BASED ON NACHURA’S OUTLINE REVIEWER IN POLITICAL LAW
I. INTRODUCTION
A.
Definitions
SUFFRAGE: the right to vote in the election of officers chosen by the people
and in the determination of questions submitted to the people. Includes within
its scope: election, plebiscite, initiative and referendum
ELECTION: 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
a.
b.
B.
REGULAR: one provided by law for the election of officers either
nation-wide or in certain subdivisions thereof, after the expiration
of the full term of the former officers
SPECIAL: one held to fill a vacancy in office before the expiration
of the full term for which the incumbent was elected
Theories of Suffrage
1.
NATURAL RIGHT THEORY: suffrage is a natural and inherent right of
every person who is not qualified by reason of his own reprehensible
conduct of unfitness.
2.
SOCIAL EXPEDIENCY: suffrage is public office or function conferred upon
the citizen for reasons of social expediency; conferred upon those who are
fit and capable of discharging it.
3.
TRIBAL THOERY: it is a necessary attribute of membership in the State.
4.
FEUDAL THEORY: it is an adjunct of a particular status, generally tenurial
in character, i.e. vested privilege usually accompanying ownership of land.
5.
ETHICAL THEORY: it is a necessary and essential means for the
development of society.

Theory prevailing in the Philippines: SUFFRAGE is both a PRIVILEGE and an
OBLIGATION.
C.
1.
2.
3.
4.
5.
Qualifications for Suffrage
Citizen of the Philippines
Not otherwise disqualified by law
At least 18 years old
Resided in the Philippines for at least 1 year
Resided in the place where he is voting for at least 6 months
D.
Disqualifications (BP 881, Sec. 118 | RA 9189 Sec. 5)
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1987 Philippine Constitution
ARTICLE V
SUFFRAGE
Section 1. Suffrage may be exercised by all citizens of the Philippines, not
otherwise disqualified by law, who are at least eighteen years of age, and who
shall have resided in the Philippines for at least one year and in the place
wherein they propose to vote, for at least six months immediately preceding the
election. No literacy, property, or other substantive requirement shall be
imposed on the exercise of suffrage.
Section 2. The Congress shall provide a system for securing the secrecy and
sanctity of the ballot as well as a system for absentee voting by qualified
Filipinos abroad.
The Congress shall also design a procedure for the disabled and the illiterates to
vote without the assistance of other persons. Until then, they shall be allowed
to vote under existing laws and such rules as the Commission on Elections may
promulgate to protect the secrecy of the ballot.
Omnibus Election Code of the Philippines
BP Blg. 881
Section 117. Qualifications of a voter. - Every citizen of the Philippines, not
otherwise disqualified by law, eighteen years of age or over, who shall have
resided in the Philippines for one year and in the city or municipality wherein he
proposes to vote for at least six months immediately preceding the election,
may be registered as a voter.
Any person who transfers residence to another city, municipality or country
solely by reason of his occupation; profession; employment in private or public
service; educational activities; work in military or naval reservations; service in
the army, navy or air force; the constabulary or national police force; or
confinement or detention in government institutions in accordance with law,
shall be deemed not to have lost his original residence.
Section 118. Disqualifications. - The following shall be disqualified from voting:
(a) Any person who has been sentenced by final judgment to suffer
imprisonment for not less than one year, such disability not having been
removed by plenary pardon or granted amnesty: Provided, however, That any
person disqualified to vote under this paragraph shall automatically reacquire
the right to vote upon expiration of five years after service of sentence.
(b) Any person who has been adjudged by final judgment by competent court
or tribunal of having committed any crime involving disloyalty to the duly
constituted government such as rebellion, sedition, violation of the antisubversion and firearms laws, or any crime against national security, unless
restored to his full civil and political rights in accordance with law: Provided,
That he shall regain his right to vote automatically upon expiration of five years
after service of sentence.
(c) Insane or incompetent persons as declared by competent authority.
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Overseas Absentee Voting Act of 2003
RA No. 9189
Sec. 5. Disqualifications. – The following shall be disqualified from voting under
this Act:
1. Those who have lost their Filipino citizenship in accordance with
Philippine laws;
2.
Those who have expressly renounced their Philippine citizenship and
who have pledged allegiance to a foreign country;
3.
Those who have committed and are convicted in a final judgment by a
court or tribunal of an offense punishable by imprisonment of not less
than one (1) year, including those who have committed and been
found guilty of Disloyalty as defined under Article 137 of the Revised
Penal Code, such disability not having been removed by plenary
pardon or amnesty; Provided, however, That any person disqualified to
vote under this subsection shall automatically acquire the right to vote
upon expiration of five (5) years after service of sentence; Provided,
further, That the Commission may take cognizance of final judgments
issued by foreign courts or tribunals only on the basis of reciprocity
and subject to the formalities and processes prescribed by the Rules of
Court on execution of judgments;
4.
5.
An immigrant or a permanent resident who is recognized as such in the
host country, unless he/she executes, upon registration, an affidavit
prepared for the purpose by the Commission declaring that he/she
shall resume actual physical permanent residence in the Philippines not
later than three (3) years from approval of his/her registration under
this Act. Such affidavit shall also state that he/she has not applied for
citizenship in another country. Failure to return shall be the cause for
the removal of the name of the immigrant or permanent resident from
the National Registry of Absentee Voters and his/her permanent
disqualification to vote in absentia.
Any citizen of the Philippines abroad previously declared insane or
incompetent by competent authority in the Philippines or abroad, as
verified by the Philippine embassies, consulates or foreign service
establishments
concerned,
unless
such
competent
authority
subsequently certifies that such person is no longer insane or
incompetent.
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CASES
1. O’HARA v COMELEC
FACTS
On May 19, 2001, the Provincial Board of Canvassers (PBC) proclaimed
petitioner Teodoro O’Hara as the duly elected vice-governor with 216,798 votes
over respondent Jovita Rodriguez’s 215,443 votes.
However on May 23, 2001, the Municipal Board of Canvassers (MBC) of
Binangonan, Rizal filed with the COMELEC en banc, a petition to correct entries
in the certificate of canvass of votes, to allegedly correct typographical errors in
the number of votes garnered by petitioner and respondent resulting in the
addition of 7,000 votes to petitioner together with the petition MBC also
submitted the affidavit of Evelyn Ramirez, the Municipal Accountant admitting
that she committed the mathematical error due to due to fatigue, sleepless
nights and physical exhaustion.
Respondent Rodriguez then filed with the COMELEC a petition to annul the
proclamation of the winning candidate for vice-governor, and to correct an
alleged manifest mathematical error, while petitioner filed his answer arguing
that there was no manifest error to be corrected, and that respondent’s petition
was filed out of time.
On July 25, 2001, the COMELEC issued a resolution in favor of respondent and
ordered the correction of the error. Thereafter the PBC reconvened, however
petitioner was not notified of the proceedings, which lead to the proclamation of
the respondent as the duly elected Vice-Governor of Rizal. Hence, this petition.
ISSUE
Whether there exist a manifest error in the certificate if canvas of votes.
HELD
NONE. According to the Court, It is apparent that the errors sought to be
corrected does not appear on the face of the certificate of canvass, that there is
nothing on the certificate of canvass that shows the addition of 7,000 votes in
favor of petitioner.
To the court A manifest clerical error is “one that is visible to the eye or obvious
to the understanding, and is apparent from the papers to the eye of the
appraiser and collector, and does not include an error which may, by evidence
dehors the record be shown to have committed."
This Court explained that to be manifest, the errors must appear on the face of
the certificates of canvass or election returns sought to be corrected and/or
objections thereto must have been made before the board of canvassers and
specifically noted in the minutes of their respective proceedings.
Additionally, according to the Court, MBC failed to specify the one hundred
precincts where the 7,000 votes came from, and that the preceding page
referred to by both MBC and Evelyn from which the 7,000 subtotal was from
was never identified. For the majority COMELEC relied heavily on the self-
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serving affidavits of the MBC and Evelyn in reaching its decision, which has long
been frowned upon by the courts.
To the Court it would have been more prudent to order at least the examination
of the election returns to verify the existence of the alleged error instead of
concluding outright that the Statements of Votes submitted by respondents
were accurate and correctly prepared. A more thorough study of the matter
would have been more appropriate under the circumstances especially
considering that what is at stake is the sanctity of the right of suffrage which we
are bound to uphold.
In its decision the Court stated the following:
In any election contest, the ultimate issue is to determine the electoral will. In
other words, who among the candidates was the voters’ choice.
That under the Philippine Jurisdiction election means, "the choice or selection of
candidates to public office by popular vote, through the use of the ballot, and
elected officials are determined through the will of the electorate.”
An election is the embodiment of the popular will, the expression of the
sovereign power of the people. Specifically, the term election, in the context of
the Constitution, may refer to the conduct of the polls, including the listing of
voters, the holding of the electoral campaign, and the casting and counting of
votes.
Election contests involve public interest, and technicalities and procedural
barriers must yield if they constitute an obstacle to the determination of the
true will of the electorate in the choice of their elective officials.
The Dissenting opinion:
According to Justice Puno, he believes that there exists a manifest error. In the
opinion of the justice, the majority has missed the issued by confining its focus
on the certificate of canvass. The manifest error in the case at bar refers to the
typographical error committed in transferring the votes from the statement of
votes to the certificate of canvass. In his opinion the Majority shouldn’t have
look for a manifest error in the certificate of canvass or concerned themselves
with the origin of the 7,000 votes as this wasn’t the issue at hand.
Additionally, Justice Puno pointed out that during the whole procedure
petitioner O’Hara never questioned the validity of the statement of votes from
the municipality of Binangonan, when it was presented as evidence by the
respondent to show the manifest error that was committed, where it showed
that O’Hara garnered 28,754 votes and not 35,754. Furthermore in the same
way O’Hara never questioned the affidavit of Evelyn, nor did petitioner ever
asked Evelyn to be cross-examined to determine the truthfulness of her
affidavit, hence in the opinion of Justice Puno, the affidavit along with the other
evidences presented in the case should not be dismissed as self-serving as it
was properly submitted and that the petitioner never questioned its validity
throughout the proceeding. Lastly following jurisprudence such mathematical
errors or typographical errors are historically allowed to be corrected by the
Commission.
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2.
MACALINTAL v COMELEC
FACTS
Fifteen years since the ratification of the 1987 Constitution requiring Congress
to provide a system for absentee voting by qualified Filipinos abroad, the
congress enacted Republic Act No. 9189 (The Overseas Absentee Voting Act of
2003) in compliance with Art. V Sec 2 of the Philippine Constitution, which
provides that the congress shall provide a system for voting by qualified
Filipinos abroad.
Petitioner, Romulo B. Macalintal, member of the Philippine Bar, as a taxpayer
and as a lawyer seeks for the declaration that certain provisions of Republic Act
No. 9189 suffer from constitutional infirmity.
Section 5(d) provides, that an immigrant or a permanent resident who is
recognized as such in the host country is disqualified from voting, unless he/she
executes, upon registration, an affidavit prepared for the purpose by the
Commission declaring that he/she shall resume actual physical permanent
residence in the Philippines not later than three (3) years from approval of
his/her registration under this Act. Such affidavit shall also state that he/she
has not applied for citizenship in another country. Failure to return shall be
cause for the removal of the name of the immigrant or permanent resident from
the National Registry of Absentee Voters and his/her permanent disqualification
to vote in absentia.
Petitioner asserts that Section 5(d) is unconstitutional because it violates
Section 1, Article V of the 1987 Constitution which requires that the voter must
be a resident in the Philippines for at least one year and in the place where he
proposes to vote for at least six months immediately preceding an election.
Additionally in a case decided by the Court, it held that a "green card" holder
immigrant to the United States is deemed to have abandoned his domicile and
residence in the Philippines.
ISSUES
Does Section 5(d) of Rep. Act 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. Section 5 (d) of R.A. 9189 is valid.
In the opinion of the Court, Seeing as the R.A. was enacted in compliance to
Art. V Sec. 2 of the Constitution and that essence of R.A. No. 9189 which is to
enfranchise overseas qualified Filipinos, it behooves the Court to take a holistic
view of the pertinent provisions of both the Constitution and R.A. No. 9189. It is
a basic rule in constitutional construction that the Constitution should be
construed as a whole. Furthermore seeing as Section 2 does not provide for the
parameters of the exercise of legislative authority in enacting the said law.
Hence, in the absence of restrictions, Congress is presumed to have duly
exercised its function based on the doctrine of Presumption of Regularity.
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ELECTION LAW 2010 | 2D
Contrary to petitioner’s claim that Section 5(d) circumvents the Constitution,
Congress enacted the law prescribing a system of overseas absentee voting in
compliance with the constitutional mandate. Such mandate expressly requires
that Congress provide a system of absentee voting that necessarily presupposes
that the "qualified citizen of the Philippines abroad" is not physically present in
the country. The provisions of Sections 5(d) and 11 are components of the
system of overseas absentee voting established by R.A. No. 9189. The qualified
Filipino abroad who executed the affidavit is deemed to have retained his
domicile in the Philippines. He is presumed not to have lost his domicile by his
physical absence from this country. His having become an immigrant or
permanent resident of his host country does not necessarily imply an
abandonment of his intention to return to his domicile of origin, the Philippines.
Therefore, under the law, he must be given the opportunity to express that he
has not actually abandoned his domicile in the Philippines by executing the
affidavit required by Sections 5(d) and 8(c) of the law.
or permanent residents from the National Registry of Absentee Voters and their
permanent disqualification to vote in absentia.
As to the eventuality that the Filipino abroad would renege on his undertaking
to return to the Philippines, the penalty of perpetual disenfranchisement
provided for by Section 5(d) would suffice to serve as deterrence to noncompliance with his/her undertaking under the affidavit. Petitioner argues that
should a sizable number of "immigrants" renege on their promise to return, the
result of the elections would be affected and could even be a ground to contest
the proclamation of the winning candidates and cause further confusion and
doubt on the integrity of the results of the election. Indeed, the probability that
after an immigrant has exercised the right to vote, he shall opt to remain in his
host country beyond the third year from the execution of the affidavit, is not
farfetched. However, it is not for this Court to determine the wisdom of a
legislative exercise. As expressed in Tañada vs. Tuvera,40 the Court is not
called upon to rule on the wisdom of the law or to repeal it or modify it if we
find it impractical.
FACTS
Imelda Romualdez-Marcos, applied as a candidate to contest elections to the
House of Representatives in the district of Leyte. The incumbent representative
of the constituency of Leyte, Cirilo Roy Montejo (a candidate for the same
position) applied to COMELEC have Imelda Romualdez-Marcos’s application
rejected on the grounds that it did not meet the constitutional requirement for
residency. The constitutional requirement for residency for election purposes
stated that in order to contest a position, the candidate must have resided in
the location for which they are standing for a period of one year or more. The
purpose of the provision was to prevent the possibility of strangers or
newcomers who were unacquainted with the needs of a community standing for
office.
Congress itself was conscious of said probability and in fact, it has addressed
the expected problem. It must be emphasized that Section 5(d) does not only
require an affidavit or a promise to "resume actual physical permanent
residence in the Philippines not later than three years from approval of his/her
registration," the Filipinos abroad must also declare that they have not applied
for citizenship in another country. Thus, they must return to the Philippines;
otherwise, their failure to return "shall be cause for the removal" of their names
"from the National Registry of Absentee Voters and his/her permanent
disqualification to vote in absentia." Additionally, Under Section 9, should a
registered overseas absentee voter fail to vote for two consecutive national
elections, his name may be ordered removed from the National Registry of
Overseas Absentee Voters.
Other serious legal questions that may be raised would be: what happens to the
votes cast by the qualified voters abroad who were not able to return within
three years as promised? What is the effect on the votes cast by the nonreturnees in favor of the winning candidates? The votes cast by qualified
Filipinos abroad who failed to return within three years shall not be invalidated
because they were qualified to vote on the date of the elections, but their
failure to return shall be cause for the removal of the names of the immigrants
Lastly, the jurisprudential declaration in Caasi vs. Court of Appeals that green
card holders are disqualified to run for any elective office finds no application to
the present case because the Caasi case did not, for obvious reasons, consider
the absentee voting rights of Filipinos who are immigrants and permanent
residents in their host countries. (The RA in question was not yet enacted at
that time, therefore absentee voting wasn’t even possible at that time.)
In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189, they
may still be considered as a "qualified citizen of the Philippines abroad" upon
fulfillment of the requirements of registration under the new law for the purpose
of exercising their right of suffrage.
3.
ROMUALDEZ-MARCOS v COMELEC
In her original application form, Imelda Romualdez-Marcos had stated that she
had resided in Leyte for seven months. In response to the complaint fled by
Cirilo Roy Montejo she amended the time of residency in her application from
seven months to “since childhood”. She claimed that the entry of the word
“seven” in her original Certificate of Candidacy was the result of an “honest
misinterpretation”, which she now sought to rectify. She further stated that she
had always maintained Tacloban (in the district of Leyte) as her domicile or
residence.
COMELEC, after considering the petition of Cirilo Roy Montejo to have the
candidacy of Imelda Romualdez-Marcos rejected, found the claim meritorious
and refused her original application for candidacy and her amended version.
COMELEC rejected her application for candidacy on the basis that her conduct
revealed that she did not intend to make Tacloban her domicile, that she had
registered as a voter in different places, and on several occasions had declared
that she was a resident of Manila. COMELEC stated that although she spent her
school days in Tacloban she had abandoned residency when she chose to stay
and reside in other places. Imelda Romualdez-Marcos subsequently appealed to
the Supreme Court requesting a declaration that she had been a resident, for
election purposes, of the First District of Leyte for a period of one year at the
time she applied to contest the 1995 elections.
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She argued that the meaning of residency in the Constitution, which designated
the requirements for candidacy for election purposes, was that of domicile. She
argued that she had domicile in Leyte because that was her place of original
domicile and she had not acted to replace that domicile with another. She also
argued that her marriage and changes of residency alongside her husband
when he changed residency did not result in a change in her place of domicile.
In support of that argument she claimed that section 69 of the Family Code
1988, which gives a husband and wife the right to jointly fix the family domicile,
illustrates the intent of the Philippines Parliament to recognize the rights of
women. She claimed therefore that since she had domicile in Leyte she
automatically fulfilled the requirements for a one-year residency for election
purposes.
The respondents argued the meaning of residency in Article 110 of the Civil
Code 1950 was the meaning that should be applied to the constitutional
requirement for a one-year residency prior to qualifying for candidacy for the
elections. Imelda Romualdez-Marcos, they argued, had changed her residency
to that of her husband upon her marriage and at the same time automatically
gained her husband’s domicile. After returning to Leyte she had resided there
for only seven months and she therefore did not satisfy the one year
requirement for candidacy.
ISSUE
Whether Imelda Marcos possessed the necessary residence qualifications to run
in Leyte as a candidate for House of Representatives
HELD
YES. The Court held that the term “residence” in the context of qualifying for
certain elected positions is synonymous with the term domicile. Domicile
denotes a fixed permanent residence to which one intends to return after an
absence. A person can only have a single domicile, although they can abandon
one domicile in favor of another. To successfully change domicile, one must
demonstrate three (3) requirements:

an actual removal or an actual change of domicile;

a bona fide intention of abandoning the former place of residence and
establishing a new one;

and one must act in accordance with that intent.
Only with clear and positive evidence that all three requirements have been met
will the residence of origin be lost, otherwise residency will be deemed to
continue.
The Court held that the meaning of “residence” in Article 110 of the Civil Code,
which states that “the husband shall fix the residence of the family”, is different
therefore to the meaning of residence in the Constitution. The term residence
may have one meaning in civil law (as under the Civil Code) and another
different meaning in political law as represented in the election requirements
identified in the Constitution. Residency is satisfied under the Civil Code if a
person establishes that they intend to leave a place when the purpose for which
they have taken up their abode ends. The purpose of residency might be for
pleasure, business, or health and a person may have different residences in
ELECTION LAW 2010 | 2D
various places. However, residency in the Constitution as opposed to the Civil
Code means domicile and therefore the key issue is to determine the domicile of
the petitioner, Imelda Romualdez-Marcos. The Court held that Article 110 does
not create a presumption that a wife automatically gains a husband’s domicile
upon marriage. When the petitioner was married to then Congressman Marcos
in 1954, she was obliged by virtue of Article 110 of the Civil Code to follow her
husband’s actual place of residence as fixed by him. The right of the husband to
fix the residence was in harmony with the intention of the law to strengthen and
unify the family. It recognised the fact that the husband and wife bring into the
marriage different domiciles and if the husband has to stay in or transfer to any
one of their residences, the wife should necessarily be with him in order that
they may “live together.” However, the term “residence” in Article 110 of the
Civil Code does not mean domicile and therefore it cannot be correctly argued
that petitioner lost her domicile as a result of her marriage to the late President
Ferdinand E. Marcos in 1952. The Court also held that it would be illogical for
the Court to assume that a wife cannot regain her original domicile upon the
death of her husband, if she has not positively selected a new one during the
subsistence of the marriage itself.
The Court held that the new Family Code, which was introduced to replace the
Civil Code, confirmed the petitioner’s argument that marriage does not
automatically change a wife’s domicile to that of her husband. The Family Code
replaced the term “residence” (used in the Civil Code) with the term “domicile”.
Article 69 of the Family Code gives a husband and wife the right to jointly fix
the family domicile. The provision recognized revolutionary changes in the
concept of women’s rights in the intervening years by making the choice of
domicile a product of mutual agreement between the spouses. The provision
recognized the right of women to choose their own domicile and removed the
automatic transfer of a husband’s domicile to his wife.
II. THE COMMISSION ON ELECTIONS
A.
Qualifications of the Chairman and Commissioners
1.
2.
3.
4.
Natural-born citizens of the Philippines
At least thirty-five years of age
Holders of a college degree
Must not have been candidates for any elective positions in the immediately
preceding elections
5. A majority thereof, including the Chairman, shall be members of the
Philippine Bar who have been engaged in the practice of law for at least ten
years.
1.
2.
B.
Purpose
C.
Constitutional and Statutory Powers
Have exclusive charge of enforcement and administration of election law
Exercise supervision and control over officials required to perform duties
relative to the conduct of election
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3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
Authorize any instrumentality of the government, except civilian home
defense forces, to act as deputies
Promulgate rules and regulations
Summon parties to a controversy pending before it
Punish contempt only in connection with its judicial functions
Enforce its decisions and orders
Prescribe forms to be used in the election
Procure supplies and materials needed for the election
Prescribe latest technological and electronic devices upon notice to
accredited political parties and candidates not less than 30 days before.
Carry out campaign to educate the public about elections
Enlist non-partisan groups to assist
Conduct hearings on controversies pending before it in the cities and
provinces
Fix periods for pre-election requirements
Recommend the imposition of disciplinary action upon an employee it has
deputized for violation of its order
Make minor adjustments of the apportionment of legislative districts
Adjust the apportionment in case of creation of new province or city
Divide a province with only one legislative district into two districts for
purposes of the election of the members of the Sangguniang Kabataan
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elections, returns, and qualifications of all elective regional, provincial,
and city officials, and appellate jurisdiction over all contests involving
elective municipal officials decided by trial courts of general
jurisdiction, or involving elective barangay officials decided by trial
courts of limited jurisdiction. Decisions, final orders, or rulings of the
Commission on election contests involving elective municipal and
barangay offices shall be final, executory, and not appealable.
3.
Decide, except those involving the right to vote, all questions affecting
elections, including determination of the number and location of polling
places, appointment of election officials and inspectors, and
registration of voters.
4.
Deputize, with the concurrence of the President, law enforcement
agencies and instrumentalities of the Government, including the Armed
Forces of the Philippines, for the exclusive purpose of ensuring free,
orderly, honest, peaceful, and credible elections.
5.
Register, after sufficient publication, political parties, organizations, or
coalitions, which, in addition to other requirements, must present their
platform or program of government; and accredit citizens' arms of the
Commission on Elections. Religious denominations and sects shall not
be registered. Those which seek to achieve their goals through violence
or unlawful means, or refuse to uphold and adhere to this Constitution,
or which are supported by any foreign government shall likewise be
refused
registration.
Financial
contributions
from
foreign
governments and their agencies to political parties, organizations,
coalitions, or candidates related to elections, constitute interference in
national affairs, and, when accepted, shall be an additional ground for
the cancellation of their registration with the Commission, in addition
to other penalties that may be prescribed by law.
6.
File, upon a verified complaint, or on its own initiative, petitions in
court for inclusion or exclusion of voters; investigate and, where
appropriate, prosecute cases of violations of election laws, including
acts or omissions constituting election frauds, offenses, and
malpractices.
7.
Recommend to the Congress effective measures to minimize election
spending, including limitation of places where propaganda materials
shall be posted, and to prevent and penalize all forms of election
frauds, offenses, malpractices, and nuisance candidacies.
8.
Recommend to the President the removal of any officer or employee it
has deputized, or the imposition of any other disciplinary action, for
violation or disregard of, or disobedience to, its directive, order, or
decision.
9.
Submit to the President and the Congress, a comprehensive report on
the conduct of each election, plebiscite, initiative, referendum, or
recall.
1987 Philippine Constitution
ARTICLE IX
CONSTITUTIONAL COMMISSIONS
C. THE COMMISSION ON ELECTIONS
Section 1.
1. There shall be a Commission on Elections composed of a Chairman and
six Commissioners who shall be natural-born citizens of the Philippines and,
at the time of their appointment, at least thirty-five years of age, holders of
a college degree, and must not have been candidates for any elective
positions in the immediately preceding elections. However, a majority
thereof, including the Chairman, shall be members of the Philippine Bar
who have been engaged in the practice of law for at least ten years.
2. The Chairman and the Commissioners shall be appointed by the
President with the consent of the Commission on Appointments for a term
of seven years without reappointment. Of those first appointed, three
Members shall hold office for seven years, two Members for five years, and
the last Members for three years, without reappointment. Appointment to
any vacancy shall be only for the unexpired term of the predecessor. In no
case shall any Member be appointed or designated in a temporary or acting
capacity.
Section 2. The Commission on Elections shall exercise the following powers
and functions:
1. Enforce and administer all laws and regulations relative to the conduct
of an election, plebiscite, initiative, referendum, and recall.
2.
Exercise exclusive original jurisdiction over all contests relating to the
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Omnibus Election Code of the Philippines
BP Blg. 881
Section 185. Sample official ballots. - The Commission shall provide the board
of election inspectors with sample official ballots at the rate of thirty ballots per
polling place. The sample official ballots shall be printed on colored paper, in all
respects like the official ballots but bearing instead the words "Sample Official
Ballot", to be shown to the public and used in demonstrating how to fill out and
fold the official ballots properly. No name of any actual candidate shall be
written on the spaces for voting on the sample official ballots provided by the
Commission, nor shall they be used for voting.
COMELEC Resolution No. 8747
Authority of COMELEC to appoint, fill-up positions and transfer or
reassign its personnel in connection with the May 10, 2010 National
and Local Elections
WHEREAS, Section 261 (g), and (h) of the Omnibus Election Code of the
Philippines provides that:
"SEC. 261. Prohibited Acts. - The following shall be guilty of an election
offense:
"(g) Appointment of new employees, creation of new position, promotion, or
giving salary increases. - During the period of forty-five (45) days before a
regular election and thirty (30) days before a special election, (1) any head,
official or appointing officer of a government office, agency or instrumentality,
whether national or local, ,including government- owned or controlled
corporations, who appoints or hires any new employee, whether provisional,
temporary or casual, or creates and fills any new positions, except upon prior
authority of the Commission. The Commission shall not grant the authority
sought unless, it is satisfied that the office or agency concerned, and that the
position shall not be filled in a manner that may influence the election.
"As an exception to the foregoing provisions, a new employee may be appointed
in case of urgent need: Provided, however, that notice of the appointment shall
be given to the Commission within three days from the date of appointment.
Any appointment or hiring in violation of this provision shall be null and void.
XXX
XXX
XXX
"(h) Transfer of officers and employees in the civil service. - Any public official
who mikes or causes any transfer or detail whatever of any officer or employee
in the civil service including public school teachers within the election period,
except upon approval of the Commission."
XXX
XXX
XXX
WHEREAS, on December 29, 2009, the Commission promulgated Resolution
No. 8737 to enforce effectively the foregoing prohibitions of Section 261 (g),
and (h) of the Omnibus Election Code;
WHEREAS, there is an essential need to appoint, assign, reassign or transfer
Commission personnel during the prohibited period in order that it can
effectively and efficiently carry out its constitutional mandate to conduct free,
orderly, honest, peaceful and credible elections;
NOW, THEREFORE, the Commission by virtue of the powers conferred upon by
it by the Constitution, the Omnibus Election Code and other election laws, has
RESOLVED, as it hereby RESOLVES, to authorize the appointment, hiring of
new employees or filling of new positions, and transfer or assignment or
reassignment of Commission personnej during the election period.
COMELEC Resolution No. 8737
In the matter of enforcing the prohibitions against appointment or
hiring of new employees, creating or filling of new positions, giving any
salary increase or transferring or detailing any officer or employee in
the Civil Service and suspension of elective local officials, in connection
with the May 10, 2010 National and Local Elections
SECTION 1.Prohibited acts.
A. During the election period from January 10, 2010 to June 09, 2010, no public
official shall, except upon prior written authority of the Commission:
1. Make or cause any transfer or detail whatsoever of any officer or
employee in the civil service, including public school teachers. "Transfer”
as used in this provision shall be construed as any personnel movement
from one government agency to another or from one department,
division, geographical unit or subdivision of a government agency to
another with or without the issuance of an appointment.
2. Suspend any elective provincial, city, municipal or barangay officer,
unless the suspension will be for purposes of applying the "Anti-Graft
and Corrupt Practices Act" in relation to the suspension and removal of
elective officials.
B. Beginning March 26, 2010 until May 10, 2010
6. No head or appointing officer of any national or local government office,
agency or instrumentality, including government-owned or controlled
corporations, shall, except upon prior authority of the Commission:
a. Appoint or hire any new employee, whether permanent,
provisional, temporary, substitute or casual; or
b. Create and fill any new position.
7.
No government official shall promote or give any increase of salary or
remuneration or privilege to any government official or employee,
including those in government-owned or controlled corporations.
SECTION2. Request for authority of the Commission on transfer or
detail; Where and How to file.
A. Requests for authority to make or cause any transfer or detail shall be in
writing, indicating the (1)office and place to which the officer or employee is
proposed to be transferred or detailed or otherwise moved; and (2) stating
the reasons therefor:
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B.
Said request shall be filed with:
1. The Law Department –
Requests for authority to make or cause any transfer or detail of any
officer or employee in the civil service shall be filed with the Law
Department, when:
a. The official station is in the central/main offices of national
agencies and government-owned or controlled corporations
b.
c.
2.
It involves Regional Directors, Assistant Regional Directors or
positions
of
similar
rank,
Philippine
National
Police
Provincial/District Directors or Commanders, Officers of the
Armed Forces of the Philippines with the rank of major or
equivalent rank, and/or holding positions of battalion commanders
or
higher,
Provincial
Treasurers
and
Schools
Division
Superintendents, irrespective of their official stations and
government employees with official stations in the field offices
including the National Capital Region; and
The transfer or detail is inter-regional.
ELECTION LAW 2010 | 2D
manner influence the results of the elections.
SECTION 5. Request for authority of the Commission to suspend an
elective provincial, citv, municipal or barangav officer applying the
Anti-Graft and Corrupt Practices Act: Where and How to file.
Requests for authority to suspend an elective provincial, city, municipal or
barangay officer shall be submitted to the Law Department of the Commission,
supported by a copy of a formal complaint executed under oath and containing
the specific charges therefor.
SECTION 6. Procedure on the reauests for authority of the Commission.
A. The Law Department shall submit all requests received by it, together with
its recommendation, to the Commission for approval or disapproval.
B.
The Regional Election Director shall approve or disapprove all requests
received by him and submit a report on the requests acted upon by him to
the Law Department, within seventy-two (72) hours from his action thereon,
by the fastest means of communication. Provided that, all actions of the
Regional Election Directors granting the requests for exemptions from the
coverage of the ban herein involved are subject to review by the
Commission and shall remain valid and effective, unless otherwise rescinded
or nullified by the Commission.
With the Regional Election Director Requests for transfer or detail involving City/Municipal Treasurers and
Assistant Superintendents, irrespective of their official stations and
government employees with official stations in the field offices including
the National Capital Region shall be filed with the corresponding offices
of the Regional Election Directors where the employee/s sought to be
transferred or detailed is stationed.
SECTION 7. When reQuest for authoritv is not necessary.
Renewal of appointments of temporary, casual, substitute and contractual
personnel are not covered by this prohibition and will no longer need prior
authority of the Commission.
SECTION 3. Request for authority of the Commission to appoint or hire
new emplovees; Where and How to file.
A. Requests for authority to appoint or hire new employees shall be in writing
stating all the necessary data and reasons for the same.
However, the appointing authority shall furnish the Commission, through its
Regional Offices for field positions, and through the Law Department for main
office positions, a complete list of employees whose appointments were
renewed, indicating their position, item number, salary grade and station.
B.
SECTION 8. Urgent need to appoint new employees
Where there is urgent need to appoint or hire new employees and such
employee has already been appointed or hired without prior authority of the
Commission, the requesting office/agency shall notify the Commission in
writing, within three (3) days from the date of the appointment or hiring,
stating therein the (1) exact date when the position sought to be filled became
vacant, (2) the cause of vacancy, (3) the reason/s for said appointment or
hiring and (4) all the necessary data or information regarding the same.
Said request shall be filed with:
1. The Law Department –
Requests for authority to appoint or hire new employees in the central or
main offices of national government agencies and government-owned
and controlled corporations
2.
With the Regional Election Director –
Similar requests shall be submitted to the Office of the Regional Election
Director of the region where the vacancy exists.
SECTION 4. Request for authoritv of the Commission to create and fill
new positions: Where and How to file.
A. Requests for authority to create and fill new positions shall be submitted in
writing to the Law Department of the Commission.
B.
The Commission shall not grant the authority unless it is satisfied that the
position to be filled is essential to the proper functioning of the office or
agency concerned and that the filling up of such position shall not in any
Notification shall be made through the respective offices of the Regional Election
Directors in case of field positions, or through the Law Department in case of
central or main office positions.
The appointment or hiring of new employees shall be valid, unless the same is
found by the Commission: (1) to have been made to influence in any manner
the results of the election; (2) to have been issued without the required notice;
or (3) that there is no urgent need for the appointment.
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The need to fill up a vacant position by a new employee may be considered
"urgent" if the position to be filled is essential to the proper functioning of the
office or agency concerned and that the same has been vacated either by
death, retirement, resignation, promotion or transfer of the regular incumbent;
provided, that the appointment is issued within sixty (60) days from occurrence
of the vacancy, and that the same cannot be filled by promotion or transfer of
insiders within the same period; and provided further, that the position shall not
be filled in any manner that may influence the election.
The Education and Information Department shall cause the immediate
publication of this resolution in two (2) daily newspaper of general circulation,
give widest dissemination as possible, and furnish copies thereof to all
concerned.
Appointment to a position which has been vacant for more than sixty (60) days
shall not be considered urgent and must, therefore, require prior written
authority from the Commission or the Regional Election Directors concerned.
The Commission on Elections, by virtue of the powers conferred upon it by the
Constitution, the Omnibus Election Code, Republic Act No. 7166, and other
election laws, RESOLVED, as it hereby RESOLVES, to promulgate the following
guidelines in placing any political division, subdivision, unit or area under
COMELEC CONTROL:
SECTION 9.Total ban on promotion, salarv increases. grant of
privileges.
Promotion or increase of salary, giving of remuneration or privilege to any
government official or employee including those in government-owned and
controlled corporations, shall be strictly prohibited.
COMELEC Resolution No. 8734
In the matter of placing some areas in the country under control in
connection with the May 10, 2010 National and Local Elections
Section I . Grounds for Comelec Control. - The Commission may place
under its immediate and direct control and supervision, any political division,
subdivision, unit or area affected by 'serious armed threats".
"Promotion" as used in this provision shall mean the advancement of an
employee from one position to another with an increase in duties and
responsibilities as authorized by law, and usually accompanied by increase in
salary. Promotion may be from one department or agency to another or from
one organizational unit to another within the same department agency.
The term 'serious armed threats" shall refer to the presence of paramilitary
forces, private armies or identifiable armed bands widely perceived to have
committed terrorism, fraud or other election irregularities and threaten or tend
to disrupt the holding of free, peaceful, honest, orderly and credible elections in
any political division, subdivision, unit or area.
SECTION 10. Iniunction.
The Civil Service Commission (CSC), including all its field offices is hereby
enjoined not to approve the appointment of new employees where no prior
written approval of the Commission or its regional offices is presented by the
appointing authority concerned or proof that the required notice within the 3day reglementary period as provided in Section 3 hereof has been complied
with.
Sec. 2. Powers and functions of the Commission. - The authority shall be
exercised by the Commission En banc as thecircumstances so warrant. In
furtherance thereof, the Commission shall:
The Department of Budget and Management (DBM) and the Commission on
Audit (COA), including al their filed offices, shall not release or authorize the
release of any appropriation, or pass in audit, payments or expenditures of
public funds that may be directly used in violation of the foregoing prohibitions.
All field offices of the CSC are directed to submit immediately to the
Commission a written report on any violation of said provisions of the Omnibus
Election Code.
SECTION 11. Penaltv.
Any violation of the provisions of this Resolution shall constitute an election
offense and shall be punishable by imprisonment of not less than one (1) year
but not more than six (6) years, among other penalties provided by law.
This resolution shall take effect on the seventh day after its publication in two
(2) daily newspapers of general circulation in the Philippines.
SECTION 13. Dissemination.
a. Take immediate and direct control and supervision over all national and local
officials and employees required by law to perform duties and/or comply with
certain prohibitions relative to the conduct of the elections in the political
division, subdivision, area or unit concerned; and
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 political division, subdivision, unit or area concerned.
For immediate and effective control of the political division, subdivision, unit or
area concerned, the Commission shall exercise such authority where COMELEC
control has been imposed.
Sec. 3.Special Task Force. - To ensure the conduct of free, peaceful, orderly,
honest and credible elections in each political subdivision, unit or area placed
under COMELEC control, a Special Task Force shall be created. It shall be
composed of a Commissioner designated by the Commission as Task Force
Head, and as members, the Regional Election Director concerned, the highestranking official of the Philippine National Police (PNP) and the highest-ranking
officer of the Armed Forces of the Philippines (AFP) assigned in the area.
At the discretion of the Head of the Task Force or whenever required by the
exigency, additional members who must be. lawyers of the Commission may be
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ELECTION LAW 2010 | 2D
appointed to the Special Task Force.
Commission En banc.
Sec. 4. Powers and Duties of the Special Task Force. - The Special Task
Force shall have the following powers and duties:
Sec. 5. Support of the PNP and AFP Chiefs. - The PNP and the AFP are
hereby directed to immediately provide personnel, equipment, vehicles and
other transportation facilities as the Special Task Force may require. J
a. To supervise and control the administrative activities and transactions of local
government units in the localities under the Comelec control and enforce
therein strict compliance with the election bans and prohibitions under Section
261 of the Omnibus Election Code, particularly on, but not limited to, the
disbursement of public funds, the construction of public works, movements of
government personnel and non-intervention of civil service officials and
employees as well as police and military officers and personnel;
b. To oversee the effective and necessary distribution, assignment and
deployment of officers and personnel of the PNP as well as officers and men of
the AFP in the locality concerned, and place under its control their activities
relative to the strict enforcement of the law on the firearms ban, security
personnel of candidates and private citizens, the appointment or use of special
policemen for election purposes and similar prohibitions under the pertinent
provisions of Sec. 261 of the Omnibus Election Code and Sec, 32, Sec. 33 and
Sec. 34 of Republic Act No. 7166;
c. To augment the police force and assign additional military troops whenever
necessary to quell any possible outbreak of violence and maintain peace and
order in the locality concerned;
d. When necessary, to substitute a whole unit of the police force assigned in the
locality concerned with another police unit or with an adequate unit of the
Armed Forces of the Philippines;
e. To relieve any police or military officer or personnel who may be found
unsuitable for continuance in his present assignment in the locality concerned,
reassign or confine to quarters any such member of the police of military unit;
f. To revoke all exemptions heretofore issued under the firearms ban to
candidates and their bodyguards, and cancel all permits to carry firearms
outside residence granted to residents of the political division, subdivision, unit
or area concerned, as peace and order conditions in the locality demand;
g. To act as law enforcement arm of the Commission in effecting and
implementing its specific orders, rulings, resolutions and decisions;
h.To adopt appropriate measures to safeguard and ensure the holding of free,
peaceful, orderly, honest and credible elections in the political division,
subdivision, unit or area under Comelec control; and
i. To submit periodic situation reports to the Commission through the most
expeditious means.
Except when prior approval or authority of the Commission En banc is required,
the Special Task Force decisions and orders in connection herewith, shall be
final and immediately executory, unless modified, reversed or revoked by the
Sec. 6. Duration of Comelec Control. - When a political division, subdivision,
unit or area is placed under COMELEC control, such shall continue to be in full
force and in effect until the end of the election period, unless sooner lifted by
the Commission.
Sec. 7 . Effectivity. - This Resolution shall take effect on the seventh day after
its publication in two (2) daily newspapers of general circulation in the
Philippines.
Sec. 8. Dissemination. - The Education and Information Department shall
cause the publication of this Resolution in two (2) daily newspapers of general
circulation, and give this widest dissemination.
CASES
1. ANTONIO v COMELEC
FACTS
In the 1969 National Elections, Rufino Antonio was proclaimed as Congressman
for Batanes. Jorge Abad and Renee Agudo, his contenders, filed independent
petitions with COMELEC, contesting such proclamation on the ground that
terrorism was practiced by armed men brought to Batanes by Antonio, who
destroyed all communication facilities and blocked airport landings. These
armed men allegedly attacked the precincts, driven away the voters, filled the
unused ballots with Antonio’s name, prepared the election returns without
counting the votes, and intimidated the boards of inspectors of the precincts to
sign these at gunpoint.
Antonio, on the other hand, answered these petitions and pleaded regularity
and freedom of the election held and challenged COMELEC’s jurisdiction to
determine questions involving election returns regarding members of the House
of Representatives and its power to annul the proclamation or suspend its
effects and to annul the election or declare a failure to elect.
ISSUE
Whether COMELEC has jurisdiction to determine questions involving election
returns regarding members of the House of Representatives and its power to
annul the proclamation or suspend its effects and to annul the election or
declare a failure to elect.
HELD
YES. If the COMELEC, in the exercise of its duties under Sec. 3 of the Revised
Election Code, can require the Board of Canvassers to consider only genuine
and authentic, not falsified, returns, then it can logically require such boards to
exclude from the canvass any returns that were actually the product of
coercion, even if they be clean in their face.
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The power of the COMELEC to set aside returns that are falsified or are not
authentic and genuine and to order the same excluded from a canvass is
distinct and separate from the authority inherent in the Electoral Tribunals of
the Senate or the House of Representatives, in the course of an electoral
protest, to set aside such returns whenever the statements of votes cast
contained herein do not tally with the valid votes enclosed within the ballot
boxes themselves. No conflict of jurisdiction can arise since the powers of the
COMELEC and the Electoral Tribunals are exercised on different occasions and
for different purposes. COMELEC is not concerned with the veracity of the
returns, but with the genuineness and regularity. It is self-evident that a return
accomplished by the election inspectors under threats and coercion by armed
men is in law no return at all. As a corollary, COMELEC can set aside an
improper canvass, as well as the resulting proclamation.
Moreover, failure of the Board of Canvassers to investigate and to disregard
patent irregularities authorizes the COMELEC to annul the canvass and resulting
proclamation.
2.
BILIWANG v COMELEC
FACTS
In the local elections in San Fernando Pampanga, there were 2 candidates
battling for the position of Municipal Mayor: Sanchez of the Nacionalista Party
and Biliwang of the Kilusang Bagong Lipunan Party. The latter was proclaimed
as the winner.
Subsequently, Sanchez filed with the COMELEC a Petition to declare null and
void the local elections due to alleged large scale terrorism. COMELEC initially
denied said Petition; however upon Motion for Reconsideration, the COMELEC
reversed itself and required Biliwang to Answer. COMELEC then declared the
election null and void due to its findings that there is strong and sufficient
evidence to support the charge that in the preparation of election returns, the
teacher members of the Citizens Election Committees (CEC's) were threatened
and coerced into making spurious election returns without regard to the
genuine ballots in the ballot boxes by the police, armed goons and other
persons. COMELEC found that there was failure of election not due to terrorism
BEFORE OR DURING elections, but AFTER elections where in the genuine ballots
were replaced with pre-prepared ballots favouring Biliwang.
This prompted Biliwang to file a Petition for Certiorari in the SC.
ISSUE
1.
2.
Whether COMELEC has the power to annul an entire municipal election
on the ground of post-election terrorism.
Whether COMELEC has authority to call for a special election.
HELD
1. YES. There is no specific provision vesting the COMELEC with authority to
annul an election. However, there is no doubt as to COMELEC's extensive
powers. The 1978 Election Code (PD No. 1296) accords it exclusive charge of
the enforcement and administration of all laws relative to the conduct of
ELECTION LAW 2010 | 2D
elections for the purpose of insuring free, orderly and honest elections (Sec.
185). There were no election returns worthy of faith and credit and from which
could be gauged a fair and true expression of the popular will. Its action of
rejecting all election returns and annulling the local elections consistent with its
constitutionally ordained power of administration and enforcement of election
laws and its main objective to insure free, orderly and honest elections.
2. NO. Section 5, Batas Pambansa Blg. 52 states that the Commission is
empowered to call for the "holding or continuation of the election as soon as
practicable" where: (1) 'the holding of a free, orderly and honest election should
become impossible; (2) 'the election for a local office fails to take place on the
date fixed by law; (3) 'the erection for a local office ... on the date fixed by law
is suspended; and (4) 'such election results in a failure to elect ...’ . The voters
in San Fernando cast their votes voluntarily before the acts of terrorism. There
was a failure to gauge the genuine will of the electorate, rather than a failure of
election. Ballots were duly cast, but because of the above massive and
systematic operations to frustrate the electorate's will, their true and authentic
vote could not be ascertained.
3.
RAMAS v COMELEC
FACTS
Petitioners and private respondents were competing candidates for the
Municipal positions in Guimpos Zamboanga del Sur. Petitioners were declared
winners for Mayor, Vice Mayor, and the 5th to 8th Members of the Sangguniang
Bayan (SB). Private respondents Famor and Cajeta (the losing candidates for
Mayor and Vice Mayor), along with their running mates who placed 9th-12th in
the SB positions filed election protests. TC found declared some of the private
respondents as winners in the positions they ran for. They moved for execution
pending which prompted petitioners to oppose said motion, however, the TC
granted the same.
Petitioners assailed the TC decision to grant execution pending appeal to the
COMELEC. COMELEC found for private respondents and declared them as
presumptive winners during the pendency of an appeal, ratiocinating that it
already cost the respondents and the people of Guimpos one year for the court
to resolve the case. Depriving them further will only resurrect the evils that the
courts seek to contain. In effect COMELEC, in granting execution pending
appeal, considered as good reasons the following: (1) the term of office was
near expiration, and (2) that the protest was already pending for a year.
This prompted petitioners to file a Petition in the SC.
ISSUE
Whether COMELEC acted with grave abuse of discretion when it granted
execution of judgement pending appeal.
HELD
NO. Omnibus Election Code empowers the COMELEC to promulgate rules and
regulations implementing the provisions of the Code or other laws which it is
required to enforce and administer. Accordingly, the COMELEC promulgated the
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COMELEC Rules of Procedure. Section 1 of Rule 41 thereof expressly provides
that "[i]n the absence of any applicable provision in [said] Rules, the pertinent
provisions of the Rules of Court in the Philippines shall be applicable by analogy
or in a suppletory character and effect."
This Court has explicitly recognized and given approval to execution of
judgments pending appeal in election cases 26 filed under existing election
laws. In those cases, the immediate execution was made in accordance with
Section 2 of Rule 39 of the Rules of Court which states that the “..Court may, in
its discretion, order execution to issue even before the expiration of the time to
appeal, upon good reasons to be stated in a special order...”
In the instant case, the trial court relied on the following as "good reasons" for
its grant of execution pending appeal: (1) public interest, (2) near expiration of
the term of the office involved, and (3) pendency of the election protest for one
year. The trial court cannot, therefore, be said to have acted with grave abuse
of discretion. Hence, the COMELEC acted correctly when it denied petitioners’
appeal.
4.
PIMENTEL v COMELEC
FACTS
As National Canvassing Board for the May 1998 elections, COMELEC motu
propio ordered an investigation based on its finding of discrepancy between the
Provincial Certificate of Canvas for Ilocos Norte and its supporting Statement of
Votes concerning the votes for senatorial candidates Juan Ponce Enrile, Franklin
Drilon and Ramon Mitra. Petitioner, himself a senatorial candidate, filed his own
complaint with COMELEC against private respondents of the Provincial Board of
Canvassers of Ilocos Norte, members of the support staff of the former, and
one elementary school principal of DECS. He charged them with violation of
Sec. 27 of R.A. 6646, or the Electoral Reforms Law, which provides that “any
member of the board of election inspectors or board of canvassers who
tampers, increases or decreases the votes received by a candidate, or refuses,
after proper verification and hearing, to credit the correct votes or deduct such
tampered votes” shall be guilty of an election offense. He alleged in particular
that a comparison of said records/documents show a 30,000 increase in the
votes of both Enrile and Drilon, while Mitra received a 20,000 mark-up.
In May 1996, Minute Resolution No. 96-1497 was issued by COMELEC, resolving
to file criminal and administrative charges. Respondents filed a MR, to which
petitioner filed his comment. However, in May August 1996, assailed Minute
Resolution No. 96-2333 was issued, where COMELEC resolved to dismiss the
complaint “for lack of sufficient evidence to establish probable cause” and in the
administrative case, to merely reprimand respondents. Hence, this petition for
certiorari.
ISSUE
Whether the COMELEC committed grave abuse of discretion in reversing its
earlier resolution by dismissing the complaint on the ground of lack of sufficient
evidence to establish probable cause.
ELECTION LAW 2010 | 2D
HELD
YES. As regards COMELEC’s view that that there’s no probable cause because
there’s no evidence to show that petitioner prior to the filing of the complaint
called the attention of respondents to what were claimed as tampered votes
and that the latter were given the chance to verify and be heard on the claim
but refused to rectify when asked, this is untenable. Examining the pertinent
provision will show that the word “or” used – as is consistent with a rule in
statutory construction – signified disassociation and independence. Also, being a
criminal and penal statute, RA 6646 should be given strict construction. A
reading of the entire context of Sec. 27 proves that a non-disjunctive meaning
to the word “or” is not warranted. Thus, under the provision, two acts, not one,
are penalized: first, the tampering, increasing or decreasing of votes received;
and second, the refusal, after proper verification and hearing, to credit the
correct votes or deduct such tampered votes. It is with grave abuse of
discretion that COMELEC gave said provision the interpretation it did.
The merit of respondents’ defenses (honest mistake, simple error, good faith
and mere performance of ministerial duties) are best ventilated in the trial
proper than at the preliminary investigation. A preliminary investigation is
essentially inquisitorial and is only the means to discover who may be charged
with a crime, its function being merely to determine probable cause.
To take COMELEC’s view that there’s no election offense unless the concerned
officials’ attention is first called and unless they were first given the opportunity
to correct an illegal act is to tolerate, if not abet, massive tampering of votes by
giving the wrongdoer a built-in and sure-fire defense. This is illogical and
retrogressive and violates COMELEC’s mandate to protect the sanctity of the
ballot.
There’s grave abuse of discretion where COMELEC dismissed the complaint on
the ground of lack of probable cause curiously after it had previously found the
same on the basis of the same evidence.
5.
MATIBAG v BENIPAYO
FACTS
February 2, 1999The COMELEC en banc appointed petitioner Ma. J. Angelina
Matibag as “Acting Director IV” of the Education and Information Department
(EID).
February 15, 2000Then Chairperson Harriet O. Demetriou renewed the
appointment of Matibag as Director IV of the EID in a “temporary capacity.”
February 15, 2001 Commissioner Rufino S.B. Javier renewed again the
appointment of petitioner to the same position in “temporary capacity.”
March 22, 2001 President Arroyo appointed, ad interim, Alfredo L. Benipayo
as COMELEC Chairman, Resurreccion Z. Borra and Florentino A. Tuason, Jr. as
COMELEC Comissioners, each for a term of 7 years and expiring on February 2,
2008. Benipayo took his oath of office and assumed his position as Chairman,
while Borra and Tuason likewise took their oaths and assumed their positions as
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Commissioners. The Office of the President submitted to the Commission on
Appointments the ad interim appointments of Benipayo, Borra and Tuason for
confirmation. However, the Commission on Appointments did not act on said
appointments.
April 11, 2001 Benipayo, in his capacity as COMELEC Chairman, issued a
Memorandum addressed to petitioner Matibag informing her that she would be
reassigned to the Law Department. Velma J. Cinco, Director III of EID, was also
informed that she would take over as officer-in-charge of the EID. EID
Comissioner-in-charge Sadain objected to the reassignment and questioned
Benipayo’s failure to consult with him.
April 16, 2001 Petitioner requested Benipayo toreconsider her relief as
Director IV of EID and her reassignment. Petitioner cited Civil Service Comission
Memorandum Circular No. 7 reminding heads of government of the prohibition
to transferring employees during the election period (Jan 2 to 13 2001)
April 18, 2001 Benipayo denied her request citing COMELEC Resolution
3300, which states that his acts were permitted.
April 23, 2001 Petitioner filed an administrative and criminal case with the
Law Department, alleging that her reassignment was in violation of several
pertinent laws and rules/regulations.
June 1, 2001 President Arroyo renewed the ad interim appointments of
Benipayo, Borra and Tuason to the same positions and for the same term of
seven years expiring on February 2, 2008.
June 5, 2001 The Office of the President again transmitted their
appointments to the Commission on Appointments for confirmation. Congress
adjourned before the Commission could act on their appointments.
June 8, 2001 President Arroyo renewed the ad interim appointments for a 3rd
time and submitted appointments to the Commission for confirmation.
Appointees once again took their oaths.
September 6, 2001 President Arroyo renewed the ad interi appointments for
the 4th time for a term of 7 years expiring on February 2, 2008. Oaths were
again taken.
During the pendency of Matibag’s claim before the Law Dept., she filed an
instant petition to the court questioning the constitutionality of the ad interim
appointments and right to remain in office of Benipayo, Borra and Tuason.
ISSUE(S)
1) W/N the assumption of office by Benipayo, Borra and Tuason on the basis of
ad interim appointments issued by the President amounts to a temporary
appointment prohibited by Section 1(2), Article IX-C of the Constitution.
2) Assuming that the first ad interim appointments and assumption of office by
Benipayo, Borra and Tuason are legal: W/N the renewal of their ad interim
ELECTION LAW 2010 | 2D
appointments and subsequent assumption to office to the same positions violate
the prohibition on reappointment under Section 1(2), Article IX-C of the
Constitution.
Section 1(2) Article IX-C provides:
“The Chairman and the Commissioners shall be appointed by the President with
the consent of the Commission on Appointments for a term of 7 years without
reappointment …In no case shall any ember be appointed or designated in a
temporary or acting apacity.”
HELD
1) NO. Petitioner argues that an ad interim appointment is temporary in
character and clearly prohibited by Article IX-C. Petitioner also argues that ad
interim appointees cannot assume office until his/her appointment is confirmed
by the Commission of Appointments for only then does the appointment
become permanent. Petitioner’s argument is without merit.
An ad interim appointment is a PERMANENT appointment because it takes effect
immediately and can no longer be withdrawn by the President. The Constitution
itself makes an ad interim appointment permanent in character by making it
effective until disapproved by the Commission on Appointments or until the
next adjournment of Congress.
Section 16, Article VII provides:
“The president shall have the power to make appointments during the recess of
the Congress, whether voluntary or compulsory, but such appointments shall be
effective only until DISAPPROVAL by the Commission on Appointments or until
the next adjournment of Congress.”
Matibag cited Black’s Law Dictionary which defines the term AD INTERIM to
mean “in the meantime” or “for the time being.” Petitioner therefore argues
that an ad interim appointment is undoubtedly temporary in nature. Petitioner
mistakenly understands the interpretation and makes a literal translation. The
term is not descriptive of the nature of the appointment. It is used to denote
the manner in which said appointments were made, that is, done by the
President in the meantime, while those with the power of appointment are
unable to act (Pamantasan ng Lungdod ng Maynila s. Intermediate Appellate
Court). An ad interim appointment is thus one made by the President IN THE
MEANTIME that Congress is in recess.
An ad interim appointment can only be terminated by:
a) DISAPPROVAL by the Commission on Appointments
b) ADJOURNMENT of Congress without the Commission making
confirmation
Unlike the President’s ad interim appointments, a designation in temporary
character may be revoked anytime at the pleasure of the appointing power.
This is the type of appointment the Constitution prohibits fro making to the 3
independent constitutional commissions (COMELEC, Civil Service Commission
and the Commission on Audit).
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Ad interim appointments reinstated from the 1935 Constitution are necessary
for the avoidance of interruption in the vital government services that otherwise
would result from prolonged vacancies in government offices, including the 3
constitutional commissions.
In 2001, the Congress adjourned from January 9 to June 3 2001. There was no
time for the confirmation of Benipayo, Borra and Tuason on March 22, 2001
prior to the ay 14 election. Failure of the president to extend their appointments
would have left a vacancy in the COMELEC, with only one functioning division
and therefore preventing quorum. This could have also increased the possibility
of disruption during the election. The President exercised her constitutional
power to avoid this evil by making the said ad interim appointments.
2) NO. Petitioner contends that once an ad interim appointee is by-passed by
the Commission on Appointments, his ad interim appointment can no longer be
renewed because this violates Article IX-C of the Constitution prohibiting
reappointments. A renewal of appointment is undeniably prohibit if it is
disapproved by the Commission on Appointments. The ad interim appointments
in the case at bar, however, is a different matter as they were by-passed due to
lack of time or failure of the Commission to organize. A final decision had not
been made regarding these appointments. The President is free to renew such
appointments that are by-passed.
4 situations where Section 1(2), Article IX-C applies and reappointment is no
longer allowed:
1) An ad interim appointee, upon confirmation of the Commission, has already
served for 7 years. He can no longer be appointed after that.
2) An appointee, after confirmation, serves a part of his term but resigns prior
to the conclusion of his 7-year contract.
3) An appointee serves the unexpired term of someone who died or resigned.
4) Appointee has previously served a term of less than 7 years. He cannot take
over a vacancy.
The ad interim appointments and renewal of appointments of Benipayo, Borra
and Tuason do not violate the prohibition on reappointments because there
were no previous confirmations by the Commission on Appointments to begin
with. A reappointment presupposes a previous confirmed appointment. There is
no brech of the 7 year limit either as each renewal of appointment set a fixed
expiry of term which was February 2, 2008.
6.
ANG BAGONG BAYANI-OFW v COMELEC
FACTS
Ang Bagong Bayani-OFW Labor Party and Bayan Muna both filed separately
before the Comelec to disqualify certain party-list from running in the 2001
elections. Comelec ignored their petitions, which forced the petitioners to
proceed to the SC via certiorari as against the Comelec. The SC consolidated
the cases before it.
ISSUES
1. Whether or not Rule 65 is the proper remedy
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2. Whether political parties may run in the party-list system
3. Whether party-list system is exclusive to marginalized and underrepresented
sectors
4. Whether Comelec committed grave abuse of discretion in promulgating
Omnibus Resolution 3785
HELD
1. YES, since it was the Comelec who considered that these parties are
qualified to be run for party-list under the upcoming election, this can be
questioned via certiorari. The Comelec also has its rules of procedure that
removes the remedy of a motion for reconsideration to petitioners.
2. As long as it is open to the system. They are considered to be the minority in
their districts, and this gives them a chance to have a voice in the congress,
even if they are just part of the minority in their sector.
3. YES, the party-list system gives way for marginalized and underrepresented
sectors and organization to have become lawmakers since they need a voice in
the congress in order to address their needs. It cannot be used as a tool by
non-marginalized groups in order to have more seats in congress. Therefore, it
is exclusive for marginalized and underrepresented groups.
4. YES, the Comelec allowed 154 parties who are not really thoroughly
screened by them. It had considered 6 major political parties (LAKAS, LP, NP,
etc.) to run under the party-list system, and even also included a government
agency (MAD) as well as religious groups in the list of qualified sectors. The
constitution and law cannot be ignored, and Comelec must follow what is
prescribed by it.
7.
BAYTAN v COMELEC
FACTS
Petitioners were on their way to register for the elections when the Barangay
Captain Ignacio led them to register at Barangay 18. After registration, they
wondered why the registrants in that Barangay were unfamiliar. They then
realized that their residence was under the jurisdiction of Barangay 28, and
registered there. They sent a petition to the Comelec to cancel their previous
registration. However, Provincial Election Supervisor Ravanzo recommended
that the Comelec should file a double registration case against petitioners. The
Comelec in a minute resolution affirmed the recommendation. Petitioners
moved to reconsider which the Comelec en banc denied.
ISSUES
1. Whether or not Comelec committed grave abuse of discretion in
recommending the prosecution for double registration.
2. Whether recommendation may be done en banc without going through a
division
HELD
1. NO, during a preliminary investigation, all that is required is probable cause
to determine whether there is sufficient ground to file an information against
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the accused. The facts show that the petitioners had registered twice and that
they registered using different addresses. There are also inconsistencies with
their testimonies about the said registrations. The Comelec has the power to
recommend the prosecution of the petitioners upon probable cause
2. YES, the constitutional requirement under Article IX-C of the 1987
Constitution says that it must first go through a division, before reviewing en
banc in the exercise of judicial functions. Since a preliminary investigation is in
the exercise of their administrative functions, there is no need to follow the
constitution provision.
III. KINDS OF ELECTIONS
A.
General and Special Elections
1.
REGULAR: one provided by law for the election of officers either nationwide or in certain subdivisions thereof, after the expiration of the full term of
the former officers
2.
SPECIAL: one held to fill a vacancy in office before the expiration of the full
term for which the incumbent was elected
B.
National and Local Elections
C.
Initiative and Referendum
1.
INITIATIVE: the power of the people to propose amendments to the
Constitution or to propose and enact legislations through an election called
for the purpose
2.
REFERENDUM: the power of the electorate to approve or reject a
legislation through an election called for the purpose
D.
Recall: a procedure by which voters can remove an elected official
from office through a direct vote (plebiscite), initiated when sufficient
voters sign a petition.
E.
Plebiscite: the electoral process by which an initiative on the
Constitution is approved or rejected by the people.
The Initiative and Referendum Act
RA 6735
Sec. 3. Definition of Terms. — For purposes of this Act, the following terms
shall mean:
(a) "Initiative" is the power of the people to propose amendments to the
Constitution or to propose and enact legislations through an election
called for the purpose.
There are three (3) systems of initiative, namely:

Initiative on the Constitution, which refers to a petition proposing
amendments to the Constitution;
ELECTION LAW 2010 | 2D


Initiative on statutes, which refers to a petition proposing to enact a
national legislation; and
Initiative on local legislation, which refers to a petition proposing to
enact a regional, provincial, city, municipal, or barangay law,
resolution or ordinance.
(b) "Indirect initiative" is exercise of initiative by the people through a
proposition sent to Congress or the local legislative body for action.
(c) "Referendum" is the power of the electorate to approve or reject a
legislation through an election called for the purpose. It may be of two
classes, namely:

Referendum on statutes, which refers to a petition to
approve or reject an act or law, or part thereof, passed by
Congress; and

Referendum on local law, which refers to a petition to
approve or reject a law, resolution or ordinance enacted by
regional assemblies and local legislative bodies.
(d) "Proposition" is the measure proposed by the voters.
(e) "Plebiscite" is the electoral process by which an initiative on the
Constitution is approved or rejected by the people.
(f) "Petition" is the written instrument containing the proposition and the
required number of signatories. It shall be in a form to be determined
by and submitted to the Commission on Elections, hereinafter referred
to as the Commission.
(g) "Local government units" refers to provinces, cities, municipalities
and barangays.
(h) "Local legislative bodies" refers to the Sangguniang Panlalawigan,
Sangguniang Panlungsod, Sangguniang Bayan, and Sangguniang
Nayon.
(i)
"Local executives" refers to the Provincial Governors, City or
Municipal Mayors and Punong Barangay, as the case may be.
The Local Government Code of 1991
RA 7160
CHAPTER V
Recall
Section 70. Initiation of the Recall Process. (a) Recall may be initiated by a preparatory recall assembly or by the registered
voters of the local government unit to which the local elective official subject to
such recall belongs.
(b) There shall be a preparatory recall assembly in every province, city, district,
and municipality which shall be composed of the following:
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1.
2.
3.
4.
Provincial level. - All mayors, vice-mayors, and sanggunian members
of the municipalities and component cities;
City level. - All punong barangay and sanggunian barangay members
in the city;
Legislative District level. - In case where sangguniang panlalawigan
members are elected by district, all elective municipal officials in the
district; and in cases where sangguniang panlungsod members are
elected by district, all elective barangay officials in the district; and
Municipal level. - All punong barangay and sangguniang barangay
members in the municipality.
(c) A majority of all the preparatory recall assembly members may convene in
session in a public place and initiate a recall proceedings against any elective
official in the local government unit concerned. Recall of provincial, city, or
municipal officials shall be validly initiated through a resolution adopted by a
majority of all the members of the preparatory recall assembly concerned
during its session called for the purpose.
(d) Recall of any elective provincial, city, municipal, or barangay official may
also be validly initiated upon petition of at least twenty-five percent (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.
1. A written petition for recall duly signed before the election registrar or
his representative, and in the presence of a representative of the
petitioner and a representative of the official sought to be recalled and,
and in a public place in the province, city, municipality, or barangay, as
the case may be, shall be filed with the COMELEC through its office in
the local government unit concerned. The COMELEC or its duly
authorized representative shall cause the publication of the petition in
a public and conspicuous place for a period of not less than ten (10)
days nor more than twenty (20) days, for the purpose of verifying the
authenticity and genuineness of the petition and the required
percentage of voters.
2. Upon the lapse of the aforesaid period, the COMELEC or its duly
authorized representative shall announce the acceptance of candidates
to the position and thereafter prepare the list of candidates which shall
include the name of the official sought to be recalled.
Section 71. Election on Recall. - Upon the filing of a valid resolution or petition
for recall with the appropriate local office of the COMELEC, the Commission or
its duly authorized representative shall set the date of the election on recall,
which shall not be later than thirty (30) days after the filing of the resolution or
petition for recall in the case of the barangay, city, or municipal officials. and
forty-five (45) days in the case of provincial officials. The official or officials
sought to be recalled shall automatically be considered as duly registered
candidate or candidates to the pertinent positions and, like other candidates,
shall be entitled to be voted upon.
ELECTION LAW 2010 | 2D
CHAPTER II
Local Initiative and Referendum
Section 120. Local Initiative Defined. - Local initiative is the legal process
whereby the registered voters of a local government unit may directly propose,
enact, or amend any ordinance.
Section 122. Procedure in Local Initiative. (a) Not less than one thousand (1,000) registered voters in case of provinces
and cities, one hundred (100) in case of municipalities, and fifty (50) in case of
barangays, may file a petition with the sanggunian concerned proposing the
adoption, enactment, repeal, or amendment of an ordinance.
(b) If no favorable action thereon is taken by the sanggunian concerned within
thirty (30) days from its presentation, the proponents, through their duly
authorized and registered representatives, may invoke their power of initiative,
giving notice thereof to the sanggunian concerned.
(c) The proposition shall be numbered serially starting from Roman numeral I.
The COMELEC or its designated representative shall extend assistance in the
formulation of the proposition.
(d) Two (2) or more propositions may be submitted in an initiative.
(e) Proponents shall have ninety (90) days in case of provinces and cities, sixty
(60) days in case of municipalities, and thirty (30) days in case of barangays,
from notice mentioned in subsection (b) hereof to collect the required number
of signatures.
(f) The petition shall be signed before the election registrar. or his designated
representatives, in the presence of a representative of the proponent, and a
representative of the sanggunian concerned in a public place in the local
government unit, as the case may be. Stations for collecting signatures may be
established in as many places as may be warranted.
(g) Upon the lapse of the period herein provided, the COMELEC, through its
office in the local government unit concerned, shall certify as to whether or not
the required number of signatures has been obtained. Failure to obtain the
required number defeats the proposition.
(h) If the required number of signatures is obtained, the COMELEC shall then
set a date for the initiative during which the proposition shall be submitted to
the registered voters in the local government unit concerned for their approval
within sixty (60) days from the date of certification by the COMELEC, as
provided in subsection (g) hereof, in case of provinces and cities, forty-five (45)
days in case of municipalities, and thirty (30) days in case of barangays. The
initiative shall then be held on the date set, after which the results thereof shall
be certified and proclaimed by the COMELEC.
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CASES
1. ANGOBUNG v COMELEC
FACTS
Petitioner Angobung won as the duly elected mayor of Tumauini Isabela in the
1995 local elections. Sometime in 1996, private respondent, the losing
candidate, filed with the Local Election Registrar a Petition for Recall which was
given due course. The petition contained only the lone signature of private
respondent. The Comelec en banc issued resolution 96-2591 approving said
petition and setting the date for the further signing of said petition by other
registered voters of at least 25% of the registered voters of Tumauini Isabela.
In case the 25% will be attained a recall election will be held.
Petitioner assailed the resolution.
ISSUES
1. Whether the resolution approving the petition is valid although only
one person signed it which is contrary to the 25% minimum
requirement as to the number of signature which should support the
petition.
2. Whether the resolution scheduling the recall election (1996) within a
year preceding from 1997 Barangay election is time barred.
HELD
1. NO. The resolution is invalid for lack of the 25% minimum requirement.
Section 69 (d) of the Local Government Code of 1991 expressly provides that
“recall of any elective xxx municipal xxx official may also be validly 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”. The phrase requiring at least 25% points
out hat the petition must be filed not just by one person but at least 25% of the
registered voters. The initiatory recall petition may not yet contain all of the
signatures but must at least contain the names of at least 25% of the
registered voters. In this case, the petition contains only one name and that of
the private respondent.
2. NO. In Paras v. Comelec, it was held that for the provision of sec 74 of the
local government code of 1991 to apply, which provides that “no recall election
shall take place within one year immediately preceding a regular election, the
regular local election must pertain to the one actually contested and filed by the
electorate. In this case, the contested position was the office of the mayor and
not of the barangay posts.
2.
SOCRATES v COMELEC
FACTS
The case is a consolidation of petitions stemming from the same set of facts.
Socrates, petitioner, was the duly elected mayor of Puerto Princesa Palawan in
the 2001 local elections. Sometime in 2002, 312 out of the 528 members of the
incumbent barangay officials of Puerto Princesa convened into a Preparatory
ELECTION LAW 2010 | 2D
Recall Assembly (PRA) with Hagedorn as the interin chairman. PRA passed a
resolution (recall resolution) which declared its loss of confidence with Mayor
Socrates and requested the COMELEC to schedule a recall election for mayor
within 30 days from receipt of the resolution. The COMELEC gave due course to
the recall resolution and scheduled the recall election on September 7, 2002.
Subsequently, Hagedorn filed his candidacy for mayor in the recall election. This
was met by a number of opposition and the filing of several petition to
disqualify Hagedorn to run. The petition alleged that Hagedorn is disqualified
from running in the mayoralty election because this would serve as his fourth
consecutive term which is barred by the constitutional and statutory
prohibitions. The COMELEC, however, denied the petitions. Hence the instant
recourse to the Supreme Court.
ISSUE
1.
2.
Whether COMELEC gravely abused its discretion in upholding the recall
resolution. (minor issue)
Whether Hagedorn can still run in the recall election.
HELD
1. NO, the contentions of Socrates were the absence of notice to 130 PRA
members and defective service of notice to the PRA members which should
nullify the resolution. COMELEC, however, found out that notices were actually
sent and there were proof of notices. The notices were also posted in
conspicuous places and broadcasted in media. Likewise the City election officer
certified that majority of all PRA members signed the resolution. The Court will
not disturb the findings of COMELEC which is within its competence absent any
patent errors.
2. YES. Hagedorn is qualified to run as mayor in the recall election. Said
election is not the one contemplated in law as the fourth consecutive term
which is prohibited by law. The 3 term limit rule is found in Sec 8 Art. X of the
constitution which provides that no elective official shall serve for more than 3
consecutive terms and voluntary renunciation is not considered as an
interruption of the service for the full term. It is likewise reiterated in Section 43
(b) of RA 7160.
A careful scrutiny of the law provides 2 parts. First, the prohibition of serving in
the same office for more than 3 consecutive terms. Second, Voluntary
renunciation is not considered as an interruption of the service of the full term.
Thus, what is prohibited is serving continuously for more than 3 terms or stated
differently what is prohibited is the immediate reelection. Moreover, it is only
voluntary renunciation which does not interrupt but not involuntary ones
regardless of any length.
In the case at bar, the recall election is not an immediate reelection after his
third consecutive term. The immediate election which is prohibited is the 2001
election and HAgedorn did not seek election in 2001. In the interim of 2001
election and 2002 recall election, Hagedorn was simply a private citizen. This
period clearly is an interruption in the contitnuity of HAgedorn’s service as
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ELECTION LAW 2010 | 2D
mayor. This is considered as the involuntary nterruption which broke the
continuity or consecutive character of HAgedorn’s service as mayor.
2.
In the case of Adormeo vs Comelec and Talaga, it was held that the recall term
does not retroact from the date of his predecessor hence there is still no
continuity.
3.
3.
JAVELLANA v EXECUTIVE SECRETARY
FACTS
Marcos declared the Philippines under martial law on September 21, 1972. Upon
its declaration, Congress was padlocked, and full legislative authority was
vested upon Marcos via rule of decree. Many prominent members of the
opposition, notably Benigno Aquino, Jr. and José W. Diokno, among others, was
arrested and placed in military stockades.
The proceedings of the 1971 Constitutional Convention were still continuing
despite the declaration of martial law. Eventually, on November 29, 1972, the
Convention approved the new constitution. The next day, Marcos issued
Presidential Decree 73, "submitting to the Filipino people for ratification or
rejection the Constitution of the Republic of the Philippines proposed by the
1971 Constitutional Convention, and appropriating funds therefore," as well as
setting the plebiscite for said ratification or rejection of the Proposed
Constitution on January 15, 1973. At this instance, Charito Planas (a staunch
critic and later vice-mayor of Quezon City) filed a case (known as the Plebiscite
Cases, Planas v. COMELEC (1973)) before with the Supreme Court calling the
stop the proposed ratification upon the grounds, among others, that the
Presidential Decree "has no force and effect as law because the calling... of such
plebiscite, the setting of guidelines for the conduct of the same, the prescription
of the ballots to be used and the question to be answered by the voters, and
the appropriation of public funds for the purpose, are, by the Constitution,
lodged exclusively in Congress..." and "there is no proper submission to the
people there being no freedom of speech, press and assembly, and there being
no sufficient time to inform the people of the contents thereof."
On January 15, 1973, while the Plebiscite Cases were being heard in the
Supreme Court, Proclamation 1102, was signed by the President which states
that the 1973 Constitution was supposedly “ratified by an overwhelming
majority of all the votes cast by the members of all the Barangays throughout
the Philippines.
By virtue of the said decree, the Supreme Court dismissed the case for being
moot and academic, without prejudice to the filing of a case questioning the
validity of Proclamation 1102. Thus, the Ratification cases came into being for
the purpose of questioning such Proclamation.
ISSUES
1. Is the issue of the validity of Proclamation No. 1102 a justiciable or
political and therefore a non-justiciable question?
4.
5.
Has the Constitution proposed by the 1071 Constitutional Convention
been ratified validly conformably to the applicable constitutional and
statutory provisions?
Has the aforementioned proposed Constitution been acquiesced in by
the people?
Are the petitioners entitled to relief?
Is the aforementioned proposed Constitution in force?
HELD
1. Six members of the court hold that the issue of the validity of Proclamation
No 1102 presents a justicicable and non political question. Justices Makalintal
and Castro did not vote squarely on this question, but, only inferentially, in their
discussion of the second question. Justice Barredo qualified his vote, stating
that “inasmuch as it is claimed that there has been approval by the people, and,
in the affirmative, the Court may determine from both factual and legal angles
whether or not Article XV of the 1935 Constitution has been complied with.”
Justices Makasiar, Antonio and Esguerra, or three members of the court hold
that the issue is political and “beyond the ambit of judicial inquiry”.
2. Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee, etc or six
members of the court also hold that the Constitution proposed by the 1971
Constitutional Convention was not validly ratified in accordance with Article XV,
section 1 of the 1935 Constitution which provides only one way for ratification
that is, :in an election or plebiscite held in accordance with law and participated
in only by qualified and duly registered voters.” Justice Barredo qualified his
vote, stating that “ as to whether or not the 1973 Constitution, has been
validly ratified pursuant to Article XV, I still maintain that in the light of
traditional concepts regarding the meaning and intent of said Article, the
referendum in the Citizens Assemblies, specially in the manner the votes are
casts, reported and canvassed, falls short of the requirements thereof. In view,
however, of the fact that I have no means of refusing to recognize as a judge
that factually there was voting and that a majority of the votes were for
considering as approved the 1973 Constitution without the necessity of the
usual form of plebiscite followed in past ratifications, I am constrained to hold
that, in the political sense, if not in the orthodox legal sense, the people may be
deemed to have cast their favorable votes in the belief that in doing so they did
the part required of them by Article XV, hence, it may be said that in its political
aspect, which is what counts most, after all, said Article has been substantially
complied with, and in effect, the 1973 Constitutionally ratified”.
Justices MAkasiar, Antonio, Esguerra or three members of the court hold that
under their view there has been in effect substantial compliance with the
constitutional requirements for valid ratification.
3. No majority vote has been reached by the court. Four members of the court,
Barredo, MAkasiar, Antonio, Esguerra hold that the people have already
accepted the 1973 Constitution. Two members of the court, hold that there can
be no free expression, and there has been no expression by the people qualified
to vote all over the Philippines, of their acceptance or repudiation of the
proposed Constitution under Martial Law. Three members expressed their lack
of knowledge or competence to rule on the question. Justices Makalintal and
Castro joined by Teehankee in their statement that under a regime of martial
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law with the free expression of opinions through the usual media restricted they
have no means of knowing to the point of judicial certainty whether the people
have accepted the Constitution.”
4. Six members of the court voted on the strength of the view that the “
effectivity of the said Constitution in the final analysis is the basic and ultimate
question posed by these cases to resolve which considerations other than
judicial and therefore beyond the competence of this court, are relevant and
unavoidable.” Four members of the court voted to deny respondent’s motion to
dismiss and give due course to the petitions.
5. Four members of the court hold that it is in force by virtue of the people’s
acceptance thereof; Four members of the court cast no vote thereon on the
premise stated in their votes on the third question that they could not state
with judicial certainty whether the people have accepted the Constitutional
Convention is not in force.
As a result, there are not enough votes to declare the new Constitution is not in
force. All the aforementioned cases are hereby dismissed. There is no further
obstacle to the new Constitution being considered in force and effect.
4.
DEFENSOR-SANTIAGO v COMELEC
FACTS
This case was initiated due to the actions of one Atty. Jesus S. Delfin who
sought to amend the 1987 Constitution via people’s initiative as provided for in
Sec. 2, Art. XVII of the Constitution, which states that:
“Amendments to the Constitution may likewise be directly proposed by
the people through initiative upon a petition of at least twelve per
centum of the total number of registered voters, of which every
legislative district must be represented by at least three per centum of
the registered voters therein. No amendment under this section shall
be authorized within five years following the ratification of this
constitution nor oftener than once every five years.
The Congress shall provide for the implementation of the exercise of
this right.”
The initiative seeks to lift the term limits of all elective government officials and
it was opposed by numerous parties including Sen. Miriam Defensor who
opposes the act as she is the sponsor of a bill which she envisions as the law
which will give the constitutional provision on people’s initiative effect.
ISSUE
1.
2.
Whether there was already a law implemented by Congress to give
effect to said constitutional provision.
Whether the proposed initiative is an amendment or a revision.
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HELD
1. NONE. The constitutional provision is not self-executing, without
implementing legislation, it cannot operate. RA 6735, the law which Delfin
argues to be the implementing legislation of the constitutional provision is
deemed by the court to be insufficient. RA 6735 does not give effect to Sec. 2,
Art. XVII. It merely provides the rules for initiative and referendum on national
and local legislation and not on the Constitution. RA 6735 is incomplete,
wanting and inadequate in essential terms and conditions insofar as initiatives
on amendments to the Constitution are concerned. Comelec Resolution No.
2300 is also invalid as to its contents with deal with regulating the system of
initiative, only Congress is authorized by the Constitution to pass a law which
will implement the provision on initiative. Add to the fact that Resolution No.
2300 was issued under the authority of RA 6735 which has already been
decided by the Court to be insufficient in tackling the rules and regulations
necessary for the initiative provision of the Constitution.
2. Revision entails a total overhaul of the Constitution while amendment entails
something less than a revision. The system of initiative can only propose
amendments and not revisions.
The COMELEC is enjoined from entertaining or taking cognizance of any petition
for initiative on amendments of the Constitution until such time that a sufficient
law shall have been passed by Congress, which will validly provide for the
implementation of the system.
Additional Info:
The case also discussed on the proper way of starting a people’s initiative,
whether or not it will involve COMELEC help in collecting the required signatures
(estimated cost is P180) or whether the connection must be done by the people
themselves. In either case the argument is moot as there is now law yet which
determines how the people’s initiative could be exercised.
5.
LAMBINO v COMELEC
FACTS
On 15 February 2006, the group of Raul Lambino and Erico Aumentado
(“Lambino Group”) commenced gathering signatures for an initiative petition to
change the 1987 Constitution.
On 25 August 2006, the Lambino Group filed a petition with the COMELEC to
hold a plebiscite that will ratify their initiative petition under Section 5(b) and
(c) and Section 7 of RA 6735 (The Initiative and Referendum Act). The
proposed changes under the petition will shift the present BicameralPresidential system to a Unicameral-Parliamentary form of government.
The Lambino Group claims that: (a) their petition had the support of 6,327,952
individuals constituting at least 12% of all registered voters, with each
legislative district represented by at least 3% of its registered voters; and (b)
COMELEC election registrars had verified the signatures of the 6.3 million
individuals.
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The COMELEC, however, denied due course to the petition for lack of an
enabling law governing initiative petitions to amend the Constitution, pursuant
to the Supreme Cout’s ruling in Santiago vs. COMELEC.
ISSUE
Whether the Lambino Group's initiative petition complies with Section 2, Article
XVII of the Constitution on amendments to the Constitution through a people's
initiative
HELD
NO. Section 2, Article XVII of the Constitution is the governing provision that
allows a people’s initiative to propose amendments to the Constitution. While
this provision does not expressly state that the petition must set forth the full
text of the proposed amendments, the deliberations of the framers of our
Constitution clearly show that: (a) the framers intended to adopt the relevant
American jurisprudence on people’s initiative; and (b) in particular, the people
must first see the full text of the proposed amendments before they sign, and
that the people must sign on a petition containing such full text.
The essence of amendments “directly proposed by the people through initiative
upon a petition” is that the entire proposal on its face is a petition by the
people. This means two essential elements must be present.
First, the people must author and thus sign the entire proposal. No agent or
representative can sign on their behalf.
Second, as an initiative upon a petition, the proposal must be embodied in a
petition.
These essential elements are present only if the full text of the proposed
amendments is first shown to the people who express their assent by signing
such complete proposal in a petition. The full text of the proposed amendments
may be either written on the face of the petition, or attached to it. If so
attached, the petition must state the fact of such attachment. This is an
assurance that every one of the several millions of signatories to the petition
had seen the full text of the proposed amendments before – not after – signing.
Moreover, “an initiative signer must be informed at the time of signing of the
nature and effect of that which is proposed” and failure to do so is “deceptive
and misleading” which renders the initiative void.
In the case of the Lambino Group’s petition, there’s not a single word, phrase,
or sentence of text of the proposed changes in the signature sheet. Neither
does the signature sheet state that the text of the proposed changes is attached
to it. The signature sheet merely asks a question whether the people approve a
shift from the Bicameral-Presidential to the Unicameral- Parliamentary system
of government. The signature sheet does not show to the people the draft of
the proposed changes before they are asked to sign the signature sheet. This
omission is fatal.
An initiative that gathers signatures from the people without first showing to the
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people the full text of the proposed amendments is most likely a deception, and
can operate as a gigantic fraud on the people. That’s why the Constitution
requires that an initiative must be “directly proposed by the people…in a
petition” – meaning that the people must sign on a petition that contains the
full text of the proposed amendments. On so vital an issue as amending the
nation’s fundamental law, the writing of the text of the proposed amendments
cannot be hidden from the people under a general or special power of attorney
to unnamed, faceless, and unelected individuals.
6.
SANIDAD v COMELEC
FACTS
On 2 September 1976, President Marcos issued PD 991 calling for a national
referendum on 16 October 1976 for the Citizens Assemblies ("barangays") to
resolve, among other things, the issues of martial law, the interim assembly, its
replacement, the powers of such replacement, the period of its existence, the
length of the period for the exercise by the President of his present powers.
On 22 September 1976, the President issued another related decree, PD 1031,
amending the previous PD 991, by declaring the provisions of PD 229 providing
for the manner of voting and canvass of votes in "barangays" (Citizens
Assemblies) applicable to the national referendum-plebiscite of 16 October
1976. Quite relevantly, PD 1031 repealed inter alia, Section 4, of PD 991.
On the same date, the President issued PD 1033, stating the questions he
submitted to the people in the referendum-plebiscite on 16 October 1976. The
Decree recites in its "whereas" clauses that the people's continued opposition to
the convening of the interim National Assembly evinces their desire to have
such body abolished and replaced thru a constitutional amendment, providing
for a new interim legislative body, which will be submitted directly to the people
in the referendum-plebiscite of October 16. The Commission on Elections was
vested with the exclusive supervision and control of the October 1976 National
Referendum-Plebiscite.
Pablo C. Sanidad and Pablito V. Sanidad, father and son, commenced a petition
for Prohibition with Preliminary Injunction seeking to enjoin the Commission on
Elections from holding and conducting the Referendum Plebiscite on October
16; to declare without force and effect Presidential Decree Nos. 991 and 1033,
insofar as they propose amendments to the Constitution, as well as Presidential
Decree 1031, insofar as it directs the Commission on Elections to supervise,
control, hold, and conduct the Referendum-Plebiscite scheduled on 16 October
1976. They contend that under the 1935 and 1973 Constitutions there is no
grant to the incumbent President to exercise the constituent power to propose
amendments to the new Constitution. As a consequence, the ReferendumPlebiscite on October 16 has no constitutional or legal basis.
Another action for Prohibition with Preliminary Injunction was instituted by
Vicente M. Guzman, a delegate to the 1971 Constitutional Convention, asserting
that the power to propose amendments to, or revision of the Constitution
during the transition period is expressly conferred on the interim National
Assembly under action 16, Article XVII of the Constitution.
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Still another petition for Prohibition with Preliminary Injunction was filed on 5
October 1976 by Raul M. Gonzales, his son Raul Jr., and Alfredo Salapantan to
restrain the implementation of PDs relative to the forthcoming ReferendumPlebiscite of October 16.
ISSUE
Whether the President may call upon a referendum for the amendment of the
Constitution.
HELD
NO. Section 1 of Article XVI of the 1973 Constitution on Amendments ordains
that
1. Any amendment to, or revision of, this Constitution may be proposed
by the National Assembly upon a vote of three-fourths of all its
Members, or by a constitutional convention
2. The National Assembly may, by a vote of two-thirds of all its Members,
call a constitutional convention or, by a majority vote of all its
Members, submit the question of calling such a convention to the
electorate in an election.
Section 2 thereof provides that "Any amendment to, or revision of, this
Constitution shall be valid when ratified by a majority of the votes cast in
a plebiscite which shall be held not later than three months a after the
approval of such amendment or revision."
In the present period of transition, the interim National Assembly instituted in
the Transitory Provisions is conferred with that amending power. Section 15 of
the Transitory Provisions reads "The interim National Assembly, upon special
call by the interim Prime Minister, may, by a majority vote of all its Members,
propose amendments to this Constitution. Such amendments shall take effect
when ratified in accordance with Article Sixteen hereof." There are, therefore,
two periods contemplated in the constitutional life of the nation, i.e., period of
normalcy and period of transition. In times of normalcy, the amending process
may be initiated by the proposals of the (1) regular National Assembly upon a
vote of three-fourths of all its members; or (2) by a Constitutional Convention
called by a vote of two-thirds of all the Members of the National Assembly.
However the calling of a Constitutional Convention may be submitted to the
electorate in an election voted upon by a majority vote of all the members of
the National Assembly. In times of transition, amendments may be proposed by
a majority vote of all the Members of the interim National Assembly upon
special call by the interim Prime Minister.
In sensu striciore, when the legislative arm of the state undertakes the
proposals of amendment to a Constitution, that body is not in the usual function
of lawmaking. It is not legislating when engaged in the amending process.
Rather, it is exercising a peculiar power bestowed upon it by the fundamental
charter itself. In the Philippines, that power is provided for in Article XVI of the
1973 Constitution (for the regular National Assembly) or in Section 15 of the
Transitory Provisions (for the interim National Assembly). While ordinarily it is
the business of the legislating body to legislate for the nation by virtue of
constitutional conferment, amending of the Constitution is not legislative in
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character. In political science a distinction is made between constitutional
content of an organic character and that of a legislative character. The
distinction, however, is one of policy, not of law. Such being the case, approval
of the President of any proposed amendment is a misnomer. The prerogative of
the President to approve or disapprove applies only to the ordinary cases of
legislation. The President has nothing to do with proposition or adoption of
amendments to the Constitution.
7.
SBMA v COMELEC
FACTS
The Bases Conversion Development Act of 1992 created Subic Special Economic
Zone (SSEZ) and the petitioner to convert the Subic military reservation into
alternative productive uses. Petitioner is a stock corporation with the Republic
as its sole subscriber with a 20 billion worth of authorized capital stock fully
paid and subscribed into. On the other hand, the concurrence of the
Sanggunianang Panglungsod of the cities and the Sanggunanang Bayan of the
Municipalities are required to be a part of the SSEZ.
In 1993, the Sangguniang Bayan of Morong, Bataan, passed Pambayang
Kapasyahan Bilang 10, expressing therein its absolute concurrence to join the
SSEZ. Respondents, Garcia, Calimbas and their companions south to annul the
Pambayang Kapasyahan praying that the concurrence of Bayan of Morong to
join SSEZ should be conditioned on the reversion of Virgin Forests and Grande
Island among others. The respondents, unsatisfied, resorted to the power of
initiative before the Comelec en banc and it was denied on the ground that the
subject thereof was a resolution and not an ordinance.
In 1995, the president issued proclamation no 532 defining the metes and
bounds of the SSEZ including therein the Grande Island and the former naval
base within the territorial jurisdiction of the Municipality of Morong. As such, the
Comelec promulgated the assailed resolution providing for the rules and
guidelines to govern the conduct of the referendum proposing to annul or repeal
Kapasyahan Blg 10 of the Sangguniang Bayan of Morong, Bataan. Respondents
filed the present certiorari to assail the Comelec resolution.
ISSUE
Whether Comelec committed GADLEj in scheduling a local initiative that seeks
to amend a national law.
HELD: YES.
1. The process started by private respondents was an initiative but respondent
Comelec made preparations for a referendum only. In the body of the Comlelec
Resolution, the word referendum was repeated at least 27 times, but initiative
is not mentioned at all.
There are statutory and conceptual demarcations between a referendum and an
intitative. In enacting the “Initiative and Referendum Act, ” Congress
differentiated one term from the other:
a. Initiative- is the power of the people to propose amendments to the
Constitution or to propose and enact legislations through an election
called for the purpose.
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b.
c.
Indirect initiative is exercise of initiative by the people through a
proposition sent to Congress or the local legislative body for action.
Referendum- is the power of the electorate to approve or reject a
legislation through an election called for the purpose.
According to the Local government code:
a. Local initiative is the legal process whereby the registered voters of a
local government unit may directly propose, enact or amend any
ordinance
b. Local referendum is the legal process whereby the registered voters of
the local government units may approve, amend or reject any
ordinance enacted by the Sanggunian.
In other words, initiative is entirely the work of the electorate, referendum is
begun and consented to by the law making body. Initiative is a process of lawmaking by the people themselves without the participation and against the
wishes of their elected representatives, while referendum consists merely of the
electorate approving or rejecting what has been drawn up or enacted by a
legislative body.
2. The commission on elections has administrative and initiatory quasi-judicial
jurisdiction to pass upon the question of whether the proposal is sufficient in
form and language and whether such proposal are clearly and patently outside
the powers of the municipal council of Morong to enact and therefore violative
of the law.
The initiative on Pambansang Kapasyahan Blg 101 is remanded to the Comelec
for further proceedings.
8.
CLAUDIO v COMELEC
FACTS
Jovito Claudio was the duly elected mayor of Pasay City in the May 11, 1998.
On May 19, 1999, several barangay chairs formed an ad hoc committee for the
purpose of convening the PRA. Richard Advincula was designated chair. The
members of the PRA adopted Resolution No. 01, S-1999, initiating Claudio’s
recall. The petition for recall was filed on the Office of the City Mayor. The
COMELEC also posted the petition on the bulletin boards of certain public
places.
Oppositions to the petition were filed by Jovito Claudio, Rev. Ronald Langub,
and Roberto L. Angeles, alleging procedural and substantive defects in the
petition, to wit: (1) the signatures affixed to the resolution were actually meant
to show attendance at the PRA meeting; (2) most of the signatories were only
representatives of the parties concerned who were sent there merely to observe
the proceedings; (3) the convening of the PRA took place within the one-year
prohibited period; (4) the election case, filed by Wenceslao Trinidad in this
Court, seeking the annulment of the proclamation of petitioner Claudio as
mayor of Pasay City, should first be decided before recall proceedings against
petitioner could be filed; and (5) the recall resolution failed to obtain the
majority of all the members of the PRA, considering that 10 were actually
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double entries, were not duly accredited members of the barangays, 40
sangguniang kabataan officials had withdrawn their support, and 60 barangay
chairs executed affidavits of retraction.
The COMELEC granted the petition and dismissed the opposition. It ruled that
the 1,073 members who attended the May 29, 1999 meeting were more than
necessary to constitute the PRA, considering that its records showed the total
membership of the PRA was 1,790, while the statistics of the Department of
Interior and Local Government (DILG) showed that the total membership of the
PRA was 1,876. In either case, since only a majority is required to constitute
the PRA, clearly, a majority had been obtained in support of the recall
resolution. Hence, this petition.
ISSUE
Whether the word "Recall" in Paragraph (b) of §74 of the Local Government
Code includes the Convening of the Preparatory Recall Assembly and the Filing
by it of a Recall Resolution
HELD
YES. Recall is a process which begins with the convening of the preparatory,
recall assembly or the gathering of the signatures at least 25% of the registered
voters of a local government unit, and then proceeds to the filing of a recall
resolution or petition with the COMELEC, the verification of such resolution or
petition, the fixing of the date of the recall election, and the holding of the
election on the scheduled date. However, as used in paragraph (b) of § 74,
"recall" refers to the election itself by means of which voters decide whether
they should retain their local official or elect his replacement. Several reasons
can be cited in support of this conclusion.
First, § 74 deals with restrictions on the power of recall. It is in fact entitled
"Limitations on Recall." On the other hand, §69 provides that "the power of
recall ...shall be exercised by the registered voters of a local government unit to
which the local initiate recall proceedings but the power to elect an official into
office, the limitations in §74 cannot be deemed to apply to the entire recall
proceedings. In other words, the term "recall" in paragraph (b) refers only to
the recall election, excluding the convening of the PRA and the filing of a
petition for recall with the COMELEC, or the gathering of the signatures of at
least 25 % of the voters for a petition for recall. Thus, there may be several
PRAs held or petitions for recall filed with the COMELEC - there is no legal limit
on the number of times such processes may be resorted to. These are merely
preliminary steps for the purpose of initiating a recall. The limitations in §74
apply only to the exercise of the power of recall, which is vested in the
registered voters. It is this - and not merely, the preliminary steps required to
be taken to initiate a recall - which paragraph (b) of §74 seeks to limit by
providing that no recall shall take place within one year from the date of
assumption of office of an elective local official.
The second reason why the term "recall" in paragraph (b) refers to recall
election is to be found in the purpose of the limitation itself. There are two
limitations in paragraph (b) on the holding of recalls: (1) that no recall shall
take place within one year from the date of assumption of office of the official
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concerned, and (2) that no recall shall take place within one year immediately
preceding a regular local election. The purpose of the first limitation is to
provide a reasonable basis for judging the performance of an "The only logical
reason which we can ascribe for requiring the electors to wait one year before
petitioning for a recall election is to prevent premature action on their part in
voting to remove a newly elected official before having had sufficient time to
evaluate the soundness of his policies and decisions." The one-year limitation
was reckoned as of the filing of a petition for recall because the Municipal Code
involved in that case expressly provided that "no removal petition shall be filed
against any officer or until he has actually held office for at least twelve
months." But however the period of prohibition is determined, the principle
announced is that the purpose of the limitation is to provide a reasonable basis
for evaluating the performance of an elective local official. Hence, in this case,
as long as the election is held outside the one-year period, the preliminary
proceedings to initiate a recall can be held even before the end of the first year
in office of a local official.
Third, to construe the term "recall" in paragraph (b) as including the convening
of the PRA for the purpose of discussing the performance in office of elective
local officials would be to unduly restrict the constitutional right of speech and
of assembly of its members. The people cannot just be asked on the day of the
election to decide on the performance of their officials. The crystallization and
formation of an informed public opinion takes time. To hold, therefore, that the
first limitation in paragraph (b) includes the holding of assemblies for the
exchange of ideas and opinions among citizens is to unduly curtail one of the
most cherished rights in a free society. Indeed, it is wrong to assume that such
assemblies will always eventuate in a recall election. To the contrary, they may
result in the expression of confidence in the incumbent.
To sum up, the term "recall" in paragraph (b) refers to the recall election and
not to the preliminary proceedings to initiate recall -1. Because §74 speaks of
limitations on "recall" which, according to §69, is a power which shall be
exercised by the registered voters of a local government unit. Since the voters
do not exercise such right except in an election, it is clear that the initiation of
recall proceedings is not prohibited within the one-year period provided in
paragraph (b);2. Because the purpose of the first limitation in paragraph (b) is
to provide voters a sufficient basis for judging an elective local official, and final
judging is not done until the day of the election; and 3. Because to construe the
limitation in paragraph (b) as including the initiation of recall proceedings would
unduly curtail freedom of speech and of assembly guaranteed in the
Constitution.
As the recall election in Pasay City is set on April 15, 2000, more than one year
after petitioner assumed office as mayor of that city, the Court held that there
is no bar to its holding on that date.
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