a
COC and serve because again it was not yet final. His
conviction for rape was appealed as such this disqualification
does not apply to him.
Q. Now what if you are convicted?
You can still run, just wait 2 years after serving your sentence. In
short within 2 years after you serve your sentence you are
disqualified that period is the disqualification.
Q. Who are the persons are disqualified from running for
any elective local position?
Acts that reflects to your moral character
B. Those removed from office as a result of an administrative
case;
TN: that again FINALITY is the keyword. The Aguinaldo
doctrine have been abandoned by the Supreme Court
Aguinaldo doctrine:
If for example you are a mayor now and there is an
administrative case filed against you. If you run for the
election and you are re- elected – the people have condoned
you so the administrative case is removed. THIS DOES NOT
APPLY ANYMORE because of the Binay case.
C. Those convicted by final judgment for violating the oath of
allegiance to the Republic;
D. Those with dual citizenship;
TN: Here that it is not the choice of the person to be a dual
citizen that’s why before it is allowed that a person of dual
citizen can run for public office as long as he does not have
dual allegiance. But that was before.
Filipino citizenship is lost by:
1. Naturalization in a foreign country
2. Express renunciation of citizenship
3. Subscribing to an oath of allegiance to support the
Constitution or laws of a foreign country, all of which
are applicable to the petitioner.
Can be reacquired by:
1. Direct act of congress
2. Naturalization
3. Repatriation.
#
TN: the rules in political law are different from that of succession
(civil law).
- Here the parents of your adoptive parents can be counted if
they are incumbent.
- The same way that if your natural parent is incumbent since
you are adopted and you sever your ties with him/her you can
still run as you are strangers now in the eyes the law.
This is an attempt to prevent political dynasty of course the
Congress have not yet passed the Ati-Dynasty Bill but would you
expect the Congress would legislate against its interest? I doubt it.
The thing is for example my father is a mayor of Cebu City, I can
still run for SK in Mandaue City because my father and I do not
belong to the same jurisdiction so although we are family we are
separated by jurisdiction.
NOTE: NOW, its 2nd degree. See RA 10742
DISQUALIFICATIONS
Local Government Code of 1991, Section 40
Q. Who are the persons are disqualified from running for any
elective local position?
Disqualifications. - The following persons are disqualified from
running for any elective local position:
A. Those sentenced by final judgment for an offense involving
moral turpitude or for an offense punishable by one (1) year
or more of imprisonment, within two (2) years after serving
sentence;
Take note also that NOW under RA 9225 if you want to
reacquire Philippine citizenship take an oath of allegiance
that’s ok. But if you want to run for a public office there is
another requirement that is you must execute an affidavit
renouncing any and all foreign citizenship. The law says you
must execute it at the time of the filing of the COC but there
is a case here that says BEFORE or prior to filing of the
COC.
E. Fugitives from justice in criminal or non-political cases here
or abroad;
Q: How do we define FUGITIVES from justice?
includes not only those who flee after conviction to avoid
punishment but likewise those who, after being charged, flee
to avoid prosecution. This definition truly finds support from
jurisprudence and it may be so conceded as expressing the
general and ordinary connotation of the term. Remember the
bottom line here is flight from justice thus you will be covered
here and abroad.
F. 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 this Code; and
G. The insane or feeble-minded.
Q. When does a person become a dual citizen?
a. One parent (usu.father) is a citizen of a foreign country which
applies the principle of jus
sanguinis
b. Born in a state where the principle jus solis is applied
c. Marriage with a foreigner whose law vests unto his spouse
foreign citizenship as well
TN: Final judgment, in other words there are no other
remedies available under the law but to serve sentence
because the judgement here have reached finality.
Q. Why does the mere filing of a COC makes you abandon
your citizenship?
It contains declarations which calls for your allegiance or to defend
the Republic of the Philippines.
This answers the question “How did Jalosjos able to serve
and be elected for 3 consecutive terms when in fact he is
Reference:
Comelec Resolution No. 3253 - Sec. 2
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ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Contents of certificate of candidacy. - The certificate of candidacy
shall be under oath and shall state that the person filing it is
announcing his candidacy for the office and constituency stated
therein, that he is eligible for said office, his sex, age, civil status,
place and date of birth, his citizenship, whether natural- born or
naturalized; the registered political party to which he belongs; if
married, the full name of the spouse; his legal residence, giving
the exact address, the precinct number, barangay, city or
municipality and province where he is registered voter; his post
office address for election purposes; his profession or occupation
or employment; that he will support and defend the Constitution of
the Republic of the Philippines and will maintain true faith and
allegiance thereto; that he will obey the laws, orders, decrees,
resolution, rules and regulations promulgated and issued by the
duly-constituted authorities; that he is not a permanent resident of
or an immigrant to a foreign country; that he assumes the
foregoing obligations voluntarily without mental reservation or
purpose of evasion; and that the facts stated in the certificate are
true and correct of his own personal knowledge.
He shall also affix his signature, thumbmark and his latest passport
size photograph on the upper-right hand margin thereof; and, if he
so desires, a statement, in duplicate in not more than one hundred
words, containing his bio-data and program of government.
The person filing the certificate of candidacy may include one
nickname or stage name by which he is generally or popularly
known in the locality; Provided: That, no candidate shall use the
nickname, stage name or initials of another. In case of several
nicknames or stage names, only the nickname or stage name first
written shall be considered.
DUAL CITIZENSHIP
1987 Constitution, Article IV, Section 5
Dual allegiance of citizens is inimical to the national interest and
shall be dealt with by law.
Valles v. Comelec
One-liner: Dual citizenship as a disqualification refers to citizens
with dual allegiance. Her filing of a certificate of candidacy, where
she declared that she is a Filipino citizen and that she will support
and defend the Philippine Constitution and will maintain true faith
and allegiance thereto, sufficed to renounce her foreign
citizenship, effectively removing any disqualification as a dual
citizen.
Facts:
Lopez was running for governor. She was born in Australia with
Filipino father and Australian mother. Her citizenship was
questioned and was a dual citizen since Philippines follows jus
sanguinis while Australia follows jus solis.
Held:
SC said that being born in a foreign country does not automatically
disqualify her from running for public office. Involuntarily, she
acquired dual citizenship.
Court said that the dual citizenship in Section 40 relates to dual
allegiance.
In dual allegiance, you chose to acquire a foreign
citizenship while in dual citizenship, because of conflicting
laws among states, one becomes a citizen of those states.
Under the Philippine laws, we adopt jus sanguinis principle
wherein we recognize individuals who have Filipino parents
but was born in a different country, as a Filipino citizen.
The mere fact that Lopez was a holder of an Australian passport
and had an alien certificate of registration are not acts constituting
an effective renunciation of citizenship and do not militate against
her claim of Filipino citizenship. For renunciation to effectively
result in the loss of citizenship, the same must be express.
Q. When does dual citizenship arise?
It arises when as a result of the application of conflicting laws of
different countries, one becomes their citizens. It’s not that
person’s fault that why they are considered as citizens.
Q. Was she issued an Australian passport?
Yes.
The mere fact that Lopez was a holder of an Australian passport
and had an alien certificate of registration are not acts constituting
an effective renunciation of citizenship.
Renunciation must be express.
Q. If you are a dual citizen can the court blame you for being
so?
No You can only be blame if in the case of dual allegiance when
there is positive act
Mercado v. Manzano
One-liner: The provision that persons with dual citizenship are
prohibited from running or seeking public office must be
understood as referring to dual allegiance. The mere filing of
certificate of candidacy therefore has the effect of electing
Philippine citizenship and renouncing other foreign citizenships
and/or allegiances.
! | UNIVERSITY OF SAN CARLOS
31
Held:
Dual allegiance is different from dual citizenship. The former is a
result of the intentional act of an individual by some positive act to
owe loyalty to two or more states, while the latter may be obtained
by reason of the cross applications of the jus soli and jus sanguinis
principles. While dual citizenship is involuntary, dual allegiance is
the result of an individual’s volition.
Q. An argument was raised that before the Bureau of
Immigration and Deportation, Manzano admitted his foreign
citzenship and the continued use of passport. How was it
interpreted by the SC?
It was before his renunciation of American citizenship. Such acts
were mere assertions of a foreign national, does not vacate his
renunciation.
Q. Is dual citizenship similar to dual allegiance?
Dual citizenship is not dual allegiance.
Dual citizenship — is an involuntary act, there is no direct
participation on the part of the person. It
occurs by mere
operation of law. A result of the concurrent application of laws of
different countries.
Dual allegiance — there is a conscious effort. This is what is
prohibited by law.
If you are dual citizen insofar as this case is concerned, can you
run for public office? Let’s limit to Manzano. Dual citizenship,
you’re allowed. What is not allowed is that if you have dualallegiance. What’s wrong with dual-allegiance? Firstly, dualcitizenship arises when there are 2 concurrent laws applying.
However, when you have dual-allegiance, that disqualifies you
because when you run for public office, you should have complete
devotion to country. When you say dual-allegiance that’s being
unfaithful.
In this case, it was argued that even if Edu Manzano was a dual
citizen but at that time before the Bureau of Immigration, he
admitted he is an American Citizen holding an American Passport.
How did the SC address that? The SC said, the fact that he
admitted that he is American Citizen in the BOI and that he holds
American passport, these are mere assertions of his American
nationality, not citizenship. SO prior to the complete termination of
his dual-citizenship, if you say I am American, holding American
passport, these are mere assertions of American nationality.
Take note that the steps by w/c you re-acquire citizenship or you
abandon your dual- citizenship, insofar as Manzano is concerned,
is no longer enough.
Labo v. Comelec
One-liner: That foreign naturalization was nullified after a marriage
to a foreign national declared null and void does not automatically
restore dual citizenship.
Dual allegiance of citizens is inimical to the national interest and shall
be dealt with by law. Labo claims that his naturalization in
Australia made him at worst only a dual national and did not divest
him of his Philippine citizenship. Such a specious argument cannot
stand against the clear provisions of CA No. 63, which
enumerates the modes by which Philippine citizenship may be
lost:
1. Naturalization in a foreign country
2. Express renunciation of citizenship
3. Subscribing to an oath of allegiance to support the
Constitution or laws of a foreign country, all of which are
applicable to the petitioner.
It is also worth mentioning in this connection that under Article IV,
Section 5, of the present Constitution, "Dual allegiance of citizens
is inimical to the national interest and shall be dealt with by law."
Arty Guji:
Lobo here invokes that he won by a plurality of votes (2100) and he
said that the SC should listen to the will of the people “thunderous
victory” but the SC said its not that loud as opposed to Frivaldo.
Q. Is there a standard by which we can say that you have to
have this number of votes so that we can say that the
sovereign will have spoken?
There is no standard. Even if you win by only one vote if you are a
qualified candidate in the first place you are going to win, but if you
are disqualified or that you are not a candidate to begin with, even
if you win by let say a 100 000 votes you are going to lose
because you are not supposed to be there in the first place.
The reason behind there is because if you suffer one
disqualification in so far as CARL is concerned ok; when you lose
one qualification automatically you cannot be a candidate in any
point in time so no matter how many votes you have you cannot
take an oath of office.
TN: But if in the COC you lied on something that is not related to
CARL i.e. you state that you are a lawyer when you are only a law
graduate. That misrepresentation does not make you less of a
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
candidate. You might be liable for perjury because the COC is
under oath but it does not disqualify you as a candidate because
according to the SC that misrepresentation is harmless for as long
as it does not involve CARL.
Roseller de Guzman v. Comelec
One-liner: One who re-acquires Philippine citizenship under RA
9225, and wish to seek public office, shall comply with the
additional requirement of a personal and sworn renunciation of any
and all foreign citizenship before any public office authorized to
administer oath.
Facts:
A disqualification case was filed against De Guzman on the ground
that he is not a Filipino citizen but an immigrant and resident of the
US. He admitted that he was a naturalized American, however,
argued that he applied for dual citizenship under RA 9225 or the
Citizenship Retention and Re-Acquisition Act. He argues that mere
filing of COC constituted as a renunciation of his foreign
citizenship.
Issue: Whether De Guzman is disqualified from running.
Held:
Yes. He is disqualified in view of his failure to renounce his
American citizenship. It is true that he re-acquire his Philippine
citizenship after taking the oath of allegiance. However, RA 9225
imposes an additional requirement on those who wish to seek
elective public office, that is, to make a personal and sworn
renunciation of any and all foreign citizenship before any public
office authorized to administer oath. The mere filing of a COC
does not ipso facto amount to renunciation of his foreign
citizenship.
Gist:
A Filipino citizen naturalized in the U.S.
Repatriated through RA 9225
SC held that taking of an oath of allegiance is not enough to be
able to run for public office. One must execute a personalized
sworn statement under oath renouncing any and all foreign
citizenship before an officer (eg. Notary public) who is authorized
to take oath.
Q. The law says personal and sworn renunciation of any and
all other citizenship before any public officer or authorized to
administer oath. Who is that public officer?
Notary public.
Q. When is personal renunciation of any and all other
citizenship required?
If you will run for public office.
Q. Was the renunciation sworn?
No , that is why she said it is just a mere formality
Q. What does the SC court said? Is it true that in the
deliberations, it said that it is a mere formality?
Yes. But, the SC addressed it when it said to De Guzman, you are
right. But your argument is misplaced because, it is a mere formal
requirement. The SC said yes it is a mere formal requirement, but
not within the context of your argument. During the deliberation, it
is clear that they said that the renunciation is a mere formal
requirement. But, when you say formal requirement, it does not
mean that you are not going to follow the formalities involved. It
has to be sworn, notarized.
One who re-acquires Philippine citizenship under RA 9225, and
wish to seek public office, shall comply with the additional
requirement of a personal and sworn renunciation of any and all
foreign
citizenship before any public office authorized to
administer oath.
Q. Is there a difference between using and holding an
American passport?
Looking into the Manzano case, when Manzano said that he is an
American national holding an American passport, SC said that it is
a mere assertion that he is an American national. Take note of the
use of the word nationality, not citizenship. He is just holding it, not
using it. He retains the passport because his renunciation of
American citizenship is still in the process. He did not surrender
his passport at that time.
Q. Did he take his Oath of allegiance to the Philippines?
Yes.
Q. Did he execute a personal sworn statement of
renunciation?
Yes
- In other words, perfect for a public official candidate.
But he did something else. He continued using his passport.
! | UNIVERSITY OF SAN CARLOS
32
Q. What is the effect of continued use after renunciation?
Continued use of passport vacates the renunciation.
Used the passport 6 more times. Therefore, he is disqualified.
One Liner: Filing of a sworn statement is not the only qualification
to run for public office. We must not also do something that will
vacate our renunciation.
Otherwise stated, renunciation of foreign citizenship must be
complete, unequivocal, irreversible and permanent.
Q. Last year, previous batch, one of my exam questions was:
A candidate filed a COC but he was still holding his Liberian
passport. He comes to you. What is your advise?
90% of the students said “advise not to use the passport anymore”
for it will vacate his renunciation which will disqualify him to run for
public office. CORRECT. Do not answer “hide the passport”
especially during the bar exams. There are ethical considerations.
This will offend legal ethics.
Q. Another question: Office of the President and Ombudsman
has concurrent jurisdiction in disciplining public officials.
You can go either way. If you were the lawyer of the client,
where would you file the complaint?
• Do not answer: If the President is an ally of my client, I will file in
the Office of the President. Correct in so far as lawyering is
concerned but never in the bar exams. Ethical considerations.
Just a bit of advise.
Sobejana-Condon v. Comelec
Failure to renounce foreign citizenship in accordance with the exact
tenor of Section 5 (2) of RA 9225 renders a dual citizen ineligible
to run for and thus hold any elective public office.
There’s a need to renounce all other citizenship at the time of filling
of COC.
One-liner: The personal and sworn renunciation of any and all
foreign citizenship before any public office authorized to
administer oath is an additional qualification for elective office
specific only to Filipino citizens who re-acquire their citizenship
under Section 3 of R.A. No. 9225. Failure to renounce foreign
citizenship in accordance with the exact tenor of Section 5 (2) of
RA 9225 renders a dual citizen ineligible to run for and thus hold
any elective public office.
Gist:
Natural-born Filipino then naturalized in Australia
Executed an oath of allegiance to regain back Filipino citizenship
but executed an unsworn statement of renunciation in Canberra
(which was considered to be enough under Australian law to
renounce his Australian citizenship) but was not considered by SC
(should be a personalized sworn statement).
Q. It was contended that executing a sworn statement is a
mere formality?
House of Representative deliberations revisited by SC. Not clear
but Atty. Said something about overriding the effect. Sorry=)
Q. When should you execute the sworn statement?
Upon filing of the COC but one is not precluded under the law to
execute the same prior to the filing of COC.
Macquiling v. Comelec
One-liner: Anyone who seeks to run for public office must be
solely and exclusively a Filipino citizen. To allow a former Filipino
who reacquires Philippine citizenship to continue using a foreign
passport — which indicates the recognition of a foreign state of the
individual as its national — even after the Filipino has renounced
his foreign citizenship, is to allow a complete disregard of this
policy.
Facts:
Arnado is a natural born Filipino citizen and subsequently acquired
American citizenship by naturalization. He reacquired his Filipino
citizenship by taking his Oath of Allegiance to the Philippines and
that he renounced his American citizenship. However, after
renouncing his American citizenship, he used his U.S. passport at
least six times.
Held:
The requirement that the renunciation must be made through an
oath emphasizes the solemn duty of the one making the oath of
renunciation to remain true to what he has sworn to. Allowing the
subsequent use of a foreign passport because it is convenient for
the person to do so is rendering the oath a hollow act. It devalues
the act of taking of an oath, reducing it to a mere ceremonial
formality.
It must be stressed that what is at stake here is the principle that
only those who are exclusively Filipinos are qualified to run for
public office. If we allow dual citizens who wish to run for public
office to renounce their foreign citizenship and afterwards continue
using their foreign passports, we are creating a special privilege
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
for these dual citizens, thereby effectively junking the prohibition in
Section 40 (d) of the Local Government Code.
Gist:
Reacquired Filipino citizenship but thereafter used his Green Card
and foreign passport.
SC ruled that although the acts were not provided for under the law
as grounds for disqualification it signifies continuing allegiance to
that foreign country. It recants the oath of allegiance he executed.
It devalues the act of taking an oath reducing it to a mere
formality.
According to Atty, he renounced his renunciation. Still a Filipino but
disqualified to run for public office.
FUGITIVES OF JUSTICE
Marquez v. Comelec
One-liner: Fugitive from justice includes not only those who flee
after conviction to avoid punishment but likewise those who, after
being charged, flee to avoid prosecution. This definition truly finds
support from jurisprudence and it may be so conceded as
expressing the general and ordinary connotation of the term.
Facts:
Marquez filed a petition for quo warranto against the winning
candidate, respondent Rodriguez, for being a fugitive from
respondent. Allegedly, at the time respondent filed his COC, a
criminal charge against him for 10 counts of insurance fraud or
grand theft of personal property was still pending before the court
of Los Angeles. A warrant for his arrest was issued but has yet to
be served on account of his alleged flight from that country.
Issue: Whether Rodriguez, who at the time of the filing of his COC,
is said to be facing a criminal charge before a foreign court and
evading a warrant for his arrest comes within the term "fugitive
from justice”.
Held:
"Fugitive from justice" includes not only those who flee after
conviction to avoid punishment but likewise those who, after being
charged flee to avoid prosecution. However, whether or not
Rodriguez is a "fugitive from justice” under the definition thus
given was not passed upon by the Court.
Gist:
Petitioner filed a petition for quo warranto against the winning
candidate (respondent Rodriguez) for being a fugitive from justice.
He has been charged with 10 counts of insurance fraud or grand
theft of personal property pending in the court of Los Angeles. A
warrant was issued for his arrest but has not yet been served on
account of alleged flight to the country.
Q: It was raised as a defense that what was contemplated
under the law is that there should be a final judgment first
before he can be removed from public office. Was Rodriguez
correct? What is the proper interpreation of the “phrase
fugitive from justice”?
No. In this case the phrase “fugitive from justice” was to be
understood not only as to include those who flee after conviction
to avoid punishment but likewise to those who after being charged
flee to avoid prosecution.
congressman twice! Even Arroyo. She is still a congresswoman
even if placed on house/hospital arrest.
• But in case he already flew before summons were served, this
does not apply. Court has no jurisdiction over his person yet.
Rodriguez v. Comelec
One-liner: Intent to evade on the part of a candidate must be
established by proof that there has already been a conviction or at
least, a charge has already been filed, at the time of flight. Not
being a "fugitive from justice" under this definition, Rodriguez
cannot be denied the Quezon Province gubernatorial post.
Facts:
Rodriguez sought a reconsideration for the above ruling.
Held:
"Fugitive from justice" includes not only those who flee after
conviction to avoid punishment but likewise those who, after being
charged flee to avoid prosecution. The definition thus indicates that
the intent to evade is the compelling factor that animates one's
flight from a particular jurisdiction. And obviously, there can only
be an intent to evade prosecution or punishment when there is
knowledge by the fleeing subject of an already instituted
indictment, or of a promulgated judgment of conviction.
Rodriguez' case just cannot fit in this concept. His arrival in the
Philippines from US preceded the filing of the felony complaint in
the Los Angeles Court and of the issuance on even date of the
arrest warrant, by almost 5 months. It was clearly impossible for
Rodriguez to have known about such felony complaint and arrest
warrant at the time he left the US, as there was in fact no
complaint and arrest warrant much less conviction to speak of yet
at such time. What prosecution or punishment then was
Rodriguez deliberately running away from?
PERMANENT RESIDENTS IN FOREIGN COUNTRY
Caasi v. CA
One-liner: Application for immigrant status and permanent
residence in the U.S. and possession of a green card attesting to
such status are conclusive proof of being a permanent resident of
the US.
Held:
To be qualified to run for elective office in the Philippines, the law
requires that the candidate who is a green card holder must have
waived his status as a permanent resident or immigrant of a
foreign country. Therefore, his act of filing a certificate of candidacy
for elective office in the Philippines, did not of itself constitute a
waiver of his status as a permanent resident or immigrant of the
United States. The waiver of his green card should be manifested
by some act or acts independent of and done prior to filing his
candidacy for elective office in this country. Without such prior
waiver, he was disqualified to run for any elective office.
Atty. Guji:
Because the fact that you are a green card holder says that either
you are a permanent resident or immigrant outside the country
and being such you actually abandoned not only your residence
but also domicile in the country in which case you suffer the
disqualification of residence under CARRL.
Atty added: It could be considered as a ground for disqualification
since it reflects a propensity on the part of the person to stay away
from justice.
The phrase “without mental reservation or purpose of evasion” is
exactly illustrated in this case.
• Respondent had 10 counts of insurance fraud or grand theft of
personal property cases still pending before the Municipal Court
of LA, California. He did not receive summons because he flew
to the Philippines and then ran for governor against Marquez.
Marquez filed a disqualification case against Rodriguez being a
fugitive from justice.
• Case remanded back from SC to COMELEC.
• COMELEC had an incorrect definition of fugitive from justice.
• This guy did not have finality of judgment. But there are cases
filed against him, pending. No final judgment of conviction yet.
• Fugitive from justice is one who not only escapes to avoid
punishment after judgment with finality but also who flees to
avoid prosecution or being charged or prosecuted.
• So even if you only have a pending case, when you flee from it,
you are a fugitive from justice.
• These 2 cases were consolidated because they have the same
objective, the disqualification of private respondent Miguel for
the position of mayor of Bolinao on the ground that he is a green
card holder, hence, a permanent resident of USA, not of
Bolinao.
• Miguel admitted that he holds a green card issued to him by the
US Immigration Service, but he denied that he is a permanent
resident of USA. He allegedly obtained the green card for
convenience in order that he may freely enter the US for his
periodic medical examination and to visit his children there.
• He is implying that he has no intention of remaining there. It is
only for his medical condition and to visit his children.
• But he actually holds a green card. What is the effect of holding a
green card? He has allegiance to that country. Yes and in
relation to residency? He is a permanent resident of that country
and has abandoned his residence/domicile in our country.
Q. Are you a fugitive from justice if there is a pending case in
the country then you escape prosecution or escape from
punishment after finality of judgment? Do you need to cross
country to be called fugitive from justice?
It does not matter if you escape the justice system here or abroad.
If you disrespect our justice system, all the more you are
disqualified.
• NOTE: One can still run for public office even if with pending
case or convicted but no finality. As long as there is no final
conviction, or still on appeal. one can still run. Remember
Jalosjos. He was already serving time in Muntinlupa but won
! | UNIVERSITY OF SAN CARLOS
33
THE INSANE OR FEEBLE-MINDED
To be disqualified they must be declared as such by competent
authority.
Q: What if taong grasa mag-file COC can we decline that?
No. We cannot in the absence of a declaration of competent
authority that such person is insane or feeble minded.
Competent authority – government doctors, private psychiatrist
might be persuasive but to be safe gov’t doctors are preferred.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
The COMELEC has the power to screen candidates and disqualify
them if deemed unfit just imagine the nuisance candidate that
could possibly file COC. So if the Comelec disqualify you they are
saying you don’t have a chance. We are not saying here that just
because you are poor you are a nuisance candidate because you
cannot man a nationwide campaign nor funds and resources (well
probably the Comelec is saying that reality check). But not all are
disqualified remember the candidate JC who run alongside PNoy,
Villar, Gibo. The candidate was virtually unknown nor their party
but the Comelec allowed them because they are serious and they
have a very sensible platform of government in so far as the
environment is concerned.
VACANCY IN ELECTIVE LOCAL OFFICES
HOW VACANCY IS FILLED
Q. How is the vacancy caused by a Sangguniang member not
belonging to any political party, filled?
The Local Chief Executive shall appoint a qualified person to fill the
vacancy, upon the recommendation of the sanggunian concerned.
1. Appointment = vacancy in councilors; co-equals
2. Succession = applies to highest ranking officials (Gov, V-Gov,
Mayor, V-mayor)
• Local chief executive appoints officials, does not apply to all
• But if governor dies, it is by succession. Succeeded by vicegovernor
• Mayor dies, Vice-mayor becomes mayor.
• Vice-mayor dies, first councilor succeeds Vice-mayor (highest
ranking councilor)
• So there is vacancy in the office of the councilor = fill out with
appointment
• 2nd councilor cannot succeed = co-equal with other councilors;
same rank
• No succession among councilors. No succession among coequals. Succession presupposes a lower position assuming a
higher position.
• Appoint a councilor who is not an incumbent. He is there already.
Appoint an outsider.
• Does it matter if one who vacated as first councilor belongs to
one political party? YES. As long as it is in the vacancy in
councilorial position. So, if you belong to a political party and
you vacate that position, you must be replaced by somebody
from the same political party. REASON: for continuity
• If the first councilor is an independent candidate, you may
appoint anyone qualified.
DATE OF ELECTIONS
DATE OF ELECTIONS
1. National, District, Local elective officials – Second Monday
of May 1992 and every three (3) years thereafter.
2. Regional elective local officials – Second Monday of May
2013 and every three (3) years thereafter.
In other words we synchronized the ARMM with the local and
national elections.
3. Barangay and SK officials – Last Monday of October 2007
and every three (3) years thereafter.
It used to be the 4th Monday of October but it was reset to 4th
Monday of 2017 but after that its no longer the the 4th Monday but
second Monday of 2020 and every three years thereafter.
ADJUSTMENT OF PRE-ELECTION REQUIREMENTS
ADJUSTMENT OF PRE-ELECTION REQUIREMENTS
RA 6646, Section 29
Designation of Other Dates for Certain Pre-elections Acts. - 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.
Akbayan v. Comelec
One-Liner: The right of suffrage is not at all absolute. It is subject
to existing substantive and procedural requirements embodied in
the Constitution and statute books. The act of registration is an
indispensable precondition to the right of suffrage, for it is part and
parcel of the right to vote and an indispensable element in the
election process.
Facts:
The AKBAYAN-Youth sought the extension of registration of voters
for the May 2001 election since about 4 million youth were not
able to register and are now disenfranchised. The Comelec denied
such petition.
! | UNIVERSITY OF SAN CARLOS
34
Issue: Whether Comelec was right in denying the petition.
Ruling.
Yes. The right of suffrage, although accorded a prime niche in the
hierarchy of rights embodied in the fundamental law, ought to be
exercised within the proper bounds and framework of the
Constitution and must properly yield to pertinent laws skilfully
enacted by the Legislature.
The Comelec was well within its right to do so pursuant to the clear
provisions of RA 8189 which provides that no voter’s registration
shall be conducted within 120 days before the regular election.
The right of suffrage is not absolute. It is regulated by measures
like voters registration which is not a mere statutory requirement.
The State, in the exercise of its inherent police power, may then
enact laws to safeguard and regulate the act of voter’s registration
for the ultimate purpose of conducting honest, orderly and
peaceful election. The law aids the vigilant and not those who
slumber on their rights.
In this case, it is during the impeachment of Erap. The youth
because of that incident had a renewed passion for the government
according to them. But they did not tell the SC that they files late.
Their first premise was that the COMELEC has residual powers to
fix other periods and dates to ensure accomplishment of the
activities. Second premise registration is a pre-election activity.
Why can’t the COMELEC extend that? That’s what they are
saying. But the SC said although it is true that they have residual
powers and it is true that registration is a pre- election activity, it
should be premised on reasonable performance because contrary
to popular belief, your application for registration remains an
application if not approved by the ERT.
The ERAP impeachment sparked interest among the youth aged
18-21 but they were not able to beat the deadline in voter’s
registration schedule so they filed a petition asking the SC to
extend the voter’s registration and by doing so they invoked that
power of COMELEC which gives the COMELEC the power to
adjust pre-election activities. They said “pre-election activities”
include voter’s registration.
Voter’s registration may be done everyday except on the prohibited
period 120 days before the election and 90 days before special
election. There is even registration on a holiday, Saturdays and
Sundays so there is absolutely no reason for you not to register
except procrastination.
Problem was petitioners filed their petition within the 120-day
prohibited period and the period they asked for also fell within the
120-day period prior to elections
SC: Cannot extend registration. Aside from the fact that voter’s
registration is not the only thing that the COMELEC does. After
registration, it also finalizes its projects on precincts, meaning
when we finalize the number of voters in a polling place; when we
cluster/merge precincts. Basically, a polling place consists only of
a maximum of 200 voters. But on election day, a polling place may
consist of 1000 voters because of clustering. This is to save cost
because we are using PCOS machine. Instead of using 5 PCOS
machines for 5 polling places, we only use 1 because of clustering
precincts. We also finalize voter’s lists and appoint board of
election inspectors. Voter’s registration is not limited to filing of
form; it goes through a process. COMELEC works all year round.
Do not ask COMELEC to do the impossible and petitioners should
be blamed for not beating the deadline. Even if COMELEC may
adjust pre-election activities, it must be done under reasonable
conditions.
NATURE OF BARANGAY ELECTIONS
Omnibus Election Code, Section 38
Conduct of elections. - The barangay election shall be non-partisan
and shall be conducted in an expeditious and inexpensive
manner.
Q. What is the nature of the barangay elections?
It is non-partisan and must be conducted in an expeditious and
inexpensive manner. Not supporting, belonging to or biased in
favor of any political party.
Q. What are the specific acts of partisanship?
1. Filing of COC representing or allowing to be represented
as a candidate of any political party or any other
organization.
2. No party, organization intervenes in the nomination or in
the filing of COC
3. Party or organization giving support, directly or indirectly,
material or otherwise favorable to or against a candidate.
Exceptions:
A. Relatives within the fourth civil degree of consanguinity or
affinity
B. Campaign staff – not more than 1 in every 100 registered
voters
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Caveat: It should not be in any manner construed to impair the
freedom of individuals to support or oppose any candidate for any
barangay office.
Q. What is the purpose of the nonpartisan character?
Barangay is the basic unit or the base of the pyramid of both social
and political structure. It should be insulated from divisive and
debilitating partisan politics.
Q. What do you mean by non partisan?
No parties right?
As long there is no concrete evidence that a political party is
intervening. Pwede lang na ang informal grouping (eg. Team
Performance etc.)
Q. What are the functions of barangay officials?
1. Have legislative and consultative powers
2. Act as agents of neutral community action such as
distribution of basic services
3. Instruments in conducting plebiscites and referenda.
4. Settle local disputes
Occena v. Comelec
Facts:
The constitutionality of an old law which had virtually the same
provision on the non-partisan character of barangay elections was
challenged for being violative of the constitutional guarantees on
the right to form associations and societies for purposes not
contrary to law.
Held:
The right to form associations is not absolute. It is subject to
pervasive police power, thus may be constitutionally regulated to
serve important and appropriate public interest. The right to
organize remains intact but certain activities are restricted. The ban
is narrow, not total. It operates only on concerted or group action of
political parties. Acting individually, party, party members may
intervene.
That appropriate public interest is what we called the non
partisanship of the Barangay elections. What is prohibited is the
group action not acting individually. But again propriety.
Q. What is the purpose of non-partisan character?
Barangay is the basic unit or the base of the pyramid of both social
and political structure. It should not be insulated from divisive and
debilitating partisan politics.
Barangay officials have legislative and consultative power
Act as agents of neutral community action such as distribution of
basic services Instruments in conducting plebiscites and referenda
Settle local disputes. (Occena v Comelec)
interested parties are afforded equal opportunity to be heard, shall
postpone the election therein to a date which should be
reasonably close to the date of the election not held, suspended
or which resulted in a failure to elect but not later than thirty days
after the cessation of the cause for such postponement or
suspension of the election or failure to elect.
Q. What are the grounds for postponement of election?
1. Violence
2. Terrorism
3. Loss or destruction of election paraphernalia or records
Especially during automated elections. I said earlier that
that ballots are polling place specific. What if all the ballots
for a certain place was lost? There cannot be an election
there. Election paraphernalia was lost. That’s the problem
with automated elections.
4. Force majeure
5. Other analogous causes of such a nature that the holding
of a free, orderly and honest election should become
impossible in any political subdivisions.
Q. Who has the jurisdiction to postpone an election?
Only the COMELEC EN BANC not its division. It is administrative in
nature.
Q. What is the process of postponement of election?
1. Motu proprio by the Comelec or upon a verified petition by
any interested party
2. Due notice and hearing where all parties are afforded
equal opportunity to be heard
Q. What could be those other analogous causes?
Example: That earthquake in Bohol. We were about to take the
barangay elections but it was postponed.
Q. When can it postpone?
Not more than 30 days
Q. Is that 30 period mandatory?
No. That is administrative in nature
Q. Who has jurisdiction?
Commission En banc
Q. What if the ground is not one of those enumerated?
Recommend to congress to reset the election.
Q. Can there be postponement of election nationwide?
There is no prohibition. If there is enough reason to postpone, then
it is possible.
COMMENTS:
• Non-partisan = prohibits the participation or intervention of
political party and any organization for that matter. What is
prohibited is the concerted group effort to promote candicacy.
Everybody in barangay election is an individual party.
Collaboration such as Team Unity / Team Performance is
already a circumvention of the prohibition.
• Reason for non-partisan character: barangay officials are the first
line of defense, serves as grassroots. They do not only legislate;
also consultative. They even settle disputes. They must be
shielded from the conflicts.
COMMENTS:
• GROUNDS: must be serious
• Loss or destruction of election paraphernalia or records (e.g.
official ballots, election returns,
voter’s list). But COMELEC may improvise e.g. when ballots are
delayed, we can borrow ballots from other barangays.
COMELEC is empowered to make snap judgments on election
day
• Force majeure = e.g. earthquake last October 2013. Voting
Centers (public schools) suffered damage so barangay election
was postponed.
Q. Can the mayor, in his personal capacity, endorse the
candicacy of a particular punong brgy?
You can argue both ways – either on personal capacity or the
circumvention. However, in the Omnibus Election Code Sec 38, it
says, “Nothing in this section, however, shall be construed as in
any manner affecting or constituting an impairment of the freedom
of individuals to support or oppose any candidate for any
barangay office.”
Montesclaros v. Comelec
In case of doubt, you rule in favor of the preferred freedom of
expression. It was also argued here that non-partisan character
violates right to form association.
Q. Who shall postpone elections?
• Commission en banc
• By majority vote of its members
• Motu proprio
• Upon verified petition by any interested party
• After due notice and hearing
• All interested parties are afforded equal opportunity to be heard.
(Section 4, R.A. 7166, cited in Benito v Comelec)
But SC said, this does not take away the right to associate, it only
limits, prohibiting the concerted group effort to promote candidacy.
POSTPONEMENT OF ELECTION
GROUNDS FOR POSTPONEMENT OF ELECTION
Omnibus Election Code, Sec 5
Postponement of election. - When for any serious cause such as
violence, terrorism, loss or destruction of election paraphernalia or
records, force majeure, and other analogous causes of such a
nature that the holding of a free, orderly and honest election
should become impossible in any political subdivision, the
Commission, motu proprio or upon a verified petition by any
interested party, and after due notice and hearing, whereby all
! | UNIVERSITY OF SAN CARLOS
35
The Comelec cannot postpone, it merely recommends, as when it
is operationally very difficult to simultaneously hold the barangay
and SK elections, legislative action to amend the law resetting the
election is required.
POSTPONEMENT OF ELECTION, JURISDICTION
Q. What if the ground is not one of those enumerated?
The Commission cannot postpone, it merely recommends, as when
it is operationally very difficult to simultaneously hold the barangay
and SK elections, legislative action to amend the law resetting the
election is required. (Montesclaros v Comelec)
Benito v. Comelec
The Commission sitting en banc by a majority vote of its members,
motu proprio or upon verified petition by any interested party, after
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
due notice and hearing where all the interested parties are
afforded equal opportunity to be heard.
Q. Can the election officer postpone elections?
Bashier v. Comelec
The election officer, on the basis of threats of violence and
bloodshed, cannot by herself declare a failure of election and reset
it even with the agreement of the candidates.
COMMENTS:
BASHIER V COMELEC = there was violence; safety of everybody
was threatened.
Candidates said that they will not complain if elections will be reset.
And the COMELEC officer postponed the election.
• SC: cannot postpone, no jurisdiction. Jurisdiction pertained only to
the commission en banc Common in ARMM elections
DATE OF POSTPONEMENT
Q. When is election postponed?
To a date reasonably close to the date of election not held,
suspended or failed, but not later than 30 days after cessation of
the cause.
Bashier v. Comelec
But it should not be too close as to preclude notice to the
electorate. The announcement made minutes before the
supposed voting is not a notice at all to the electorate who should
be given ample notice of the exact schedule and venue of the
election.
Hassan v. Comelec
But it should not be unreasonably too close for all voters to be
notified of the changes. For even in highly urbanized areas,
dissemination poses a problem. In the absence of proof of actual
notice to the special elections reached a great number of voters,
the special election is invalid. One day notice is insufficient. E
VERY VOTER MUST BE NOTIFIED OF THE DATE AND
VENUE OF ELECTIONS.
Less than a day’s notice of time and transfer of polling places 15
kilometres away deprive the voters of opportunity to participate in
the elections. Even if voting occurred. Where the difference is only
219 votes and only 328 out of 1,546 registered voters were able to
vote, there is failure of elections.
Take note: It is always a case-to-case basis. The most important
requisite is that there is actual notice to the voters.
That is why as long there is sufficient evidence that will support the
jurisdiction of the COMELEC. It still belongs to the COMELEC.
The attitude of the SC is that do not disturb the COMELEC, they
know what they are doing. Unless there is grave abuse of
discretion amount to lack or excess of jurisdiction. Remember that
whatever the decision of the COMELEC, you cannot appeal it to
the SC. The remedy is certiorari based on grave abuse of discretion
amount to lack or excess of jurisdiction.
FAILURE OF ELECTION
Q. What is the form of notice? Can it be in Social Media?
Unfortunately not, it has not been sanctioned by law. When we say
notice, we mean by resolution of the COMELEC.
Omnibus Election Code
Sec. 6. Failure of election. - If, on account of force majeure,
violence, terrorism, fraud, or other analogous causes the election
in any polling place has not been held on the date fixed, or had been
suspended before the hour fixed by law for the closing of the
voting, or after the voting and during the preparation and the
transmission of the election returns or in the custody or canvass
thereof, such election results in a failure to elect, and in any of
such cases the failure or suspension of election would affect the
result of the election, the Commission shall, on the basis of a
verified petition by any interested party and after due notice and
hearing, call for the holding or continuation of the election not held,
suspended or which resulted in a failure to elect on a date
reasonably close to the date of the election not held, suspended
or which resulted in a failure to elect but not later than thirty days
after the cessation of the cause of such postponement or
suspension of the election or failure to elect.
Q. Is the 30-day period mandatory?
Lucero v. Comelec
No. Thus, it cannot be argued that once it lapses, the authority to
postpone transfers to Congress. In fixing the date of special
elections, the Comelec sees to it that it should:
• Not be later than 30 days
• Reasonably close to the election not held.
R.A. 7166
Sec. 4. Postponement, Failure of Election and Special Elections. The postponement, declaration of failure of election and the calling
of special elections as provided in Sections 5, 6 and 7 of the
Omnibus Election Code shall be decided by the Commission
sitting en banc by a majority vote of its members. The causes for
the declaration of a failure of election may occur before or after
the casting of votes or on the day of the election.
First premise is that the jurisdiction to postpone belongs to
COMELEC but after 30 days it belongs to the jurisdiction of the
Congress.
In case a permanent vacancy shall occur in the Senate or House of
Representatives at least one (1) year before the expiration of the
term, the Commission shall call and hold a special election to fill
the vacancy not earlier than sixty (60) days nor longer than ninety
(90) days after the occurrence of the vacancy. However, in case of
such vacancy in the Senate, the special election shall be held
simultaneously with the succeeding regular election.
There has to be prior notice. One day is time too short. They must
be given notice in advance in order for them to prepare. Again
sufficient notice.
Hassan v. Comelec
A one day notice is too short. The time for holding it must be
authoritatively designated in advance.
Q. Who determines “reasonably close”?
Still the COMELEC.
TN: It always depends on the peculiarity of the circumstances. The
Comelec is given enough leeway to determine which date is ideal
for the special elections
This is not only a question of fact but also according to the
prevailing circumstances, the peculiarity of circumstances. If these
2 criteria warrant or call for the COMELEC to find facts, it must not
be disturbed by the SC. The conditions are in the best position to
determine the facts. If fact-finding, almost always the SC respects
it, unless there is grave abuse of discretion, or if it is arbitrary or
not supported by substantial evidence.
Pangandaman v. Comelec
The holding of elections within the next few months from the
cessation of the cause may still be considered reasonably close to
the date of election not held.
30 day period is not mandatory. It may lapse. How long? It depends
on the circumstances. Here, even if it is already few months, SC
considered it reasonable close to the date of election.
Q. What are the grounds for declaration of failure of election?
1. Force majeure
2. Violence
3. Terrorism
4. Fraud
5. Other analogous causes the election in any polling place
was not held:
• On the date fixed
• Suspended before the hour fixed by law for close
voting
• After voting and during the preparation and
transmission of election returns or in their custody of
canvass, such election results in a failure to elect
and it affects election results (e.g. ballot switching)
The period of 2 years after the failure of election is still reasonable
close to the election not held if the delay is not attributable to the
registered voters but to the legal maneuvers of the parties.
Comments:
• Election starts at 7AM.
• For manual elections, it ends at 3PM.
• If prior to 3PM, it was suspended already, it gives rise to a ground
for failure of elections.
• For automated elections, we extended the voting hours until
5PM. In 2013, extended further to 7PM to accommodate
everybody (thousand voters in a polling place).
If it is not the fault of the voters, much less the COMELEC,
considered 2 years as reasonably close especially if the delay is
caused by the maneuvers of the lawyers of the parties.
Q. Can fraud be a ground for postponement of election?
No. It cannot because it is merely speculative and premature
because there was no election yet.
Lucero v. Comelec
! | UNIVERSITY OF SAN CARLOS
36
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Q. What are the 3 instances where a failure of election may be
declared?
1. Election in any polling place was not held on the fixed date
on account of force majeure, terrorism, fraud, violence and
other analogous cases.
2. Election in any polling place had been suspended before
the close of voting on account of force majeure, terrorism,
fraud, violence and other analogous cases
3. After voting and during preparation and transmission of
election returns or inter custody of canvass, such election
results in failure to elect on the same grounds.
Batabor v Comelec
Somehow it does not apply to automated elections. But there are
instances that it can still apply, like for example you are in a
mountain barangay, the signal is not that strong. What they
(teachers) do is they bring the memory card to the canvassing
area. What if along the way, somebody else takes it? That’s why it
can still apply.
Mitmug v. Comelec
Q. Sir, how about during election and there still people lining
up but its already 5pm. Are they still allowed to vote?
If the deadliest deadline is 5pm. If for example, if there are areas
where people are still queuing within 30 meters towards the polling
place. What we do is we ask their names, jot them down tell them
to wait for their turn to votes. Our goal is not to disenfranchise the
people.
Canicosa v Comelec, 282 SCRA 512
Facts:
A mayor was proclaimed winner after obtaining a majority of 24,
000 votes. But the second placer petitioned to declare failure of
election due to fraud, violence, intimidation, threat, vote-buying
and delay in the delivery of election documents and paraphernalia.
He alleges that:
• Missing names of registered voters
• More than half of the registered voters failed to vote
because others voted for them
• He was credited with less votes than he actually obtained
• Control data of election returns were not filled out in
some polling
Held:
These grounds do not warrant failure of election as none of them
fall under the 3 instances where failure of election may be
declared.
• Missing names in voter’s list – Remedy is inclusion or
exclusion or annulment of book of voters PRIOR TO
ELECTIONS.
It happens when you fail to vote for two consecutive
elections, your votes will be deactivated. The
COMELEC informs you of the deactivation of your votes
only after the deactivation not before as what the law
says.
For purpose of counting, Barangay elections is
considered regular except SK.
TN: Since a copy of the complete list of voters is
published in the Comelec website and posted in the
bulletin of the Comelec.
• More than half failed to vote because others already voted
for them – remedy is challenge identity of voter during
voting inside the polling place. (Role of watchers)
• Less votes – should have been raised before the Board of
Election Inspectors (BEI) that counted the votes.
You’ll think it is unfair, but no it is not unfair because the remedy is
not Failure of Election but Election Protest. But the problem is
Election protest takes a lot of time and it might be resolved after
term of office.
TN: Manifest error readily seen by the naked eye – raise that before
the Board of Election Canvassers that counted the votes)
• Control data of election returns were not filled – should
have been raised before the Board of Canvassers that
canvassed the election returns.
• Unsecured ballot boxes – a mere formal defect that does
not affect their integrity.
• Late election returns – not a ground for failure.
Q. What are the two requisites for the en banc to act on a
verified petition to declare failure of election?
1. No voting took place in the polling places on the date fixed
by law
2. The votes that were not cast affect the result of elections
! | UNIVERSITY OF SAN CARLOS
37
Facts:
A Punong barangay lost by 29 votes. He alleged 100 of his relatives
and supporters were not able to vote because the BEI in 3 polling
places discontinued the voting. It was found out however than out
of 316 voters, 220 actually voted.
Held:
There is no failure of election. If indeed voters were prevented from
voting, the remedy is election protests.
Facts:
Voter turnout for the election was very low. Only 2,330 out of
9,830 registered voters therein cast their votes. Upon Other
candidates filed separate petition for the declaration of failure of
election in some or all precincts.
Held:
Even if less than 25% of the electorate in the questioned polling
places cast their votes, it must still be respected. Low turnout does
not result in failure of elections. It only means no interest on the part
of the people to vote.
The law does not require majority of voters cast their votes, mere
plurality of votes is enough for a candidate to be proclaimed a
winner
Canicosa v. Comelec
Facts:
A candidate for the position of Mayor filed with the COMELEC a
Petition to Declare Failure of Election and to Declare Null and Void
the Canvass and Proclamation because of alleged widespread
frauds and anomalies. He avers that more than 1/2 of the
legitimate registered voters were not able to vole, instead,
strangers voted in their behalf.
Held:
The grounds cited do not warrant a declaration of failure of
election. There are only three (3) instances where a failure of
election may be declared, namely:
a) the election in any polling place has not been held on the date
fixed on account of force majeure, violence, terrorism,
fraud, or other analogous causes;
b) the election in any polling place had been suspended before
the hour fixed by law for the closing of the voting on
account of force majeure, violence, terrorism, fraud, or
other analogous causes; or
c) after the voting and during the preparation and transmission
of the election returns or in the custody or canvass thereof,
such election results in a failure to elect on account of
force majeure, violence, terrorism, fraud, or other
analogous causes.
Late election returns is not a ground for failure of election. That the
election returns were delivered late and the ballot boxes brought to
the office of the Municipal Treasurer unsecured,
i.e., without padlocks nor self-locking metal seals cannot impel us
to declare failure of election. The late deliveries did not convert the
election held in Calamba into a mockery or farce to make us
conclude that there was indeed a failure of election.
Sardea v. Comelec
Facts:
While the canvassing of the election returns was going on, some
sympathizers of a defeated mayoralty candidate stormed the
municipal building and destroyed all election materials and
paraphernalia including, among others, the copies of election
returns furnished to respondent Board.
The Municipal Board of Canvassers convened and assessed the
extent of the damage wrought by the demonstrators. It discovered
that the election returns in the possession of the MTC Judge were
intact, so it ordered the retrieval of said election returns for use in
the canvass. Several people filed a petition to declare a failure of
election.
Held:
The pre-conditions for declaring a failure of election are:
1. no voting has been held in any precinct or precincts
because of force majeure, violence or terrorism
2. the votes not cast therein suffice to affect the results of the
elections.
The language of the law clearly requires the concurrence of these
two circumstances to justify the calling of a special election.
The destruction and loss of the copies of the election returns
intended for the Municipal Board of Canvassers on account of
violence is not one of the causes that would warrant the
declaration of a failure of election because voting actually took
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
place as scheduled and other valid election returns still existed.
Moreover, the incident did not affect the result of the election.
For as long as there is voting, regardless of number, there is no
failure of election. It only fails if the sovereign will has been muted
and cannot be ascertained. If the will of the people is
determinable, it must be respected.
DECLARATION OF FAILURE OF ELECTION, JURISDICTION
Q. Can you go to the SC?
No. Premature. It is within the jurisdiction of the commission en
banc
Q. Who declares failure of election?
• Comelec en banc = ADMINISTRATIVE FUNCTION
• The RTC, on account that a victory was attended by significant
badges of fraud, cannot declare failure of election in guise of
voiding the proclamation of the winner despite obtaining 25, 000
majority votes during canvass, 27, 000 votes by physical count
and 17, 000 votes by revision. (Carlos v Angeles)
COMMENTS: Canvass is when we consolidate results from all
polling places. If there is protest, there will be physical count,
looking into who is voted for without first determining whether that
votes counts. Revision is equivalent to the RTC’s ballot
appreciation. Appreciation is determining whether the particular
vote can be counted for the candidate. Manual elections have
nuisances.
E.g. RONULO. Then, you might vote for ROMULO. Wrong spelling.
But, there is a principle in ballot appreciation “sounds alike are
counted”. After revision, he is still the winner. But RTC said his
victory was attended by badges of fraud e.g. unsecured ballot
boxes and BROWN OUT. Suddenly, results were changed.
SC said RTC cannot nullify votes on the ground of significant
badges of fraud because you are actually circumventing the
jurisdiction of the COMELEC en banc. RTC judge cannot declare
failure of election in the guise of voiding proclamation.
The election officer, on account of threats of violence and
bloodshed, cannot by herself validly suspend of or postpone
elections even with the agreement of the candidates. (Bashier v
Comelec)
Benito v. Comelec
Facts:
Rival Mayoralty candidate won by 48 votes. Losing candidate then
filed a petition to declare failure of election in precincts 3 precincts:
15A, 6A/6A1 and 17A.
Allegedly, five election precincts were clustered namely, precincts
15A, 6A/6A1, 17A, 2A/2A1 and 13A. On election day, voting was
disrupted before noon by armed men. The voting resumed an hour
after the firing occurred.
Notwithstanding the turn of events, the ballot boxes for the 5
precincts were taken together with those from the 19 other precincts
for counting. The votes from precincts 15A, 6A/6A1 and 17A were
excluded upon objection by losing candidate's counsel who, it is
claimed, arrived only after the ballots from the other 19precincts
had already been tabulated.
Considering that rival candidate would still lead petitioner by 7
votes even if all 41 votes from the 3 excluded precincts were
counted in the latter's favor, his rival candidate was proclaimed
mayor.
Losing candidate filed a petition to declare failure of election and to
call a special elections in precincts 15A, 6A/6A1 and 17A.
Held:
It is odd that Benito singled out only 3 precincts when there were 2
other precincts in the same school threatened by armed men. There
was no objection raised to the count of votes in the said two
precincts during the counting of votes at the counting center. So
why a selective objection to the 3 precincts herein?
Further, there cannot be a failure of election in a political unit if the
will of the majority has not been defiled and can be ascertained,
as in the case at bar. All the law requires is that a winning
candidate must be elected by a plurality of valid votes, regardless
of the actual number of ballots cast. Thus, even if only 1 out of
177 voted in a polling place, there is still no failure of election
provided there is notice.
Note: As long there is notice, no turn-out in a precinct does not
mean a failure of elections. For all you know, all others had no
interest to cast their votes. The power to nullify elections must be
exercised with greatest care so not to disenfranchise the electorate.
In short, the power to declare failure of election must be the last
remedy.
! | UNIVERSITY OF SAN CARLOS
38
Loong v. Comelec
Facts:
Automated elections systems was used for the regular elections
held in the ARMM which includes the Province of Sulu. Some
election inspectors and watchers informed the head of the
COMELEC Task Force of discrepancies between the election
returns and the votes cast for the mayoralty candidates. To avoid
a situation where proceeding with automation will result in an
erroneous count, the head suspended the automated counting of
ballots and immediately communicated the problem to the
technical experts of COMELEC and the suppliers of the
automated machine. After the consultations, the experts told him
that they found nothing wrong with the automated machines. The
error was in the printing of the local ballots, as a consequence of
which, the automated machines failed to read them correctly.
The head called for an emergency meeting of the local candidates
and the military-police officials overseeing the Sulu elections,
including the respondent winning candidate and petitioner losing
candidate for governor. COMELEC issued Minute Resolution
ordering a manual count but only in the said municipality. After a
manual count, respondent was proclaimed governor-elect.
Two of the losing candidates questioned the resolutions of the
COMELEC ordering a manual count of the votes.
Held:
Losing candidates were given every opportunity to oppose the
manual count. They were orally heard and submitted written
position papers and their representatives escorted the transfer of
ballots to Manila and watched the manual count from the
beginning to the end.
COMELEC is given the broad power to "enforce and administer all
laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum and recall". This provision gives
COMELEC all the necessary powers for it to achieve the objective
of holding free, orderly, honest, peaceful and credible elections.
Embraced therein is the power to order a manual count where
automated counting fails. Furthermore,
1. No. 8436 did not prohibit the manual counting when machine
count does not work.
Carlos v. Angeles
Facts:
The Municipal Board of Canvassers, proclaimed petitioner Carlos
as the duly elected mayor of Valenzuela having obtained 102,688
votes, the highest number of votes, over that of respondent
Serapio who obtained 77,270 votes.
Respondent filed with the RTC an election protest challenging the
election results. RTC rendered its decision and set aside the final
tally of valid votes because of its finding of "significant badges of
fraud”.
Despite the plurality of valid votes in favor of protestee Carlos, the
trial court set aside his proclamation and declared protestant
Serapio as duly elected mayor of Valenzuela City.
Held:
In a petition to annul an election under Section 6, Batas Pambansa
Blg. 881, two conditions must be averred in order to support a
suffic ient cause of action:
1. the illegality must affect more than 50% of the votes cast
and
2. the good votes can be distinguished from the bad ones.
It is only when these two conditions are established that the
annulment of the election can be justified because the remaining
votes do not constitute a valid constituency.
Assuming that the trial court was correct in holding that the final tally
of valid votes as per revision report may be set aside because of
the "significant badges of fraud," the same would be tantamount to
a ruling that there were no valid votes cast at all for the
candidates, and, thus, no winner could be declared in the election
protest case. In short, there was failure of election. In such case,
the proper remedy is an action before the Commission on
Elections en banc to declare a failure of election or to annul the
election. However, the case below was an election protest case
involving an elective municipal position which, under Section 251
of the Election Code, falls within the exclusive original jurisdiction of
the appropriate RTC.
Nonetheless, the annulment of an election on the ground of fraud,
irregularities and violations of election laws may be raised as an
incident to an election contest. Such grounds for annulment of an
election may be invoked in an election protest case. However, an
election must not be nullified and the voters disenfranchised
whenever it is possible to determine a winner on the basis of valid
votes cast, and discard the illegally cast ballots. In this case, the
petitioner admittedly received 17,007 valid votes more than the
protestee, and therefore the nullification of the election would not
lie. The power to nullify an election must be exercised with the
greatest care with a view not to disenfranchise the voters, and only
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
under circumstances that clearly call for such drastic remedial
measure.
Ruiz v. Comelec
The power to nullify an election must be exercised with the greatest
care so as not to disenfranchise voters.
In other words if you are to declare failure of elections that should
must be the last remedy.
Benito v. Comelec
Facts: Elections is only 3 out of 5 polling places were sought to be
nullified even if disruption of voting was caused by a common act,
firing guns to intimidate voters.
Held: Petition to declare failure of election should not be selective
as to polling places if they were exposed to the same ground.
Batabor v. Comelec
But if your intention is to nullify the elections, that cannot be done
because you will usurp the power of COMELEC to declare failure
of election. (Take note that these cases are still under manual
election)
Bashier v. Comelec
The election officer, on account of threats of violence and
bloodshed, cannot by herself validly suspend or postpone
elections even with the agreement of the candidates.
Q. When is the date of special elections after failed elections?
It must not be later than 30 days after cessation of causes like
force majeure, violence, terrorism, fraud or other analogous
causes.
Q. When is the date of special elections to fill out permanent
vacancy?
A. District representatives – not earlier than 60 days nor longer
than 90 days after the office is vacated.
Facts: Proclamation of one position was sought to be annulled on
the ground of failure of election.
Exception: If it occurs within a year prior to the expiration of
the term. If so, it shall be simultaneous with the next regular
elections.
Held: Failure of election necessarily affects all elective positions in
the place where elections failed. To hold otherwise is
discriminatory and violates equal protection clause.
B. Senators – simultaneous with the succeeding regular
election.
Canicosa v. Comelec
Late election returns is not a ground for failure of election. That the
election returns were delivered late and the ballot boxes brought to
the office of the Municipal Treasurer unsecured, i.e., without
padlocks nor self-locking metal seals cannot impel us to declare
failure of election. The late deliveries did not convert the election
held in Calamba into a mockery or farce to make us conclude that
there was indeed a failure of election.
FAILURE OF ELECTION, JURISDICTION
Omnibus Election Code, Article VI
Sec. 45. Postponement or failure of election. - When for any
serious cause such as violence, terrorism, loss or destruction of
election paraphernalia or records, force majeure, and other
analogous causes of such nature that the holding of a free, orderly
and honest election should become impossible in any barangay,
the Commission, upon a verified petition of an interested party and
after due notice and hearing at which the interested parties are
given equal opportunity to be heard, shall postpone the election
therein for such time as it may deem necessary.
If, on account of force majeure, violence, terrorism, fraud or other
analogous causes, the election in any barangay has not been held
on the date herein fixed or has been suspended before the hour
fixed by law for the closing of the voting therein and such failure or
suspension of election would affect the result of the election, the
Commission, on the basis of a verified petition of an interested party,
and after due notice and hearing, at which the interested parties are
given equal opportunity to be heard shall call for the holding or
continuation of the election within thirty days after it shall have
verified and found that the cause or causes for which the election
has been postponed or suspended have ceased to exist or upon
petition of at least thirty percent of the registered voters in the
barangay concerned.
When the conditions in these areas warrant, upon verification by
the Commission, or upon petition of at least thirty percent of the
registered voters in the barangay concerned, it shall order the
holding of the barangay election which was postponed or
suspended.
C. President and Vice-President – If there is vacancy in both
offices, Congress shall pass a bill setting a special to be
held not earlier than 45 days nor later than 60 days from
the time of such call. Once set, the special election cannot
be postponed because this is an urgent matter.
Exception: If vacancy occurred 18 months before the next
presidential elections.
SPECIAL ELECTION
SPECIAL ELECTION
1987 Constitution, Article VI, Section 9
In case of vacancy in the Senate or in the House of
Representatives, a special election may be called to fill such
vacancy in the manner prescribed by law, but the Senator or
Member of the House of Representatives thus elected shall serve
only for the unexpired term.
What we’re saying is that if the President dies, the VP succeeds, in
other words no special elections. If the VP dies, the senate
nominates and congress affirms. Generally, we all know the
process.
But the exception is this, if all four died (Pres, VP, Senate Pres,
HOR), there will be a special election for the President and the VP.
Take note that is an exception.
Omnibus Election Code
Sec. 7. Call of special election. 1. In case a vacancy arises in the Batasang Pambansa eighteen
months or more before a regular election, the Commission shall
call a special election to be held within sixty days after the
vacancy occurs to elect the Member to serve the unexpired
term.
2. In case of the dissolution of the Batasang Pambansa, the
President shall call an election which shall not be held earlier
than forty-five nor later than sixty days from the date of such
dissolution.
Q. Who declares failure of election?
The Commission sitting en banc by a majority vote of its members,
motu proprio or upon verified petition by any interested party, after
due notice and hearing where all the interested parties are
afforded equal opportunity to be heard.
The Commission shall send sufficient copies of its resolution for the
holding of the election to its provincial election supervisors and
election registrars for dissemination, who shall post copies thereof
in at least three conspicuous places preferably where public
meetings are held in each city or municipality affected.
Again, COMELEC because it is administrative.
R.A. 7166
Sec. 4. Postponement, Failure of Election and Special Elections. The postponement, declaration of failure of election and the calling
of special elections as provided in Sections 5, 6 and 7 of the
Omnibus Election Code shall be decided by the Commission
sitting en banc by a majority vote of its members. The causes for
the declaration of a failure of election may occur before or after the
casting of votes or on the day of the election.
Carlos v. Angeles
The RTC, on account that a victory was attended by significant
badges of fraud, cannot declare failure of election in the guise of
voiding the proclamation of the winner despite obtaining 25,000
majority votes during canvass, 27,000 votes by physical count and
17,000 votes by revision.
Elections are won on the basis of a majority or plurality of votes
cast and received by the candidates. The trial court gravely
abused its discretion in rendering the decision proclaiming
respondent the duly elected mayor even without a majority or
plurality votes cast in his favor. For, in all republican forms of
government the basic idea is that no one can be declared elected
and no measure can be declared carried unless he or it receives a
majority or plurality of the legal votes cast in the election.
! | UNIVERSITY OF SAN CARLOS
39
In case a permanent vacancy shall occur in the Senate or House of
Representatives at least one (1) year before the expiration of the
term, the Commission shall call and hold a special election to fill
the vacancy not earlier than sixty (60) days nor longer than ninety
(90) days after the occurrence of the vacancy. However, in case of
such vacancy in the Senate, the special election shall be held
simultaneously with the succeeding regular election.
FIXING DATE OF SPECIAL ELECTION
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
The 30-day period is NOT mandatory. It is the discretion of the
COMELEC to determine what is reasonably close or not, which is
determined the by circumstances and facts of each case.
Pangandaman v. Comelec
Facts:
One of the candidates asserted that the COMELEC acted with
grave abuse of discretion amounting to lack of jurisdiction in
ordering the holding of special elections more than 30 days after
failure to elect in said municipalities. He insists on a strict
compliance with the holding of special elections not later than 30
days after failure to elect pursuant to Section 6 of the Omnibus
Election Code which provides that the holding of special elections
shall not be later than 30 days after failure to elect.
Held:
The Court ruled that in fixing the date for special elections, the
COMELEC should see to it that:
1. it should not be later than 30 days after the cessation of the
cause of the postponement or suspension of the election
or the failure to elect; and
2. it should be reasonably close to the election not held,
suspended or which resulted in the failure to elect.
The first involves a question of fact. The second must be
determined in the light of the peculiar circumstances of a case.
Thus, the holding of elections within the next few months from the
cessation of the cause of the postponement, suspension or failure
to elect may still be considered "reasonably close to the date of the
election not held”. The dates set for the special elections were
actually the nearest date from the time total/partial failure of
elections were determined.
some authority and the law charges voters with knowledge of the
time and place of the election (statutory notice).
SPECIAL ELECTION AFTER FAILURE OF ELECTION
Omnibus Election Code
Sec. 6. Failure of election. - If, on account of force majeure,
violence, terrorism, fraud, or other analogous causes the election in
any polling place has not been held on the date fixed, or had been
suspended before the hour fixed by law for the closing of the
voting, or after the voting and during the preparation and the
transmission of the election returns or in the custody or canvass
thereof, such election results in a failure to elect, and in any of
such cases the failure or suspension of election would affect the
result of the election, the Commission shall, on the basis of a
verified petition by any interested party and after due notice and
hearing, call for the holding or continuation of the election not
held, suspended or which resulted in a failure to elect on a date
reasonably close to the date of the election not held, suspended or
which resulted in a failure to elect but not later than thirty days after
the cessation of the cause of such postponement or suspension of
the election or failure to elect.
REQUISITES
Lucero v. Comelec
Facts:
Two candidates for district representative were separated by a mere
175 votes. But no election was done in one polling place with 213
voters due to ballot snatching. But the leading candidate
questioned the authority of the Comelec to call for a special
election after almost two years.
NOTICE OF SPECIAL ELECTION
There must be prior notice and sufficient time for the electorate to
prepare. The form of notice is by resolution by the COMELEC.
Held:
There are two requisites for holding a special election:
1. There is failure of election
2. Failure affects the results of the election
Sufficiency of notice is a question of fact
Best manifestation: Notice registered made to each and every
voter.
Since only 175 votes separate them, the 213 votes in the polling
place where election failed could still affect the results of the
election. Hence, it is still statistically probable for the special
election to affect or change the final result of the election.
Hassan v. Comelec
The delay is not attributable to the voters of the polling place where
election failed but to the legal maneuvers of parties. Thus, the
holding of the special election almost two years after the regular
election is still “reasonable close to the date of election not held.”
One-liner: A one day notice is too short. The time for holding it
must be authoritatively designated in advance.
Facts:
Due to threats of violence and terrorism in the area there was failure
of elections in 6 out of 24 precincts. A special election was set but
the members of the BEI again failed to report for duty in their
respective polling places. The next day, the COMELEC rescheduled the elections in these precincts one day after notice
and moved the venue at an Elementary School, which is 15 km
away from the designated polling places.
The difference between the first and second place is only 219 votes.
The candidate who garnered second place filed a petition
assailing the validity of the re-scheduled special elections.
Held:
It is essential to the validity of the election that the voters have
notice in some form, either actual or constructive of the time, place
and purpose thereof. The time for holding it must be authoritatively
designated in advance. The requirement of notice even becomes
stricter in cases of special elections where it was called by some
authority after the happening of a condition precedent, or at least
there must be a substantial compliance therewith so that it may
fairly and reasonably be said that the purpose of the statute has
been carried into effect.
The sufficiency of notice is determined on whether the voters
generally have knowledge of the time, place and purpose of the
elections so as to give them full opportunity to attend the polls and
express their will or on the other hand, whether the omission
resulted in depriving a sufficient number of the qualified electors of
the opportunity of exercising their franchise so as to change the
result of the election.
From the foregoing, there was insufficiency of notice given as to
the time and transfer of the polling places. Out of the 1,546
registered voters in the five (5) precincts only 328 actually voted.
The low turnout of voters is more than sufficient proof that the
elections conducted on that day was vitiated. A less than a day's
notice of time and transfer of polling places 15 kilometers away
from the original polls certainly deprived the electors the
opportunity to participate in the elections. A one (1) day notice is
too short. The time for holding it must be authoritatively
designated in advance.
Tolentino v. Comelec
Although the Comelec failed to call and give notice, the special
election is still valid as the right and duty to hold the election
emanate from the statute and not from any call for the election by
! | UNIVERSITY OF SAN CARLOS
40
CALLING OF SPECIAL ELECTION, JURISDICTION
Benito v. Comelec
It is the COMELEC en banc which has the exclusive power to
postpone, to declare a failure of election, or to call a special
election (Section 6 of the Omnibus Election Code).
The Commission sitting en banc by a majority vote of its members,
motu proprio or upon verified petition by any interested party, after
due notice and hearing where all the interested parties are
afforded equal opportunity to be heard.
Part II — Suffrage
SUFFRAGE DEFINED
Suffrage is right to vote. So do not use right to suffrage since it will
already be redundant. Suffrage or right to vote.
Nolasco v. Comelec
One-liner: Suffrage is the bedrock of republicanism. It is the means
by which the people express their sovereign judgment. Its free
exercise therefore must be protected especially against the
purchasing power of the peso.
Facts:
The proclamation of mayoralty candidate was voided after he was
disqualified for vote-buying but he obtained the highest number of
votes. The second placer insists he should be proclaimed winner.
Held:
The candidate who obtains the second highest number of votes may
not be proclaimed winner in case the winning candidate is
disqualified. The second placer is not the choice of the people.
The dispute involves not only the mayoralty, it concerns suffrage
which is the bedrock of republicanism.
Comment:
• If your COC is cancelled, there is no candidate to begin with due
to falsities. In this case, it is different because there is really a
candidate but the only way that he committed an offense which
is a ground for disqualification, the implication is the 2nd placer
cannot be proclaimed. As opposed to if there was no candidate
in the first place because of material misrepresentation, the 2nd
placer can be proclaimed.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
• In this case, the 2nd placer argues he must be proclaimed
because in the 1st placer was disqualified. But the SC said he is
not the choice of the people. Just remember bed rock of
republicanism.
People v. San Juan
One-liner: Every unlawful obstacle, by whatever means or
method, interposed to the free entry of a voter into the polling
place to cast his vote, strikes at the very heart of the right of
suffrage.
Facts:
A couple was charged with an election offense for preventing a
voter from entering the polling place. But the information was
quashed for insufficiency because it failed to negate the exception
that there were more than 40 voters waiting inside the polling
place.
Held:
The exception does not form part of the offense hence need not be
alleged in the information. It is a matter of defense. The validity of
this view is affirmed when we realize that the case involves no
less than suffrage, which is the bedrock of all institutions.
Indeed, each time the enfranchised citizen goes to the polls to
assert this sovereign will, that abiding credo of republicanism is
translated into living reality. If that will must remain undefiled at the
starting level of its expression and application, every assumption
must be indulged in and every guarantee adopted to assure the
unmolested exercise of the citizen's free choice. For to impede,
without authority valid in law, the free and orderly exercise of the
right of suffrage, is to inflict the ultimate indignity on the democratic
process.
CONSTITUTIONAL BASIS OF SUFFRAGE
Article V, Section 1, 1987 Constitution
Suffrage may be exercise by all citizens of the Philippines, not
otherwise disqualified by law, who are at last 18 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 6 months
immediately preceding the election. No literacy, property or other
substantive requirement shall be imposed on the exercise of
suffrage.
TN:
• All citizens of the Philippines, not otherwise disqualified by law
• At least 18 years old
• Resident of the Philippines for at least 1 year immediately
preceding the elections
• Resident of the place where he proposes to vote at least 6
months immediately preceding the election
The requirement of 6 months residence is not
necessarily prior to registration; it is only necessary prior
to election. This is because registration is merely a
proposal to vote (so you do not need to comply with
the 6 month residency yet during registration, provided
that on the day of election, the 6 month requirement has
already been complied)
Your registration is a proposal to vote. Registration
is not equivalent to residence.
• No literacy, property and other substantive requirement shall be
imposed on the exercise of suffrage.
Comment:
• What does “suffrage may” mean?
• It is optional. It is a mere right but can be waived.
• For you to be able to register, the period of your residence is not
prior to registration but prior to election. There is no such this as
flying voter if flying voter you mean those who vote who are not
residence of that place. Even residence, it is not necessary prior
to registration but it is prior to elections.
• If you vote in Cebu City, one day pa gani ka naabot, you just
want to register there, you are allowed provided 6 months prior
to elections you are able to prove you are a resident of that
place. Take note that when you go to an election office to
register, you actually trying to propose to vote. It is a proposal to
vote and not a proposal to secure a voter’s ID. Voter’s ID is not
necessary for you to be able to vote. It is only necessary if there
is a challenge as to your identity.
HISTORY OF SUFFRAGE
HISTORY OF SUFFRAGE IN THE PHILIPPINES
Q. Is suffrage an obligation or a right?
1.
Section 1, Article V, 1935 Constitution
Suffrage may be exercise by male citizens. Suffrage for
women may be extended by the National Assembly through
a plebiscite affirmed by at least 300,000 women qualified to
vote.
2.
Section 1, Article VI, 1973 Constitution — mandatory
Suffrage shall be exercised by citizens of the Philippines not
otherwise disqualified by law.
! | UNIVERSITY OF SAN CARLOS
41
3. Section 4, Omnibus Election Code — mandatory
It shall be the obligation of every citizen qualified to vote to
register and cast his vote.
4. Section 261, Omnibus Election Code
Any person who, having all the qualifications and none of the
disqualifications as a voter, fails without justifiable cause to
register as a voter in an election, plebiscite or referendum in
which he is qualified to vote.
Penalty for failure to register and vote:
• Imprisonment of not less than 1 year but not more than 6
years without probation (because it is classified as an
election offense)
• Disqualified to hold public office
• Deprivation of suffrage
5. Section 1, Article V, 1987 Constitution
Discretionary Suffrage may be exercise by all citizens of the
Philippines not otherwise disqualified by law.
SUFFRAGE FOR OVERSEAS ABSENTEE VOTERS
SUFFRAGE FOR OVERSEAS ABSENTEE VOTERS
Section 2, Article V, 1987 Constitution
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.
TN: “Secrecy and sanctity of the ballot” – no one should know who
you voted for while you are inside the polling place.
Section 5 (d), RA 9189 Overseas Absentee Voting Act
GR: An immigrant or permanent resident who is recognized as
such in the host country is disqualified from voting under this Act
• Immigrant or permanent resident outside Phils =
abandonment of domicile. For purposes of election,
domicile and residence are the same. Residence is a req
for registration
XPN:
Unless he executes an affidavit upon registration that:
1. He shall resume actual permanent residence in the country
within 3 years from approval of registration
2. He has not applied for citizenship in another country
3. Failure to return results in the removal of the name from
the National Registry of Absentee voters (but vote
remains valid)
4. Permanent disqualification to vote in absentia.
Precinct — address or barangay or sitio. Your territory
Polling place — classroom where you cast your vote
Voting center — school where you cast your vote
Macalintal v. Comelec
Facts:
Section 5 of the Absentee Voting Act was assailed as
unconstitutional based on the following grounds:
1. It violates the Constitution which requires that a voter must
be a resident of the country
2. In Caasi v. CA, it was held that a green card holder
immigrant to the US is deemed to have abandoned his
domicile and residence in the Philippines
3. The Constitution does not allow provisional registration or a
promise by a voter to perform a condition precedent to be
qualified to vote
4. Congress should not circumvent the Constitutional
requirement on suffrage by providing a condition which
amends the residence requirement
5. Suffrage should only be granted to persons possessing
qualifications on the day of election
Issue:
Does Section 5(d) of RA No. 9189 allowing the registration of
voters who are immigrants or permanent residents in other
countries by their mere act of executing an affidavit expressing
their intention to return to the Philippines, violate the residency
requirement in Section 1 of Article V of the Constitution?
Held:
No. Absentee voting is an exception to the regular system of voting.
It is intended to accommodate soldiers and sailors and other
qualified voters who, on election day, are absent from the place
where they are residents or registered. The execution of the
affidavit is not the enabling or enfranchising act. It is not only proof
of intention to return, but more importantly, it serves as an express
declaration that the domicile was not abandoned.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Section 5 (d) does not circumvent the Constitution. Instead, it
complies with a constitutional mandate which requires that
Congress legislate absentee voting that presupposes the qualified
citizen abroad is not physically present in the country.
SUFFRAGE FOR LOCAL ABSENTEE VOTERS
SUFFRAGE FOR LOCAL ABSENTEE VOTERS
Q. Who are qualified?
1. EO 157 - Any person who, by reason of public functions and
duties, is not in his place of registration on election day, may
vote in a city or municipality where he is assigned on election
day.
2. Members of the AFP and PNP and other government officers
and employees who, on election day, may be temporarily
assigned to perform election duties in a place where they are
not registered voters.
• It does not mean that all AFP and PNP can avail of this,
there is a requirement that they should be prevented in
voting in the area where they are registered because of
their election duties
3. Members of the Board of Election Inspectors – they may vote in
the polling place where they are assigned on election day,
provided they are registered voters in the city, municipality or
province and their voting is noted in the minutes.
• Teachers
4. 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.
If you're a media person, you may vote in the area where you
are assigned.
Q. Who can they vote for?
1. EO 157 – For the 1987 election, they can vote only for
senators
2. RA 7166 – President, Vice-President and Senators
3. RA 10380 – President, Vice-President, Senators and Party-list
They can only vote for national positions, exactly because they
are not in the locality where they reside and are registered to vote.
SUFFRAGE FOR DISABLED AND ILLITERATE VOTERS
SUFFRAGE FOR DISABLED AND ILLITERATE VOTERS
Section 2, Article V, 1987 Constitution
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 Comelec may promulgate to protect the secrecy of
the ballot.
Q. Who may be assisted?
1. A person with disability
2. A senior citizen who is illiterate or physically unable to
personally prepare the ballot
Provided:
A. Such physical inability is of such nature as to prevent the voter
from personally accomplishing the ballot.
• You lost one leg, ofc you are a person with disability. But
your disability does not prevent you from voting, thus
you are not entitled an assistor
• An assistor would mean that there is another person who
knows of your vote, thus should be the last resort.
B. Such physical inability or illiteracy is indicated in the
registration record.
• If not indicated in the registration record, you shall not be
treated as PWD/Illiterate
• But what if disability occurred after registration? You can
still avail of the privileges of PWD If the physical
inability is manifest upon day of election.
• However, rules are strict when it comes to illiteracy
because this is prone to abuse/modus operandi
Senior Citizens and PWD - share with the regular voters.
5 from the regular and 5 from the pwd.
Priority is not monopoly
Q. Who can assist?
1. Relative by consanguinity or affinity within the fourth civil
degree
2. If none, person of confidence who belong to the same
household.
3. By any member of the Board of Election Inspectors
! | UNIVERSITY OF SAN CARLOS
42
Provided: That the assistor be of voting age, but not
necessarily registered
TN: Not every PWD is entitled to an assister.
Q. How do the assistors vote?
1. Assistor votes inside the voting booth
2. Declared under oath to fill out the ballot strictly according to
the instructions of the voter and not to reveal the contents
of the ballot
Limitation: Assistor cannot assist more than 3 times.
Except: The Board of Election Inspectors
WON the assistor voted for who the person intended is between
the both of them, COMELEC cannot intervene. That is why the
person is given the choice who shall assist him as it should be
founded on trust and confidence.
Creation of Precincts for Persons with Disabilities and Senior
Citizens
• an accessible polling place is created, usually in the ground
floor
• with assistive devices
• manned by people trained to provide assistance to PWD and
illiterates
CONTINUING REGISTRATION OF PWDS AND ILLITERATE
Q. Who may be assisted in voter’s registration?
1. Illiterate persons
2. Persons with disability
Q. Who can assist?
1. Illiterate – Election officer or member of the accredited
citizen’s arm
2. PWDs – Election officer or member of the accredited
citizen’s arm or relative within the 4th civil degree of
consanguinity or affinity
Q. How assisted?
1. Illiterate or PWD is under oath
2. Interviewed and answers are recorded
3. Contents of the form is read aloud
• Divulging of information is allowed because unlike voting,
registration is not within the purview of secrecy of the
ballot – registration lang man.
4. The accomplished form shall be subscribed by the
applicant
5. Attested by the majority of the members of the Board
VOTER’S REGISTRATION
VOTER’S REGISTRATION DEFINED
Q. What is meant by voter’s registration?
Section 3, RA 8189
The act of accomplishing and filing of a sworn application for
registration by a qualified voter before the election officer of the
city or municipality wherein he resides and including the same in
the book of registered voters upon approval by the Election
Registration Board.
• Personal presence is necessary because of the need for
biometrics
Your personal presence or appearance is required when you
register. You must be there.
Upon approval by the Election
- you are not automatically registered because there is still
need for approval
- until ERB approves, you are not a registered voter
Yra v. Abano
One-liner: Registration regulates the exercise of the right of
suffrage. It is not a qualification for such right.
Facts: An aspiring lawyer from the province went to the city to study
law where he also registered as a voter. When he became a
lawyer, he returned to the province, ran for and won as municipal
president. However, he was not able to register as a voter in the
municipality because he failed to cancel his registration in the city
on time. Thus, his election was challenged on the ground that
being not registered, he is ineligible to run and be elected.
It was established however that the municipal president was a
resident of the municipality but is not registered as a voter there.
Issue: Whether he is eligible to run and be elected.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Held: Yes. It is true that one of the qualifications required by law of
a person who announces his candidacy is that he must be a duly
qualified elector. However, “qualified elector” meant a person who
had all of the qualifications provided by law to be a voter and not a
person registered in the electoral list.
Eligibility is not affected by failure to register. Registration is a mere
step to voting, not an element to it. Registration does not confer
suffrage but a mere condition precedent to its exercise.
Registration merely regulates, not qualifies suffrage.
Caveat. Today, you cannot run for public office without registration.
This case is only cited in your answers in the ruling that
registration as mere regulation, not qualification to suffrage.
SYSTEM OF CONTINUING REGISTRATION
SYSTEM OF CONTINUING REGISTRATION
Period of Registration
The personal filing of application of registration of voters shall be
conducted daily in the office of the Election Officer during regular
office hours. No registration shall, however, be conducted during
the period starting one hundred twenty (120) days before a regular
election and ninety (90) days before a special election.
GR: Daily in the Office of the Election Officer during office hours,
even on Saturdays and holidays
XPNs:
1. 120 days before a regular election
2. 90 days before a special election
• Necessary so COMELEC can attend to other duties
necessary for preparation of elections
Akbayan Youth v. Comelec (2001)
One-liner: The right of suffrage is not at all absolute. It is subject to
existing substantive and procedural requirements embodied in the
Constitution and statute books. The act of registration is an
indispensable precondition to the right of suffrage, for it is part and
parcel of the right to vote and an indispensable element in the
election process.
Facts:
The Comelec conducted voter’s registration until December 27,
2000. Petitioners, who claim to represent the youth sector, asked
it conduct registration February 17 and 18, 2001. They said that
around 4 million youth voters aged 18 to 21 failed to register on or
before the deadline, hence, the need for extension. It was also
anchored on the renewed political awareness and interest among
the youth to participate in the political process generated by the
recent political events in the country. The Comelec refused on the
ground that it will affect its preparations for the elections. Contrary
to popular belief, voter’s registration is not limited to the act of
going to the election officer and writing down the names.
Applications for registration are subject to hearing, notice and
action of the Election Registration Board.
The following pre-election acts need to be done:
• Complete the project of precincts
• Constitution of the Board of Election Inspectors
• Inspection, verification and sealing of book of voters
• Finalization of computerized voter’s list
• Preparation, bidding, printing and distribution of the voter’s
information sheets, among many others
Facts:
The Comelec resolved to register voters from December 2, 2008 to
December 15, 2009 as the period of continuing voter registration
using the biometric process for the purpose of the May 10, 2010
national and local elections. It is however resolved to adjust the
deadline from December 15, 2009 to October 31, 2009 to afford it
more time to prepare for the automated elections.
It was argued that based on the NSO date, the projected voting
population from age group 18024 is 12.5 million which could be
disenfranchised for failure to register. It encroaches on the
legislative power by amending Section 8 of RA 8189 to expand the
prohibitive period of registration. But Comelec argued that it is
empowered to fix other periods and dates for pre-election
activities.
Issue:
Whether Comelec can cut short the registration and accordingly
adjust the deadline.
Held:
No. The clear text of the law decrees that voters be allowed to
register daily during regular office hours, except during the period
starting 120 days before a regular election and 90 days before a
special election. The period outside the 120 day prohibition is
sufficient for Comelec to prepare for the elections. While Comelec
has the rule-making, it must be exercised in accordance with
prevailing law. The power to fix other periods can be used only if
the activities cannot be reasonably held within the period provided
by law.
A case in 2016. The SC did not rule squarely in the issue of
extension of the voters registration.
Q. What is the difference between the Akbayan and Kabataan
rulings?
In Akbayan, the petition was filed during the prohibited period and
the extension prayed for falls on the prohibitive period. In
Kabataan, the petition and the period prayed for were both outside
of the 120 day prohibitive period.
The only difference between the first and second case:
First case — falls within the 120 day period
Second case — still outside the 120 day period
QUALIFICIATIONS AND DISQUALIFICATIONS
REGISTRATION, QUALIFICATION, DISQUALIFICATION
Q. Who may register as a voter?
1. Filipino citizen not disqualified by law
• Requisite of natural-born is only for those seeking
election
2. At least 18 years old on or before election
3. Resident of the Philippines for at least 1 year immediately
preceding the elections
4. Resident of the place where he proposes to vote at least 6
months immediately preceding the election
• 6 months prior to election, not registration
You can register even if you are not yet a resident there as long as
you are a resident 6 months PRIOR to the election.
It was argued that the Comelec is endowed with standby or
residual powers to designate other dates for certain pre-election
acts.
Q. Who are otherwise disqualified by law to register?
1. Sentenced by final judgment to suffer imprisonment of not
less than 1 year.
Unless:
A. Removed by plenary pardon or amnesty
B. 5 years have lapsed after service of sentence
Held:
Suffrage is not absolute, it is subject to substantive and procedural
requirements. It is regulated by measures like voters registration
which is not a mere statutory requirement. The State, in the
exercise of its inherent police power, may then enact laws to
safeguard and regulate the act of voter’s registration for the
ultimate purpose of conducting honest, orderly and peaceful
election. The law aids the vigilant and not those who slumber on
their rights.
2. Sentenced by final judgment for any crime involving
disloyalty to the government, such as rebellion, sedition,
violation of firearms law or any crime against national
security.
Unless:
A. Restored to full civil & political rights in accordance
with law
B. 5 years have lapsed after service of sentence
While voter’s registration is a pre-election act, we cannot ask the
Comelec to do the impossible. The designation of other dates
should be premised on the capability of reasonable performance.
3. Insane or incompetent persons declared as such by
competent authority
Unless: Subsequently declared by competent authority
that such person is no longer insane or incompetent
Kabataan Party List v. Comelec (2009)
One-liner: Comelec’s rule-making power should be exercised in
accordance with the prevailing law. The right of suffrage lies at the
heart of our constitutional democracy. The right of every Filipino to
choose the leaders who will lead the country and participate, to
the fullest extent possible, in every national and local election is so
zealously guarded by the fundamental law.
! | UNIVERSITY OF SAN CARLOS
43
Q. What should the application for registration contain?
Guji: Don’t memorize this
1. Name, surname and middle name
2. Date and place of birth
3. Citizenship
4. Civil status, if married, name of spouse
5. Periods of residence in the Philippines and in the place
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
6. Exact address
7. Statement that applicant possesses all qualifications of a
voter
8. Statement that applicant is not a registered voter of
another precinct
9. Such information or date as may be required by the
Commission
RESIDENCE
Note: Filipino citizenship is a continuing requisite
Q. What is the remedy for deactivation?
Reactivation.
Q: Is mandatory biometrics constitutional?
Kabataan Party-List v COMELEC
Romualdez v. RTC
One-liner: Biometrics is a mere regulation, not an added
qualification to the right of suffrage
Facts:
A natural-born Filipino constructed his house in a place where he
became its Punong barangay. When the regime of President
Marcos was about to end, he and his family fled the country and
sought asylum in the United States which was granted.
Premise: It is an additional substantive requirement expressly
prohibited by the Constitution
Five years later however, he received a letter from the US
Immigration and Naturalization Service that he should depart on or
before a certain date, otherwise he will be deported.
Thus, he was forced to leave even without any government
document. When he arrived in the country, he returned to his
barangay and registered as a voter. But it was sought to be
excluded in the MTC on the following grounds:
1. He is a resident of , practices his profession and works
in the USA
2. He just arrived in the country
3. As such, he did not have the 1 year residency in the
country and 6-month residency in the place where her
registered.
He argued that he has been a resident of the barangay and he
never abandoned it. The MTC denied the exclusion. On appeal to
the RTC however, it reversed the denial and ordered the
exclusion. Hence, this petition where he alleged that:
1. MTC and RTC have no jurisdiction because it was filed
by one who did not allege he was a registered voter of
the place.
2. The RTC erred in deciding that he voluntarily left the
country and abandoned his residence.
Held: While it is true that jurisdiction may be assailed any time, it is
deemed waived by the active participation where he even prayed
that the decision of the MTC be affirmed. Residence and domicile
are synonymous in election cases. Domicile imports not only
intention to reside in a fixed place but also personal presence in
that place, coupled with conduct indicative of such intention.
Held: Unless it is shown that a registration requirement rises to a
level of a literacy, property or other substantive requirement as
contemplated by the framers of the Constitution, one which
propagates a socio- economic standard bereft of any rational
basis to a person’s ability to intelligently cast his or her vote and to
further the public good, it cannot be struck down as
unconstitutional.
The objective of cleansing the national voter registry so as to
eliminate electoral fraud and ensure that election results are
reflective of the will of the electorate constitute a compelling state
interest of establishing a clean, complete, permanent, and
updated list of voters, and was demonstrably the least restrictive
means to promote that interest.
Atty. Guji: But actually, the effects are the same as if biometrics is
an added qualification. However, the SC justified that it is merely a
regulation.
CANCELATION OF REGISTRATION
Q. Is cancellation and deactivation the same?
No. If deactivation, you still have the remedy of reactivation. But in
cancellation, no more remedy.
Q. What is the ground for cancellation of registration?
Death.
Q. How to establish death?
A. Certification by the LCR
B. Submission by the LCR a certified list of those who died
during the previous month to the election officer of the
place where the deceased is registered
To acquire a new domicile of choice, the following requisites must
concur:
1. Residence or bodily presence in the new locality
2. Intention to remain there or animus manendi
3. Intention to abandon the old domicile or animus non
revertendi
Otherwise, COMELEC cannot cancel registration even if there is
personal knowledge of the death of the registrant.
The purpose to remain must be for an indefinite period of time. The
change of residence must be voluntary.
Q. What are the modes of transfer?
1. Change of residence to another city or municipality
• The registered voter may apply with the election officer of
his new residence.
2. Change of address within the same city or municipality
• Immediately notify the election officer in writing
• If change of address involves change of precinct, the
Board shall transfer the registration and notify the voter
of the new precinct.
The political situation brought by people power must have caused
great apprehension and serious concern over the safety of the
family that forced them to self-exile. Thus, their sudden departure
from the country cannot be deemed voluntary or abandonment of
residence.
Residence and domicile are synonymous in election/registration.
Physical presence — continuing intention to return
Pungutan v. Abubakar
It must be emphasized that the right to vote is a most precious
political right, as well as a bounden duty of every citizen, enabling
and requiring him to participate in the process of government so as
to ensure that the government can truly be said to derive its power
solely from the consent of the governed.
DEACTIVATION & CANCELLATION OF REGISTRATION
DEACTIVATION OF REGISTRATION
Q. What are the grounds for deactivation of registration?
1. Final judgment to suffer imprisonment for not less than 1
year
2. Final judgment for any crime involving disloyalty to the
government
3. Insane or incompetent persons declared as such by
competent authority
4. Failure to vote for 2 successive regular elections
5. Court order in exclusion proceedings
6. Loss of Filipino citizenship
7. Failure to validate
! | UNIVERSITY OF SAN CARLOS
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TRANSFER OF REGISTRATION
Gi skip-an ra ni ni Guji na discussion
INCLUSION AND EXCLUSION PROCEEDINGS
EXCLUSION THROUGH INADVERTENCE OR REGISTERED
WITH AN ERRONEOUS OR MISSPELLED NAME
Q. What is the remedy in case of exclusion thru inadvertence
or registered with an erroneous or misspelled name?
Apply for exclusion or reinstatement and correction of entry. If
denied or not acted by the Election Registration Board, petition the
Municipal Trial Court for entry or correction, as the case may be.
ELECTION REGISTRATION BOARD
Q. Who compose the Election Registration Board?
1. Chair: Election Officer
2. Members:
A. Public school official most senior in rank
B. Local Civil Registrar
ERB - those approve or disapprove your registration
Disqualification
Relationship within the fourth civil degree to each other and to any
incumbent elective official of the city or municipality
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Powers:
A. Acts on all applications for registration, transfer, reactivation,
correction of entry
B. Deactivates registration
C. Cancels registration
D. Decides challenges on the right to register quarterly
TN: The grounds on challenges on the right to register are not
specified.
Q. Who can challenge?
Any voter, candidate or representative of a registered political party.
INCLUSION AND EXCLUSION PROCEEDINGS
Common rules for inclusion and exclusion proceedings and
correction of names — Guji: Never mind this. Too specific
already
1. Petition refers to one precinct, impleads the ERB
2. Any voter, candidate or party may intervene
3. Decision is based on evidence and not on stipulation of
facts
4. Heard and decided within 10 days from filing
5. Appeal is decided within 10 days from receipt
6. Not later than 15 days before election day
7. Decision is final and executory
8. If the question is whether the voter is real, non-appearance
on the day set for hearing is prima facie evidence that the
voter is fictitious. – but gi emphasize ni niya
Inclusion
Exclusion
Grounds
(1)Disapproval of application
for registration by the
ERB
(2)Removal of name from list
of voters
Who can file
(1) Any registered voter
Any person whose
application was disapproved (2) Representative of a
political party
or name was removed.
(3) Election officer
Where to file
MTC
Not specified
MTC
Anytime, except:
Anytime, except:
(1) 100 days prior to
When to include (1) 105 days prior to the
regular election
or exclude
regular election
(2) 75 prior to special election (2) 65 days before
special election
Time decided
15 days from filing
10 days from filing
What to attach
to the petition
Certificate of
disapprovaland proof of
service
Proof of notice to the
ERB and voter
Proof of service ERB
of petition
ERB and challenged
voter
Challenge to right to register distinguished from inclusion
and exclusion proceedings
Challenge to right to register
Inclusion and exclusion
Administrative
Judicial
Involves the right to register
Involves the right to vote
Pungutan v. Abubakar
Facts:
The Comelec excluded election returns on the ground that they are
spurious and/or manufactured or no returns at all as these were
prepared through massive violence, terrorism and fraud.
Voting was done by persons other than the registered voters while
armed men went from one polling place to another, prepared the
ballots and dictated how the election returns should be returned.
It was argued that since the Comelec has no jurisdiction to decide
the right to vote, it cannot exclude election returns because it
disenfranchises votes which is purely judicial.
Held:
It is true that inclusion or exclusion from the list of voters is a purely
judicial power to the exclusion of the Comelec. But to determine
whether an election was held is purely within the administrative
jurisdiction of the Comelec. The disenfranchisement is only
provisional, subject to the final determination of the validity of
votes in an election protest.
Any question involving suffrage is removed from the jurisdiction of
the Comelec. However, exclusion of election returns from
canvassing pertains to the administrative jurisdiction of the
Comelec.
! | UNIVERSITY OF SAN CARLOS
45
Domino v. Comelec
Facts: The MTC excluded a voter in one place and transferred his
registration to another.
Held: Exclusion merely removes a name from the voter’ list, it does
not include transfer. It is summary in nature hence the rule of res
judicata does not apply. The subject matter of exclusion is removal
from list whereas quo warranto involves expulsion from office. It
does not preclude the Comelec from inquiring into the residence
and citizenship qualification of a candidate.
NATURE OF VOTER’S REGISTRATION RECORDS
Confidentiality of voter’s registration records
Section 41 Continuing Registration Act
• Open to public examination during regular office hours
• Legitimate inquiries on election-related matters
• Law enforcement agencies
• Upon prior authority and subject to regulations by the
Commission
• Access registration records necessary or in aid of their
investigative functions
Database security
Section 9 RA 1037
• Not used under any circumstance except for electoral
exercises
Minute Res. No. 13-1132, October 17, 2013
Acted on the request of the BSP
For use in application for tax identification numbers in connection
with consolidation of titles to properties acquired by BSP
Acted on the request Office of the President
Notice to former employees with unliquidated cash advances
Both requests were politely declined by the COMELEC.
Request for voter’s registration record may be granted only if done
by:
1. The voter or his/her authorized representative
2. Court order
• Exclusively for use only in electoral cases pending before
it. Therefore if ordered pursuant to civil cases only,
records cannot be inspected
ANNULMENT OF LIST OF VOTERS
Q. What are the grounds for annulment of list of voters?
1. Not prepared in accordance with the provisions of the
Continuing Registration Act
2. Prepared through fraud, bribery, forgery, impersonation,
intimidation, force or any similar irregularity
3. Contains statistically improbable date
Q. Who annuls?
The Commission upon verified petition by:
1. Any voter
2. Election officer
3. Duly registered political party
Q. What is the limitation on annulment of list of voters?
No ruling, order or decision annulling the book of voters shall be
executed within 90 days before an election.
Ututalum v. Comelec
Facts:
In a special election for district representative, there were 39,801
registered voters in one municipality. One candidate obtained 482
votes while the other got 35,581 votes. During canvassing, he
objected to the returns of that municipality on the ground that they
appeared to be tampered with or falsified owing to the great
excess of votes.
In that municipality, there were only 42 polling places, which if
multiplied by 300 results in 12,600 voters only, way below the
36,663 who cast their votes, or a difference of 23,947 ghost
voters.
In his petition however, he admitted that there was an error
because the municipality had 148 polling places. But he said that
if the returns from the municipality are excluded, he will win by
5,301 votes. But the objections were denied for being filed out of
time.
The other candidate was proclaimed. He then petitioned to annul
the proclamation and prayed for his proclamation. While these
were pending however, a candidate for governor petitioned to
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
annul the list of voters of the municipality. It was opposed by the
proclaimed congressional candidate.
The Comelec annulled the list of voters on the ground of massive
irregularities committed in its preparation and for being statistically
improbable.
Another list was prepared yielding only 12,555 names. He then
filed a supplemental pleading to entreat the annulment in his
pending petitions to annul proclamation of the other candidate and
for his proclamation. But the Comelec dismissed it on the ground
that while there may be padding of the list of voters, it cannot
annul the elections otherwise it disenfranchises the good or valid
votes. Padding of voter’s list, like fraud and terrorism, is not a
proper issue to be raised in a pre-proclamation controversy, but in
an election protest.
He now contends that the issue he raised refers to obviously
manufactured returns, hence a proper pre-proclamation issue.
Comelec held that the election returns in the municipality should
be excluded in the canvass because the list of voters has been
finally annulled. There is no need to re-litigate in an election
protest the matter of annulment because it is already a “fait
accompli”.
Held:
There is no great excess of votes since only 36,000 voted out of
39,000 registered voters. The Lagumbay case heavily relied on by
petitioner deals with the preparation of manufactured returns while
this case deals with the preparation of the list of voters, a matter
which is not reflected in the face of the election returns.
Padding of list of voters is not a proper ground in a preproclamation controversy. The new list of voters cannot be applied
to determine the number of votes in a previous election. The
Comelec is not empowered to annul a previous election on the
basis of a subsequent annulment of voter’s list. It has no
retroactive effect.
Bashier v. Comelec
The subsequent annulment of a voter’s list in a separate
proceedings where the protagonists are not parties, cannot
retroactively and without due process annul the previous election.
Ututalum v. Comelec
The voter’s list in the previous elections is valid and unquestioned
prior to and on the day of election. It was the only legitimate roster
used as basis for voting. In the absence of prior petition to set it
aside, it is considered conclusive evidence of persons who could
vote in that particular election.
Since the winning candidate was already proclaimed, the preproclamation case dies, the next remedy is an election protest
before a proper forum, which is the House of Representatives
Electoral Tribunal.
Sarangani v. Comelec
The findings of the Comelec being an administrative agency,
cannot be reversed on appeal on certiorari especially when no
significant facts and circumstances are shown to have been
overlooked or disregarded which when considered would have
substantially affected the outcome of the case.
No voter is disenfranchised because no such voter exists. Suffrage
is not tampered with when a list of fictitious voters is excluded
from election. Suffrage is conferred by the Constitution only on
citizens who are qualified to vote and who are not otherwise
disqualified by law.
The exclusion of non-existent voters all the more protects the
validity and credibility of the electoral process as well as suffrage
because the sovereign will is not rendered nugatory by the
inclusion of some good voters.
PART III. THE COMMISSION ON ELECTIONS
COMPOSITION, QUALIFICATIONS, TERM OF OFFICE
COMPOSITION, QUALIFICATIONS AND TERM OF OFFICE
Q. Who compose the COMELEC?
7 Commissioners all in all.
1. 1 Chair
2. 6 Commissioners
TN: The Commission on Human Rights is not a constitutional body.
It is a national Commission. There are only 3 Constitutional bodies
– Comelec, COA and CSC.
Q. What are their qualifications?
They should possess these qualifications at the time of
appointment.
1. Natural-born citizens
2. At least 35 years old
3. Holders of college degree
4. Not a candidate for any elective position in the
immediately preceding elections
5. Majority (including the Chair) must be lawyers engaged
in the practice of law for at least 10 years
TN: Chair must be a lawyer. This is because the
Commission performs quasi-judicial functions, thus
we require somebody who knows the law.
Q. What is the practice of law?
Cayetano v. Monsod
It means any activity, in and out of court, which requires the
application of law, legal procedure, knowledge, training and
experience. Thus, a lawyer-economist, lawyer-manager, lawyerentrepreneur, lawyer- negotiator of contracts, lawyer-legislator for
the rich and poor satisfy the requirement.
Facts:
Way back in the 1950s and during the martial law era, the dead,
the birds and he bees voted in Lanao. Several precincts and their
books of votes were sought to be annulled on the ground that they
contained ghost voters. It was opposed by the incumbent mayor
and the 23 Punong barangays on the ground that the move is
merely intended to diminish bailiwicks.
Q. Who appoints them and for how long?
The President, with the consent of the Commission on
Appointments, for a term of 7 years without reappointment.
The Comelec investigated and found that:
1. The supposed barangay Padian Tarogan does not exist
2. The area has only two structures, one a concrete house
without a roof and the other a wooden structure without
walls and roof.
3. The name Padian Tarogan means a cemetery and not a
residential place
4. When the people around the area were asked who among
them is registered in Padian, none of them answered in
the affirmative
5. Based on this report, the Comelec ruled that Padian is a
ghost precinct and should be excluded in the special
election.
Q. Can any member be appointed or designated in an acting
capacity?
Held:
It is erroneous for Comelec to rule that Padian is a ghost precinct
because it is a barangay which should have at least one precinct.
But since it is a factual matter to be determined by Comelec in the
exercise of its administrative power, the Court refuses to review.
It is not impossible for a barangay not to have actual inhabitants
because people migrate. A barangay may officially exist on record
and the fact that nobody resides there does not result in its
automatic cessation as a unit of local government.
Under the LGC, abolition of a LGU may be done by Congress if it
involves a province, city or municipality. If it involves a barangay, it
may be done by the Panglungsod concerned subject to plebiscite,
except in Metro Manila and cultural communities.
! | UNIVERSITY OF SAN CARLOS
46
They are impeachable, thus they are only removed by
impeachment. In other words, the Ombudsman do not have
jurisdiction.
Brillantes v. Yorac
No. It has to be a permanent appointment otherwise, it violates
security of tenure which is one of the constitutional safeguards of
Comelec independence.
TN: What the SC was trying to void if the appointment is merely
temporarily, the appointee will be at the mercy of the President
because the President can always take it back.
Q. How is its independence safeguarded?
No less than the Constitution describes COMELEC as independent
DISABILITIES, INHIBITIONS AND DISQUALIFICATIONS
During tenure, its members are not allowed to:
A. Hold any other office or employment
B. Engage in the practice of any profession
C. Actively manage or control any business which in any way
be affected by the functions of his office
D. Be financially interested, directly or indirectly in any contract
with, or in any franchise or privilege granted by the
government or any of its subdivisions, agencies or
instrumentalities including GOCCs and its subsidiaries.
E. Salary is fixed by law and cannot be decreased
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
F. They appoint their officials and employees, subject to the
concurrence and approval of the CSC
G. Enjoy fiscal autonomy. There is automatic appropriation.
H. It promulgates its own rules concerning pleadings and
practice before it (quasi-legislative powers of the
Commission)
function issues a resolution laying down the
guidelines for the conduct of plebiscite.
Ministerial Function of Comelec
- application form
- comelec cannot inquire as to the truth
- however, it must be in the form required
TN: Its decisions, finals orders or rulings on election contests
involving elective municipal and barangay offices shall be final,
executory, and not appealable.
2. Acceptance of COCs, provided it complies with the
prescribed form
POWERS AND FUNCTIONS
POWERS OF THE COMELEC
Q. What are the constitutional powers and functions of the
Commission?
A. It enforces and administers all laws and regulations relative
to the conduct of election, plebiscite, initiative, referendum
and recall.
B. It exercises exclusive original jurisdiction over all contests
relating to the election, returns, and qualifications of all
elective, regional, provincial and city officials.
C. It exercises appellate jurisdiction over all contests involving
elective municipal officials decided by the RTC or involving
elective barangay officials decided by the MTC.
D. Decides, except those involving the right to vote, all
questions affecting elections, including the number and
location of polling places, appointment of election officials
and inspectors, and registration of voters.
• TN: In cases involving the right to vote – pertains to the
MTC or RTC in inclusion or exclusion proceedings
(judicial in nature). If the case is to challenge the right to
register – the Election Registration Board
(Administrative)
E. Its decisions, final orders or rulings on election contests
involving elective municipal and barangay officials shall be
final, executory and not appealable.
• TN: Only when questions of facts are concerned. For
questions of law, still subject to judicial review
F. It decides, except those involving the right to vote, all
questions affecting elections, including the number and
location of polling places, appointment of election officials
and inspectors, and registration of voters.
G. It deputizes, with the concurrence of the President, law
enforcement agencies and instrumentalities of the
Government, including the Armed Forces of the
Philippines, for the exclusive purpose of ensuring free,
orderly, honest, peaceful and credible elections.
H. It registers political parties, organizations or coalitions.
I. It accredits citizen’s arms.
J. It files, upon verified complaint, or on its own initiative,
petitions in court for inclusion or exclusion of voters.
K. It investigates and prosecutes election offenses.
L. It recommends 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 candidates.
M. It recommends to the President the removal of any officer or
employee it has deputized, or the imposition of any other
disciplinary action, for violation or disregard of, or
disobedience to its directive, order, or decision.
N. It reports to the President and the Congress a
comprehensive report on the conduct of each election,
plebiscite, initiative, referendum, or recall.
• TN: The Commission does not follow the hierarchy of
Courts.
Q. How are the constitutional powers and functions of the
Comelec classified?
A. Administrative or executive
B. Adjudicatory or quasi-judicial
C. Quasi-legislative
D. Ministerial –
Examples:
1. When there is already a law set in forth a
plebiscite, the Comelec as part of its ministerial
! | UNIVERSITY OF SAN CARLOS
47
QUASI LEGISLATIVE POWER
- COMELEC - SC on petition for review on certoirari
- Power to supplement the law but NOT to expand or limit
- Doctrine of Subordinate Legislation
- Promulgate rules - independence of comelec
Q. What are the administrative and quasi-judicial powers and
functions?
Article IX (C), Section 2 pars 1,3-9 are administrative while par 2 is
quasi-judicial.
Importance of knowing the difference:
To know where to go – en banc or division. Quasi-judicial functions
must pass before the division first before the en banc assumes
jurisdiction. Violation results in dismissal of the case.
Filipinos Engineering v. Ferrer
A resolution awarding the contract in favor or one bidder is not
issued pursuant to its quasi-judicial functions but merely as an
incident of its inherent administrative functions over the conduct of
elections. As such, it does not fall under the final order
contemplated by law as reviewable by the Supreme Court on
certiorari. Since it is non-judicial in character, the Commission
cannot issue its contumacy (to cite in contempt) power. Thus, any
question arising from it may be well taken in an ordinary civil
action before the trial courts.
TN: The Commission cannot exercise its power to cite you in
contempt if it merely exercises it administrative functions. It can
only be done when the Commission exercises quasi-judicial
functions.
ADMINISTRATIVE POWERS
Q. What are the administrative powers of COMELEC?
1. Power to enforce and administer election laws
2. Power to conduct plebiscite, initiative, referendum and
recall
3. Power to decide all questions affecting elections
4. Power to deputize other government agencies
5. Recommendatory power
6. Power to register political parties and party-list
7. Power to supervise or regulate franchises and
transportation
8. Power to investigate and prosecute
ADMINISTER AND ENFORCE ALL ELECTION LAWS
EXTENT OF POWER TO ENFORCE AND ADMINISTER
Q. What is the extent of the administrative power to enforce
and administer all election laws?
Loong v. Comelec
It is so broad it includes all the necessary and incidental powers to
hold a free, orderly, honest, peaceful and credible elections. Thus,
even if manual count is not expressly authorized under the
automation law, it may still be done if the counting machines could
not accurately count the votes due to misalignment of ovals and
incorrect sequence code.
TN: When the Commission exercises administrative functions, it
almost always deals with questions of fact – cannot be disturbed
by the Courts because it is in the best position to decide questions
of facts.
Taule v. Santos
But it covers only popular elections, not election of federation
officers. Comelec’s participation in these kinds of elections is
limited only to being supervisory.
Q. Does it include the power to place areas under Comelec
control and on what ground?
Yes, on the ground of serious armed threats.
Q. What are serious armed threats?
A. Presence of paramilitary forces, private armies, or
identifiable armed bands
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
B. Widely perceived to have committed terrorism, fraud or
other election irregularities
C. Threaten or tend to disrupt the holding of a free, peaceful,
honest, orderly and credible elections.
Q. What areas may be covered by control?
Any political division, subdivision, unit or area. It presupposes a
smaller cluster or area.
Q. What are the implications of Comelec control?
A. Immediate and direct control and supervision over all
national and local officials and employees required by law
to perform duties and/or comply with prohibitions relative to
the conduct of elections in the area.
B. Exercise full control and supervision over all national and
local law enforcement agencies as well as military officers
and men assigned or deployed in the area.
TN: The placement of a locality under Comelec control is a last
resort. You don’t just do that whimsically because it is an added
burden on the part of the Comelec.
SPECIAL TASK FORCE
Q. Who enforces Comelec control?
Special Task Force, composed by:
A. Head – Commissioner
B. Members – Regional Election Director concerned, highest
ranking PNP official in the area, highest ranking AFP
official in the area
C. Additional members – lawyers of the Commission at the
discretion of the Head or if exigency requires
Q. What are the powers of the Special Task Force?
A. Supervise and control administration and transactions of the
local government unit to enforce strict compliance with
election bans and prohibitions like:
• Disbursement of public funds
• Construction of public works
• Movement of government personnel
B. Oversee distribution, assignment and deployment of PNP
and AFP officers and personnel and control their activities
relative to the strict enforcement of:
• Gun ban
• Security personnel of candidates and citizens
C. Augment police force
D. Substitute whole unit of police force
E. Relieve any police or military officer
F. Revoke exemptions from gun ban and all permits to carry
firearms
G. Act as law enforcement body of the Commission
H. Adopt appropriate measures to safeguard elections
I. Submit periodic reports
Q. For how long does Comelec control lasts?
Until the end of the election period, unless sooner lifted by the
Commission.
Q. Does the power to administer cover elections only?
No, it also includes the conduct plebiscite, initiative, referendum
and recall.
CONDUCT PLEBISCITE, INITIATIVE, REFERENDUM,
RECALL
PLEBISCITE
Q. What is plebiscite?
It is the electoral process by which an initiative on the Constitution
is approved or rejected by the people.
INITIATIVE
Q. What is the people’s initiative?
It refers to the power of the people to directly propose amendments
to the Constitution upon a petition of at least 12% of the total
number of registered voters, of which every legislative district
must be represented by at least 3% of its registered voters.
Conditions:
A. It is subject to ratification
B. It is subject to an enabling law passed by Congress
C. It cannot be exercised within 5 years from ratification
D. Nor oftener than once every 5 years thereafter
E. It is limited to amendments only
• There are no record of proceedings which is
necessary in Constitution revisions
F. Must be directly proposed by at least 12% of the total
number of registered voters nationwide
! | UNIVERSITY OF SAN CARLOS
48
G. Every legislative district must be represented by at least 3%
of its registered voters.
Q. What is the form of petition?
A. It is written
B. In a form to be determined by Comelec
C. It must contain the entire proposal on its face or attached to
it. If so, it must state the fact of its attachment
D. The people must author and sign the entire proposal
E. No agent or representative can sign on their behalf
F. Prior to signing, the person must have examined the entire
proposal
G. Its nature and effect are explained
Lambino v. Comelec
GMA became President as successor to Erap for 3 years. She also
won against FPJ and served for 6 more years. Fearing that she
may be prosecuted for the many cases filed against her after her
term ends, she moved for a charter change to remove the one
term limit rule.
The proposal includes:
“DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI
AND VII OF THE 1981 CONSTITUTION CHANGING THE FORM
OF GOVERNMENT FROM THE PRESENT BICAMERALPRESIDENTIAL TO A UNICAMERAL- PARLIAMENTARY
SYSTEM OF GOVEREMENT, IN ORDER TO ACHIEVE
GREATER EFFICIENCY, SIMPLICITY AND ECONOMY IN
GOVERNMENT; AND PROVIDING AN ARTICLE XVII AS
TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM
ONE SYSTEM TO ANOTHER?”
I hereby APPROVE the proposed amendment to the 1987
Constitution. My signature herein which shall form part of the
petition for initiative to amend the Constitution signifies my support
for the filing thereof.
Held: There was “Grand Deception” because the implications were
not properly explained to the people
Q. What are the implications of the proposed amendment?
1. The term limits on members of the legislature will be lifted
and thus members of Parliament can be re-elected
indefinitely.
2. The interim Parliament can continue to function indefinitely
until its members, who are almost all the present
members of Congress, decide to call for new
parliamentary elections. Thus, the members of the interim
Parliament will determine the expiration of their own term
of office.
3. Within 45 days from the ratification of the proposed
changes, the interim Parliament shall convene to propose
further amendments or revisions to the Constitution.
Under the rules, it must contain the entire proposal on its face or
attached to it. If so, it must state the fact of its attachment. In this
case, they merely provided a summary of the proposal.
The proposed transitory provision is unrelated to the shift from
bicameral-presidential to unicameral-parliamentary form of
government.
This is logrolling. It happens when a petition incorporates an
unrelated subject matter in the same petition. Violates the right of
the people to be informed.
Q. Is there an enabling law for the people’s initiative?
Yes, the Initiative and Referendum Act enacted on August 4, 1989.
It defines initiative as the power of the people to propose
amendments to the Constitution or to propose and enact
legislations.
It likewise enumerates three system of initiative:
A. Initiative on the Constitution – petition proposing
amendments to the Constitution
B. Initiative on statutes – petition proposing to enact a national
legislation
C. Initiative on local legislation – petition to enact a regional,
provincial, city, municipal or barangay law, ordinance or
resolution
Q. Is the enabling law sufficient to govern the people’s
initiative?
Santiago v. Comelec
No. It is incomplete, inadequate or wanting in essential terms and
conditions to cover the system of initiative to amend the
Constitution.
Lambino v. Comelec
But since the petition is in itself void for failure to comply with the
basic constitutional requirements on the conduct and scope of the
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
people’s initiative to amend the constitution, there is no need to
revisit the Santiago ruling.
On motion for reconsideration however, the Supreme Court
reversed its previous ruling and said RA 6735 is after all, a
sufficient enabling law to implement the people’s initiative.
Q. What is revision?
It broadly implies a change that alters a basic principle in the
Constitution like the principle of separation of powers, as when the
Office of the President as the locus of executive power is
abolished alone, or the system of checks and balances, as when
one chamber of Congress is abolished alone.
Q. What is amendment?
It broadly refers to a change that adds, reduces, or deletes without
altering the basic principle involved
Where the proposed change applies only to a specific provision of
the Constitution without affecting any other section or article, it
may generally be considered an amendment and not a revision,
as when it merely reduces the voting age from 18 to 15, Filipino
ownership of mass media companies from 100% to 60%.
Q. What is the difference between amendment and revision?
Revision
Amendment
Generally affects
several
provisions of the Constitution
Generally affects only the specific
provision being amended.
Envisagesan alteration of one or a
few specific and separable
provisions.
The guiding original intention and
plan contemplates a reexamination of the entire
document, or of provisions of the
document which have over-all
implications for the entire
document, to determine how and
to what extent they should be
altered.
The guiding original intention of is to
improve specific parts or to add
new provisions deemed necessary
to meet new conditions or to
suppress specific portions that
may have become obsolete or that
are judged to be dangerous
Examples of revision:
1. A switch from the presidential system to a parliamentary
system would be a revision because of its over-all impact
on the entire constitutional structure.
2. A switch from a bicameral system to a unicameral system
because of its effect on other important provisions of the
Constitution.
Q. What are the tests to determine whether it is a revision or
amendment?
Quantitative test and Qualitative test.
RECALL
Q. What is recall?
A. It is a mode of removal of a local elective public officer by
the people before the end of term of office.
• Not a remedy for national officials
B. It is an incident of the people’s sovereign power.
C. It is indispensable for the proper administration of public
affairs.
Q. Who exercises the power of recall?
Registered voters of a local government unit to which the local
elective official subject of the recall belongs.
Q. On what grounds?
Sole ground of loss of confidence.
Q. How is it exercised?
Initiated upon petition of at least 25% of the total number of
registered voters in the local government unit concerned during
the election in which the local official sought to be recalled was
elected.
A. Written petition for recall duly signed before the election
officer or his or her representative.
B. Publication by Comelec of the petition for the purpose of
verifying the authenticity and genuineness of the petition
and the required percentage of voters.
C. Announcement of acceptance of candidates to the position.
Q. When is recall effective?
Election and proclamation of the winner.
Q. What are its implications to the official sought to be
recalled?
A. If he or she wins the recall, confidence is affirmed.
B. If he or she loses the recall, confidence is truly lost.
Q. What are the prohibitions against the elective local official
sought to be recalled?
A. He or she cannot resign
B. As a matter of fact, he or she is automatically considered a
candidate
Q. What are the limitations on recall?
A. Only once during the term of office for loss of confidence
B. No recall within one year from assumption to office
C. No recall within one year prior to the next regular election
Q. Why is there a 25% minimum?
Quantitative test
Qualitative test
Whether the proposed change is
so extensive in its provisions as to
change directly the substantial
entirety of the constitution by the
deletion or alteration of
numerous existing provisions.
Whether the proposed change has
far reaching implications.
Examines the number of provisions
affected and not the degree of
change
Examines the degree of change,
whether it alters the structure of
government
Lambino v. Comelec
Under the quantitative and qualitative tests, the Lambino petition is
not merely an amendment but a revision.
A. Quantitatively – it changes two Articles. (Article 6 on
Legislative and Article 7 on the Executive = 105 provisions)
B. Qualitatively – it alters the structure of government (from
Presidential to Parliamentary; from bicameral to
unicameral)
TN: But, there is no fixed rule on whether a change is an
amendment or a revision. All you have to do is consider the far
reaching implications of proposed change.
REFERENDUM
Q. What is referendum?
It is the power of the electorate to approve or reject a legislation
through an election called for the purpose. The Congress refers
the legislation to the people for approval.
• Go back to the root word “refer”. Congress might want to play
safe and say here’s a law, let the people decide WON they
like or dislike this one. You refer the law to the people.
It has two classes:
A. Referendum on statutes
B. Referendum on local law
! | UNIVERSITY OF SAN CARLOS
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Angobung v. Comelec
To ensure that a recall election is not held in response to a small
and unrepresentative minority. Thus, a recall petition initiated and
signed by one person only and setting another date for others to
follow is not allowed. Otherwise, it invites the public to sign
something they did not think about in the first place. It circumvents
the explicit requirement of 25% of the total number of registered
voters.
Q. Is it necessary that 25% of the total number of registered
voters sign the petition at the time it is filed?
A. If it is a mere initiation, it must contain the names of 25% of
the total number of registered voters
B. If it is filing, 25% of the total number of registered voters
must personally appear and sign the petition before the
election officer or his or her representative.
Q. Is it practicable?
In reality, this is not followed by COMELEC anymore. Thus, the
Comelec resolved to dispense with the personal appearance and
signing. It required that at the time of filing, 25% must sign the
petition.
DECIDE ALL QUESTIONS AFFECTING ELECTIONS
POWER TO DECIDE ALL QUESTIONS AFFECTING
ELECTIONS
General rule: All questions affecting elections, including the
number and location of polling places, appointment of election
officials and inspectors, and registration of voters.
Except: Suffrage or the right to vote as this pertains to the courts
and the courts alone.
Domino v. Comelec
But it can still inquire whether a candidate is a resident despite a
court ruling in exclusion proceedings that he is. Because inclusion
or exclusion has no res judicata effect.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Pungutan v. Abubakar
On exclusion of election returns
Premise: The election returns embody the votes of the electorate. If
the COMELEC is allowed to exclude them, in effect, it actually
decides on the right to vote because the election returns represent
the votes cast by the people
Held:
The exclusion of election returns is administrative in nature, thus
the decision of the COMELEC is to be respected for as long as
there is substantial evidence to back it up, unless GAD is proven.
COMELEC can also exclude spurious election returns because by
doing so, it does not nullify the votes per se but the spurious
document that embodies them. Thus, exclusion of election returns
does not amount to denial of the right to vote.
Montejo v. Comelec
It has no power to reapportion legislative districts. A province was
created resulting in unequal distribution of inhabitants. The
Comelec transferred a municipality from one district to another on
the ground that Section of the Ordinance appended to the
Constitution authorizes it to make minor adjustments in
redistricting.
The Comelec is without jurisdiction to apportion legislative districts
and the phrase “minor adjustments” refers to the instance where a
municipality was omitted in the enumeration of those composing
the legislative district.
Sarmiento v. Comelec
If it involves pre-proclamation controversies, the Commission en
banc cannot acquire jurisdiction unless it is brought to it on motion
for reconsideration from the decision of a decision.
But upon the start of term of office, cases involving preproclamation controversies are deemed terminated. Without
prejudice to the filing of appropriate election protest cases.
Q. What does “all questions affecting” mean?
Diocese of Bacolod v COMELEC
The word “affecting” does not refer to “any and all” questions. It is
not construed to divest the Supreme Court of jurisdiction.
DEPUTIZE OTHER GOVERNMENT AGENCIES
POWER TO DEPUTIZE OTHER GOVERNMENT AGENCIES
Q. Who or which can be deputized?
Law enforcement agencies and instrumentalities of the
Government, including the Armed Forces of the Philippines.
Q. What is covered by the power to recommend and to whom?
Guji: These ones are not so important na
It may recommend to Congress measures:
1. Minimize election spending
2. Limitation of common poster areas
3. Prevention of and penalty for all forms of election fraud,
offenses, malpractices and nuisance candidates
It may recommend to the President:
1. Removal or suspension of its deputies
2. For violation, disregard or disobedience to its directive,
order or decision
Q. What must be done prior to recommendation?
It must first satisfy itself that indeed there has been an infraction of
the law or its allied directives by the person administratively
charged.
Thus, it may take cognizance of an administrative case involving
performance of duties of a city prosecutor as a deputized
canvasser.
Tan v. Comelec
It relates to the performance of his duties as canvasser and not as
prosecutor.
Diocese of Bacolod v COMELEC
In disallowing oversized tarpaulins in private property, the
Commission cannot invoke its power to recommend because it
pertains to candidates only.
REGISTER POLITICAL PARTIES AND PARTY-LIST
POWER TO REGISTER POLITICAL PARTIES AND PARTYLIST
Q. What is a political party?
It refers to an organized group of citizens advocating an ideology or
platform, principles and policies for the general conduct of
government and which, as the most immediate means of securing
their adoption, regularly nominates and supports certain of its
leaders and members as candidates for public office.
A. National party – constituency is spread over the
geographical territory of at least a majority of the regions.
B. Regional – constituency is spread over the geographical
territory of at least a majority of the cities and provinces
comprising the region.
Q. For what purpose?
Must be in line with an election purpose. Exclusive purpose of
ensuring free, orderly, honest, peaceful and credible elections.
Groups that cannot be registered as political party:
A. Religious denominations and sects
B. Those which seek to achieve their goals through violence or
unlawful means
C. Those which refuse to uphold and adhere to the
Constitution
D. Those which are supported by any foreign government
Q. Is the power to deputize automatic?
No. Must be with concurrence of the President.
Santos v. Comelec
Q. How does the President concur?
It was expressed in general terms and in advanced in EO No. 134
dated February 27, 1987.
But the power to determine the identity of a political party or
whether it is separate and distinct from another party is exclusive
unless gravely abused.
People v. Basilla
Q. Why is foreign support prohibited?
It constitutes interference in national affairs. Thus, financial
contributions from foreign governments and their agencies to
political parties, organizations, coalitions, or candidates related to
elections are prohibited.
Lack of manpower. The prompt and fair investigation and
prosecution of election offenses committed before or in the course
of nationwide elections would simply not be possible, unless,
perhaps, it had a bureaucracy many times larger than what it
actually has.
Q. What happens if it is accepted?
It constitutes additional ground for the cancellation of their
registration with the Commission, in addition to other penalties
that may be prescribed by law.
Q. What is the purpose of deputation to investigate and
prosecute?
Election is everybody’s responsibility, including you, the voters.
Q. What is the extent of deputation?
The deputies become alter egos of the Commission. They are
subject to its authority, control and supervision in respect of the
particular functions covered by such deputation.
The acts of such deputies within the lawful scope of their delegated
authority are, in legal contemplation, the acts of the Commission
itself.
Q. What is the limit on deputation?
It cannot suspend or remove the deputy from his or her original
position. It can only recommend.
! | UNIVERSITY OF SAN CARLOS
50
Groups that cannot be registered as party-list
1. A religious sect or denomination, organization or
association organized for religious purposes
2. Advocates violence or unlawful means to seek its goal
3. A foreign party or organization
4. Receiving support from any foreign government, foreign
political party, foundation, organization, whether directly or
through any of its officers or members or indirectly
through third parties for partisan election purposes
5. Violates or fails to comply with laws, rules, or regulations
relating to elections
6. Declares untruthful statements in its petition
7. Has ceased to exist for at least 1 year, or it fails to
participate in the last 2 preceding elections or fails to
obtain at least 2 per centum of the votes cast under the
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
party-list system in the 2 preceding elections for the
constituency in which it has registered.
SUPERVISE OR REGULATE FRANCHISES OR TRANSPO
POWER TO SUPERVISE OR REGULATE FRANCHISES
Q. What is the coverage of the supervisory and regulatory
powers?
It covers enjoyment or utilization of all franchises or permits for the
operation of transportation and other public utilities, media of
communication or information, all grants, special privileges, or
concessions granted by the Government or any of its subdivision,
agency or instrumentality, including any GOCC or its subsidiary.
Adiong case, cited in 1-UTAK
Such supervisory power does not extend to the very freedom of an
individual to express his or her preference of candidates in an
election by placing election campaign stickers on his or her
vehicle. Otherwise, it is a violation to the ownership rights and
one’s freedom of expression
1-UTAK
The Constitution merely grants the Commission power to supervise
the employment and utilization of all franchises and permits of
public utilities. It does not extend to the ownership per se of PUVs
and transport terminals but only to the franchise or permit to
operate them.
The posting of campaign materials on PUVs and terminals is not
only a form of political expression but an act of ownership.
Diocese of Bacolod v COMELEC
Oversized tarpaulin stating Team Patay and Team Buhay.
COMELEC ordered the removal because it exceeded the
allowable campaign material size. Diocese of Bacolod tried to
assert their ownership rights over the private property.
Held: SC upheld the property rights of the Diocese of Bacolod. Size
matters.
Q. What is the limit to these powers?
To ensure equal opportunity, time and space, and the right to reply,
including reasonable, equal rates for it, for public information
campaigns and forums among candidates in connection with the
objective of holding free, orderly, peaceful and credible elections.
Q. What is an election survey?
It refers to the measurement of opinions and perceptions of the
voters as regards a candidate’s popularity, qualifications, platforms
or a matter of public discussion in relation to the election, including
voters’ preference for candidates or publicly discussed issues
during the campaign period.
Q. Can election surveys be published?
Yes
SWS v. Comelec
Facts: The Comelec prohibited the publication of election surveys
affecting national and local candidates 15 and 7 days before an
election period, respectively.
Held: It is unconstitutional because:
1. It imposes a prior restraint on the freedom of expression
2. It is a direct and total suppression of a category of
expression even though such suppression is only for a
limited period
3. The governmental interest sought to be promoted can be
achieved by means other than the suppression of freedom
of expression.
Q. What about newspaper columns and commentaries about
candidates?
NPC v. Comelec
The prohibition against political advertisements for newspapers,
radio broadcasting or television station and other mass media
does not restrict reporting of news and news events relating to
candidates, their qualifications, political parties and their platforms
of government. It does not cover commentaries, expressions of
belief or opinion for as long as they are not in fact advertisements
for candidates secretly paid for.
the voters to the prejudice of other candidates unless required to
take a leave of absence.
Q. Are members of the media allowed to campaign for or
against a plebiscite?
Yes, especially since there are no candidates here. In case of
doubt, rule in favor of freedom of expression.
Sanidad v. Comelec
Facts: Comelec resolved that no mass media columnist,
commentator, announcer or personality shall use his or her
column or radio or television time to campaign for or against the
plebiscite issues.
Petitioner contends that it violates constitutional guarantees of the
freedom of expression and of the press. Unlike a regular news
reporter or news correspondent who merely reports the news, a
columnist obviously and necessarily writes his or her opinions,
views and beliefs on any issue or subject. It thus constitutes prior
restraint on the constitutionally-guaranteed freedom of the press
and further imposes subsequent punishment for those who may
violate it because it contains a penal provision.
Comelec contends that it is a valid implementation of its power to
supervise and regulate media during election or plebiscite period.
It does not absolutely bar petition from expressing his views and/
or from campaigning for or against the Organic Act. He may still
express his views or campaign for or against the act through the
Comelec space and airtime.
Held:
It is unconstitutional. What was granted to the Comelec was the
power to supervise and regulate the use and enjoyment of
franchises, permits or other grants issued for the operation of
media of communication or information. It does not include the
right to supervise and regulate the exercise by media practitioners
themselves of their right to expression during plebiscite periods.
Media practitioners exercising their freedom of expression during
plebiscite periods are neither the franchise holders nor the
candidates. In fact, there are not candidates involved in a
plebiscite.
Q. What is exit poll?
It is a species of electoral survey conducted by qualified individuals
or groups of individuals to determine the probable result of an
election by confidentially asking randomly selected voters whom
they have voted for, immediately after they have officially cast their
ballots.
Q. Is it allowed?
No law prohibits the holding and reporting of exit polls. To ban it
absolutely will violate the freedom of expression, speech and of
the press.
ABS-CBN v. Comelec
But it was argued that it should not be allowed, otherwise it violates
the sanctity and secrecy of the ballot, conditions the public mind
and confuses who won and lost in the elections.
These are purely speculative.
First, by the very nature of a survey, the interviewees or
participants are selected at random, so that the results will as
much as possible be representative or reflective of the general
sentiment or view of the community or group polled.
Second, the survey result is not meant to replace or be at par with
the official Comelec count. It consists merely of the opinion of the
polling group as to who the electorate in general has probably
voted for, based on the limited date gathered from polled
individuals.
Finally, not at stake here are the credibility and the integrity of the
elections, which are exercises that are separate and independent
from the exit polls.
The holding and the reporting of the results of exit polls cannot
undermine those of the elections, since the former is only part of
the latter. If at all, the outcome of one can only be indicative of the
other.
Q. So is it allowed?
Q. Are members of the media allowed to run for public office?
Sanidad v. Comelec
Yes, provided he takes leave of absence. Any mass media
columnist, commentator, announcer or personality who is a
candidate for any elective public office is required to take a leave
of absence from his or her work as such during the campaign
period. It is to prevent the possibility that a franchise holder may
favor or give any undue advantage to a candidate in terms of
advertising space or radio or television time. The columnist or
commentator who is also a candidate would be more exposed to
! | UNIVERSITY OF SAN CARLOS
51
ABS-CBN v. Comelec
It is not prohibited, but may be regulated.
A. A specific limited area for conducting exit polls may be
designated
B. Only professional survey groups may be allowed to conduct
the same
C. Pollsters may be kept at a reasonable distance from the
voting center.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
D. They may be required to explain to voters that they may
refuse to be interviewed, and that the interview is not part
of the official balloting process
E. The pollsters may further be required to wear distinctive
clothing that would show they are not election officials
F. They may be required to undertake an information
campaign on the nature of the exercise and the results to
be obtained
G. These measures, together with a general prohibition of
disruptive behaviour, could ensure a clean, safe and
orderly election.
Q. Does it not violate ballot secrecy?
ABS-CBN v. Comelec
In exit polls, the contents of the official ballot are not actually
exposed. The revelation of whom an elector has voted for is not
compulsory, but voluntary. Voters may also choose not to reveal
their identities.
They may be required to undertake an information campaign on the
nature of the exercise and the results to be obtained.
These measures, together with a general prohibition of disruptive
behavior, could ensure a clean, safe and orderly election.
Q. Did COMELEC issue such rules?
Yes, pollsters are:
• Not allowed to conduct a survey within 50 meters from the
polling place
• Wear distinctive clothing
• Inform the voters that they may refuse to answer
INVESTIGATE AND PROSECUTE
POWER TO INVESTIGATE AND PROSECUTE
Q. What covers this power?
It includes cases of violations of election laws, including acts or
omissions constituting election frauds, offenses and malpractices.
Q. Is it exclusive?
• OLD: OEC – Comelec has the exclusive power to investigate and
prosecute election offenses. But it may avail of the assistance of
prosecuting arms of the government.
• NOW: RA 9369 – Comelec and the prosecuting arms of the
government have concurrent jurisdiction to investigate and
prosecute election offenses.
Power to investigate and prosecute does not include the duty
to gather evidence.
Kilosbayan v. Comelec
Facts:
A letter-complaint was filed before the Comelec alleging use of
government funds for election purposes. The evidence attached
were a newspaper column, transcripts of testimony in Congress
hearings and an affidavit. It was dismissed for insufficiency of
evidence, for being plain conjectures and hearsay. But it was
argued that it is incumbent upon the Comelec to gather evidence
as part of its constitutional duty to investigate and prosecute
election offenses.
Held:
The power to investigate and prosecute does not include the
physical searching and gathering of proof in support of a
complaint for an alleged commission of an election offense. A
complainant, who in effect accuses another person of having
committed an act constituting an election offense, has the burden,
as it is his responsibility, to follow through his accusation and
prove his complaint.
The claim that the complainant is a mere informant and not the
private complainant with the burden of proof is ridiculous.
Note: Comelec is not duty bound to collect evidence
The power to investigate and prosecute election offenses is
administrative in nature
Determination of probable cause for the purpose of filing an
election offense case, although involves application of the
knowledge of the law, is not an exercise of quasi-judicial function
because it is an administrative function.
Baytan v. Comelec
The power to investigate and prosecute election offenses, like
double registration, is inherently administrative. Hence, it may be
decided directly by the Commission en banc as opposed to the
exercise of quasi- judicial power which should be heard first by
division and later by the en banc on motion for reconsideration.
The Comelec submits to the President and the Congress a
comprehensive report on the conduct of each election, plebiscite,
initiative, referendum, or recall.
Q. Does the Comelec exercise judicial powers?
Sandoval v. Comelec
Essentially, it does. But since judicial power is technically exercised
by judges and justices, it is more apt to say it performs quasijudicial functions. If the power is judicial in nature or character, but
it does not involve the functions of a judge or is conferred upon an
officer other than the judge, it is quasi-judicial.
Q. When can we say that it exercises quasi-judicial functions?
1. When it exercises original and appellate jurisdiction over
election contests, including pre-proclamation
controversies
Quasi judicial — when comelec resolves election
contests (not only election protests but also quo
warranto proceedings)
Determination of probable cause — administrative
- If administrative — not required to go to comelec
division
- If judicial — required …
2. Appeals from the rulings of the BOCs involving preproclamation controversies.
Decision of COMELEC by Division — Motion for
reconsideration to COMELEC en banc
Decision of comelec en banc — usually none
3. Annulment of proclamation and determination of existence
of manifest errors requires arbitration hence quasi-judicial.
4. Petition for declaration of failure of election on the ground
of missing names and control date, unsecured ballot
boxes, delay in the delivery of election returns.
Failure of election
- it must not be selective; it must apply to all
affected parties
TN: Its determination is only an exercise of administrative functions
and determination of probable cause is administrative.
Sarmiento v COMELEC
Appeals from rulings of the Board of Canvassers involve preproclamation controversies
Sandoval v COELEC
Annulment of proclamation and determination of existence of
manifest errors require arbitration hence quasi-judicial
Canicosa v COMELEC
Petition for declaration of failure of election on the ground of
missing names and control data, unsecured ballot boxes, delay in
the delivery of election returns.
Its determination is only an exercise of administrative functions.
TN: Again, it is important to distinguish because if administrative,
the COMELEC en banc can acquire jurisdiction right away. If
quasi-judicial, it has to go through a division before en banc can
acquire jurisdiction.
Q. What are the necessary incidents of the exercise of quasijudicial powers?
Mendoza v. Comelec
A. It holds hearings and exercises discretion of a judicial
nature.
B. It receive evidence, ascertains facts, and determines the
law and legal rights of the parties.
C. It decides on the merits of the case and renders judgment.
LEGISLATIVE POWERS
Q. What are the legislative powers of Comelec?
A. Rule-making power, “laws and regulations”
B. Suspension of Rules of Procedure
RULE-MAKING POWER
RULE MAKING POWER, “LAWS AND REGULATIONS”
1987 Constitution
It promulgates rules concerning pleadings and practice before it.
Provided, it does not diminish, increase or modify substantive
rights.
Omnibus Election Code
Q. What is covered by the constitutional duty to report?
! | UNIVERSITY OF SAN CARLOS
52
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Promulgate rules and regulations implementing the OEC and other
laws which is required to enforce and administer.
In case of conflict between its rules and any other administrative
government agency concerning the same matter relative to
elections, the Comelec rules prevail.
Q. What is the history of the rule-making power of the
Comelec?
A. 1935 Constitution – It has exclusive charge to enforce and
administer all laws relative to the conduct of elections.
B. 1973 Constitution – It enforces and administers all laws
relative to the conduct of elections. But, it was not
expressly granted the power to promulgate rules and
regulations. It may only be granted by Congress through a
special law.
C. 1987 Constitution – It enforces and administers all laws
and “regulations” relative to the conduct of elections.
Gallardo v. Tabamo
The incorporation of the word “regulations” took into account its
powers to promulgate rules and regulations implementing election
law under the Omnibus Election Code. This upgrades the
statutory authority to promulgate rules and regulations into a
constitutional authority. Otherwise, Congress may withdraw it
anytime and it will violate the independence of the Comelec.
Decisions, final orders, or rulings of the Commission on election
contests involving elective municipal and barangay officials shall
be final, executory and not appealable.
ELECTORAL TRIBUNALS
Supreme Court en banc transforms itself into an electoral tribunal.
TN: PET cannot review its own decision, unless it is a motion for
reconsideration.
Q. What are the Electoral Tribunals?
1. Presidential Electoral Tribunal (PET)
2. Senate Electoral Tribunal (SET)
3. House of Representatives Electoral Tribunal (HRET)
Q. What is their composition?
A. PET – Supreme Court en banc
B. SET & HRET – 9 members
• 3 Justices of the Supreme Court
• 6 Members of the Senate or House
• Chosen based on proportional representation
• Most senior Justice acts as the Chair
Q. Are the rules promulgated by the Comelec binding on the
regular courts?
Q. What is their function?
They are the sole judge of all contests relating to the:
A. Election
B. Returns
C. Qualifications of their respective members
Aruelo Jr v. CA
Q. What is the extent of their jurisdiction?
No. The rules concerning pleadings and practice promulgated by
the Commission on Elections in the exercise of its power to
promulgate rules and regulations are applicable to actions and
proceedings brought before it only. Thus, the prohibition of motion
to dismiss and motion for bill of particulars does not apply in
election protest cases filed before the regular courts where the
Rules of Court applies.
SUSPENSION OF RULES OF PROCEDURE
SUSPENSION OF RULES OF PROCEDURE OF COMELEC
Q. Can the Comelec Rules of Procedure be suspended?
Yes, in the interest of justice and in order to expedite disposition of
cases pending before it.
Lazatin v. HRET
The use of the word “sole” emphasizes the exclusive character of
the jurisdiction conferred. It is complete and unimpaired as if it
remained originally in the legislature. Characterized as full, clear
and complete.
It excludes the exercise of any authority on the part of the Supreme
Court that affects, curtails or restricts it. It is beyond judicial
interference except if it is arbitrary and denies due process. Thus,
in case of conflict between the Omnibus Election Code and the
HRET rules on timeliness, the latter prevails.
Tecson v. Comelec
Guji: wala nani ha. This has been overruled by Llamanzares-Poe v
Comelec case
Llana v. Comelec
Facts:
A candidate lost by a mere 24 votes. It turned out however that in
one election return, his 42 votes was transposed to be a
statement of votes as only 4, denying him 38 votes that could
have won him the election. The election protest he filed was
treated as a petition to correct manifest error. It was opposed
because it must be done within 5 days from proclamation. It was
late by 2 days.
Held:
The Comelec has broad powers. It includes resolution and
determination of election controversies. It has also the power to
promulgate its rules to expedite disposition of election cases.
Concomitant to such powers is the authority to determine the true
nature of cases before it. Thus, it examines the allegations in the
pleadings, aware that in determining the nature of the complaint,
the averment, rather than the caption, is the proper gauge. The
primary duty is to determine the will of the people. When it treated
it as correction, it simply complied with its duty.
JUDICIAL POWERS
JUDICIAL POWERS
Q. What are the judicial powers of Comelec?
• Exercise original jurisdiction over regional, provincial and city
election contests and appellate jurisdiction over municipal
and barangay election contests
• Power to issue extraordinary writs
• Contumacy powers
• Jurisdiction on en banc or division
JURISDICTION OVER ELECTION CONTESTS
JURISDICTION OVER ELECTION CONTESTS
Article IX (C), Section 2
Exercise exclusive jurisdiction over all contests relating to the
elections, returns, and qualifications of all elective regional,
provincial, and city officials, and appellate jurisdiction over all
contests involving elective municipal officials decided by trial
courts of general jurisdiction, or involving elective barangay
officials decided by trial courts of limited jurisdiction.
! | UNIVERSITY OF SAN CARLOS
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But while it is true that the Supreme Court is the sole judge of all
contests relating to the qualifications of the President, it applies
only to the elected President, and not to the candidate for
President, which the Comelec has jurisdiction.
Llamanzares-Poe v COMELEC
The COMELEC is without jurisdiction to disqualify candidate
without the prior finding of a competent court of justice that such
candidate is disqualified.
Q. When does the jurisdiction of the Comelec end and the
HRET begin?
Lazatin v. Comelec
Facts: A district representative was proclaimed, took oath and
assumed office. But the proclamation was nullified by the Comelec
because it was void. The BoC simply corrected the contested
returns without waiting for their final resolution.
Held: The jurisdiction pertains to the HRET because the district
representative already assumed office.
TN: Once the Comelec proclaims you as the winner, the Comelec
loses jurisdiction. Jurisdiction now pertains to the Trial Courts.
Reyes v. Comelec
Facts: The COC of a district representative was cancelled for
material misrepresentation. But since it did not acquire finality yet,
she was proclaimed. The cancellation became final. But she now
argues that after proclamation, the Comelec lost jurisdiction over
her qualification and it now pertains to the HRET.
Held:
Despite proclamation, the Comelec retains jurisdiction because
three conditions did not concur for the HRET to acquire it:
A. Valid proclamation
B. Proper oath
C. Assumption to office (Noon of June 30 following the
elections)
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Proclamation alone does not make Comelec lose jurisdiction. Only
upon concurrence of three instances shall the COMELE lose its
jurisdiction to HRET.
Q. When does the en banc acquire jurisdiction over election
contests?
Only upon motion for reconsideration of the division’s decision,
resolution, order or ruling. But, it must first be filed in the Division
before the en banc takes cognizance through a motion for
reconsideration.
TN: File a motion for reconsideration over the division’s decision to
the en banc.
Roces v. HRET
Facts: There was a pending case for disqualification which
incidents include motions to withdraw and to substitute. But the
division did not promulgate on a date according to its notice to the
parties. Two days before the filing of the motion for
reconsideration, the en banc deleted the name of the candidate
and denied the motions to withdraw and to substitute.
Bulilis v. Nuez
A court may issue a writ of certiorari in aid of its appellate
jurisdiction if it has jurisdiction to review, by appeal or writ of error,
the final orders or decisions of the lower court.
Q. Is the power to issue writs of certiorari, mandamus and
prohibition exclusive to Comelec?
No, it is concurrent with the Supreme Court. But whichever takes
cognizance first exercises exclusive jurisdiction.
CONTUMACY POWERS
CONTUMACY POWERS
Power to cite in contempt
Q. Does the Comelec have the power of contumacy?
Filipinas Eng’g Machine
Only as an incident to the exercise of its quasi-judicial functions.
Thus, the BoC did not canvass the votes of the candidate or the
substitute and proclaimed the winner even after only 6k out of
120k votes were canvassed.
Q. What constitutes contempt?
Any violation of any final and executory decision, order or ruling of
the Commission.
Held: The en banc usurped the jurisdiction of the division in the
absence of a motion for reconsideration. Nowhere is it provided in
the law that the en banc has the power to assume motu proprio
over a petition to deny due course pending before a division.
JURISDICTION OF EN BANC OR DIVISION
JURISDICTION OF EN BANC OR DIVISION
Q. When does the Comelec sit in division?
TN: If it calls for the application of law – quasi-judicial in nature
(must pass first before the division before the en banc)
Bulilis v. Nuez
Facts: A Punong barangay won by a margin of 4 votes but it was
protested before the MTC. A notice of preliminary hearing was
issued, but the counsel for the winner claimed he did not receive
it, or even if he did, it was not specified as preliminary conference
thus he failed to file a brief.
The Court then allowed protestant to present evidence ex parte.
The counsel for the winner fled petition for certiorari before the
RTC but it was dismissed for lack of jurisdiction.
Held: In aid of its appellate jurisdiction, the Comelec takes
cognizance over petitions for certiorari against all acts or
omissions of courts in election cases, including interlocutory
orders.
In aid of its appellate jurisdiction means that if a case may be
appealed to a particular court or tribunal, it has jurisdiction to issue
writ of certiorari.
TN: It can take cognizance over petitions of certiorari only in aid of
its appellate jurisdiction.
Q. Does the hierarchy of courts apply in election cases?
Flores v. Comelec
Facts: Section 9 of RA 6679 provides that the decision of the MTC
on an election protest may be appealed to the RTC.
Held: This is unconstitutional. The Comelec exercises appellate
jurisdiction over all contests involving elective municipal officials
decided by trial courts of general jurisdiction or elective barangay
officials decided by trial courts of limited jurisdiction. And such
decision shall be final, executory and un-appealable.
TN: See Constitution
If barangay – go to MTC If elective official – RTC
Q. Is this rule absolute?
No, it applies only to questions of fact and not of law. It was not
intended to divest the SC of its authority to resolve questions of
law as inherent in its judicial power of review.
POWER TO ISSUE EXTRAORDINARY WRITS
POWER TO ISSUE EXTRAORDINARY WRITS
Q. Does the Comelec have the power to issue writs of
certiorari, mandamus and prohibition?
Carlos v. Angeles
Yes, but only in such cases where it has exclusive appellate
jurisdiction over all contests involving elective municipal and
barangay officials. Simply put, only in aid of its appellate
jurisdiction.
! | UNIVERSITY OF SAN CARLOS
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Canicosa v. Comelec
In the exercise of its quasi-judicial powers, the Comelec is
mandated to hear can decide cases first by division, and upon
motion for reconsideration by the en banc. This is when it is
jurisdictional.
Sarmiento v. Comelec
Facts: The en banc ruled on several appeals from the rulings of the
Board of Canvassers involving pre-proclamation controversies.
Held: Election cases include pre-proclamation controversies. Thus,
the en banc has no authority to hear and decide it at the first
instance.
Soller v. Comelec
The en banc does not have the requisite authority to hear and
decide election cases including pre-proclamation controversies in
the first instance. It pertains to the division. Any decision by the en
banc as regards election cases decided by it is null.
Q. When does the Comelec sit en banc?
In the exercise of its administrative powers.
Baytan v. Comelec
Determination of probable cause for the election offense of double
registration is administrative.
Canicosa v. Comelec
Declaration of failure of election is purely administrative. Only the
SC en banc can declare a failure of election.
CORRECTION OF MANIFEST ERRORS
Q. What is manifest error?
Llana v. Comelec
A. Evident to the eye and understanding
B. Visible to the eye
C. That which is open, palpable and incontrovertible
D. Needing no evidence to make it more clear
E. Not obscure or hidden
Q. What are the instances of manifest error?
A. A copy of election returns or certificate of canvass was
tabulated more than once
B. Two copies of election returns or certificates of canvass
were tabulated separately
C. There was a mistake in the adding or copying of the figures
into the certificate of canvass or into the statement of votes
D. So-called election returns from non-existent precincts were
included in the canvass.
Q. How is a manifest error corrected?
The Board of Canvassers may, motu proprio, or upon verified
petition by any candidate or political party, after due notice and
hearing, correct the error.
ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Q. Can a manifest error be corrected after proclamation?
Torres v. Comelec
Facts: Manifest error was corrected after proclamation upon the
request of the BoC. It was argued it is allowed only prior to
proclamation because after proclamation, the Board of
Canvassers loses jurisdiction.
Held: A proclamation based on a statement of votes containing
erroneous entries is null. It is no proclamation at all and the
assumption to office of the proclaimed winner does not divest the
Commission on Elections the power to annul proclamation. Since
the SOV forms the basis of COCP, any error affects the validity of
the proclamation.
INTERLOCUTORY ORDERS
Q. Can the Comelec issue interlocutory orders?
Yes, as an incident of the exercise of quasi-judicial powers.
Q. Where is it challenged?
Kho v COMELEC
GR: It is taken to the SC Division via certiorari, and not to the en
banc.
XPN: If it falls under Section 2, Rule 3 of the Comelec Rules:
Upon a unanimous vote of all Members of a Division, an
interlocutory matter or issue relative to an action or proceeding
before it is decided to be referred to the en banc.
SUBJECT OF MOTION FOR RECONSIDERATION
Q. What are subjects of motion for reconsideration?
Decision, resolution, order or ruling of a Division.
Q. Can the en banc automatically acquire jurisdiction even
without a motion for reconsideration?
Yes, if the required number is not obtained.
Q. What is that required number?
Concurrence of at least 2 out of 3 members of the division.
Garvida v. Sales
Facts: Without referring the case to any of its divisions, the en banc
directed the canvassers to suspend the proclamation of a
candidate whose eligibility is in question, in case she wins.
Held: The en banc acted without jurisdiction or gravely abused its
discretion.
Zarate v. Comelec
Facts: The MTC annulled the proclamation of an SK Chair because
8 votes in his favor were considered marked ballots. He appealed
to the Comelec and the en banc annulled the decision of the MTC.
Held: It transgresses the Constitutional mandate that election
cases should be heard and decided by the Division at the first
instance.
Soller v. Comelec
A judgment or final order or resolution of the Commission on
Elections may be brought by the aggrieved party to the Supreme
Court on certiorari under Rule 65.
TN: Findings of fact of the Comelec supported by substantial
evidence is final and non-reviewable.
Q. What is the effect of filing?
It does not stay execution of judgment, final order or resolution.
Unless, the Supreme Court directs otherwise upon such terms it
deems just.
CERTIORARI JURISDICTION OF THE SUPREME COURT
Q. What are the grounds for petitions for certiorari and
prohibition?
A. Acts without or in excess of its jurisdiction
B. Gravely abuses its discretion amounting to lack or excess of
jurisdiction
Provided, there is no appeal, or any plain, speedy and
adequate remedy in the ordinary course of law. (Rule 65)
Q. What is the nature of certiorari jurisdiction of the Supreme
Court over the Comelec?
It is a special civil action, not appellate authority of review.
Q. What is covered by the certiorari jurisdiction of the
Supreme Court over the judgment, final ruling, order or
resolution of the Comelec?
A. Grave abuse of discretion amounting to lack or excess of
jurisdiction.
B. Pure questions of law and jurisdiction. (Aratuc v. Comelec)
C. The final orders, ruling and decisions must be in the
exercise of quasi-judicial powers. (Loong v. Comelec)
Aratuc v. Comelec
Facts: The Comelec extended its inquiry of election returns beyond
those examined by the experts and passed upon the canvassers.
It also excluded returns showing 90 to 100% voting turnout.
Held: The Comelec neither exercises its appellate jurisdiction nor
judicial power in this case, hence it can extend its inquiry beyond
what was alleged by the parties.
It exercises plenary prerogative of direct control and supervision
over the canvassers. It is an assertion of statutory authority to
preserve the purity of elections. In doing so, the Comelec did not
act wantonly and arbitrarily.
There may be errors in its conclusions, but these are errors in
judgment not reviewable on certiorari in judgment not reviewable
on certiorari for as long as they are based on substantial
evidence.
Loong v. Comelec
The order to manually count election results during automated
elections is in the exercise of administrative power. Hence, it is not
reviewable on certiorari. The choice or means taken by the
Comelec should not be interfered with.
Facts: An election protest was sought to be dismissed on the
ground of lack of jurisdiction because of non-payment of filing fee.
But it was denied by the RTC. It was brought to the Comelec via
certiorari and the en banc ruled that filing fee was paid.
Salva v. Makalintal
Held: The order denying the motion to dismiss is an incident of an
election protest. If the principal case decided on merits is
appealable to the division, there is no reason why petitions for
certiorari relating to incidents of election protest should not be
decided by the decision at the first instance. The en banc acted
without jurisdiction in taking cognizance of the petition in the first
instance.
Thus, it is not in the nature of a final order reviewable by the
Supreme Court on certiorari.
QUASI-JUDICIAL POWERS
Q. Does the Comelec exercise judicial powers?
Sandoval v. Comelec
Essentially, it does. But since judicial power is technically exercised
by judges and justices, it is more apt to say it performs quasijudicial functions. If the power is judicial in nature or character, but
it does not involve the functions of a judge or is conferred upon an
officer other than the judge, it is quasi-judicial.
Q. Are the decisions of the Comelec subject to judicial review?
Yes, unless otherwise provided by the Constitution or by law, any
decision, order or ruling of the Comelec may be brought to the
Supreme Court on certiorari by the aggrieved party within 30 days
from receipt.
Issuance of a resolution calling for plebiscite and stipulating its
rules and regulations is a ministerial duty, which is mere incident
of its administrative functions. As such, it is not issued pursuant to
its quasi- judicial functions.
Ambil v. Comelec
Facts: A decision of the Division was signed by the ponente before
he retired but “promulgated” after he did. The order scheduling the
promulgation was challenged via certiorari.
Held: It is premature. It is a decision of a Division, not en banc.
There is no promulgation yet, so the decision sought to be
annulled was not yet received. There is no motion for
reconsideration which is mandatory.
Q. Is motion for reconsideration mandatory?
Reyes v. RTC
In a petition for certiorari, motion for reconsideration may be
dispensed with under certain exceptions. It does not apply to
election cases where motion for reconsideration is mandatory by
constitutional fiat.
A motion for reconsideration must be elevated to the en banc which
final decision is reviewable via certiorari by the Supreme Court.
! | UNIVERSITY OF SAN CARLOS
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ELECTION LAWS | Atty. Ferdinand Gujilde | Notes by Tanya Ibanez | Updated by EH 407 2016-17 | Updated by Suan EH 405 2017-2018
Q. If the en banc decides administratively, can there be a
motion for reconsideration?
No, unless it involves an election offense. But, if the Division
gravely abused its discretion or acted without or in excess of
jurisdiction in issuing an interlocutory order, and it does not fall
under any of the instances in Section 2, Rule 3 of the Comelec
Rules of Procedures, the remedy is not to elevate it to the en banc
but to the Supreme Court via certiorari.
RELATIONSHIP WITH LOWER COURTS
Q. What is the relationship of the Comelec with the lower
courts?
Comelec v. Datu-imam
Facts: The Comelec ordered its field officer to remove one
barangay from a municipality because it had been illegally
created. Thus, the election officer did not accept certificates of
candidacy for that barangay. The Presiding Judge of the MTC
enjoined the Comelec from implementing its order.
Held: Lower courts cannot issue writs of injunction against the
Comelec because of their subordinate status and rank to it.
Macud v. Comelec
In the discharge of its functions, the Comelec should not be
hampered with restrictions. It may err, so may the Supreme Court.
But it should be allowed considerable latitude in devising means
and methods to ensure a free, orderly and honest elections.
If the lower court were to arrogate unto itself the power to
disregard, suspend or contradict any order of the Comelec, that
constitutional body would be speedily reduced to impotence.
Gallardo v. Tabamo
Facts:
A candidate for governor filed a special civil action with the RTC
against his opponent to prohibit him from:
A. Pursuing certain public works projects
B. Releasing, disbursing or spending public funds for such
projects because it fell within the 45-day ban on public
works during the election period.
C. Hiring of hundreds of laborers is intended to buy votes
D. The RTC judge issued a temporary restraining order
Held:
RTC has no jurisdiction over violations of the Omnibus Election
Code and the related resolution issued by the Comelec. The
judiciary has no authority to participate in the enforcement of
election laws.
The literal language of the Constitution empowers the Comelec to
have the exclusive charge to enforce and administer all laws
relative to the conduct of elections.
! | UNIVERSITY OF SAN CARLOS
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